Exhibit 10.14
================================================================================
CREDIT AGREEMENT
dated as of
October 13, 2000
among
▇▇▇▇▇▇▇ & ▇▇▇▇ FINANCIAL, INC.,
The Lenders Party Hereto,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent.
BANK OF AMERICA, N.A.,
as Documentation Agent
DEUTSCHE BANK AG,
as Syndication Agent
$220,000,000 REVOLVING CREDIT AND COMPETITIVE ADVANCE FACILITY
================================================================================
CHASE SECURITIES INC.,
as Advisor, Lead Arranger and Book Manager
TABLE OF CONTENTS
Page
TABLE OF CONTENTS
Page
----
ARTICLE I Definitions.............................................................................................1
SECTION 1.01. Defined Terms..............................................................................1
SECTION 1.02. Classification of Loans and Borrowings....................................................16
SECTION 1.03. Terms Generally...........................................................................16
SECTION 1.04. Accounting Terms; GAAP....................................................................16
ARTICLE II The Credits...........................................................................................16
SECTION 2.01. Commitments...............................................................................16
SECTION 2.02. Loans and Borrowings......................................................................17
SECTION 2.03. Requests for Revolving Borrowings.........................................................17
SECTION 2.04. Term Loans................................................................................18
SECTION 2.05. Procedure for Term Borrowing..............................................................18
SECTION 2.06. Competitive Bid Procedure.................................................................19
SECTION 2.07. Funding of Borrowings.....................................................................21
SECTION 2.08. Interest Elections........................................................................22
SECTION 2.09. Termination and Reduction of Commitments..................................................23
SECTION 2.10. Repayment of Loans; Evidence of Debt......................................................24
SECTION 2.11. Prepayment of Loans.......................................................................24
SECTION 2.12. Fees......................................................................................25
SECTION 2.13. Interest..................................................................................26
SECTION 2.14. Alternate Rate of Interest................................................................26
SECTION 2.15. Increased Costs...........................................................................27
SECTION 2.16. Break Funding Payments....................................................................28
SECTION 2.17. Taxes.....................................................................................29
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs...............................29
SECTION 2.19. Mitigation Obligations; Replacement of Lenders............................................31
SECTION 2.20. New Lenders; Commitment Increases.........................................................31
ARTICLE III Representations and Warranties.......................................................................32
SECTION 3.01. Organization; Powers......................................................................32
SECTION 3.02. Authorization; Enforceability.............................................................32
SECTION 3.03. Governmental Approvals; No Conflicts......................................................32
SECTION 3.04. Financial Condition; No Material Adverse Effect...........................................33
SECTION 3.05. Properties................................................................................33
SECTION 3.06. Litigation and Environmental Matters......................................................33
SECTION 3.07. Compliance with Laws and Agreements.......................................................34
SECTION 3.08. Investment and Holding Company Status.....................................................34
SECTION 3.09. Taxes.....................................................................................34
Page
----
SECTION 3.10. ERISA.....................................................................................34
SECTION 3.11. Disclosure................................................................................35
SECTION 3.12. No Default................................................................................35
SECTION 3.13. Subsidiaries..............................................................................35
SECTION 3.14. Federal Regulations.......................................................................35
SECTION 3.15. No Burdensome Restrictions................................................................35
ARTICLE IV Conditions............................................................................................36
SECTION 4.01. Effective Date............................................................................36
SECTION 4.02. Each Credit Event.........................................................................37
ARTICLE V Affirmative Covenants..................................................................................38
SECTION 5.01. Financial Statements and Other Information................................................38
SECTION 5.02. Notices of Material Events................................................................39
SECTION 5.03. Existence; Conduct of Business............................................................39
SECTION 5.04. Payment of Obligations....................................................................40
SECTION 5.05. Maintenance of Properties; Insurance......................................................40
SECTION 5.06. Books and Records; Inspection Rights......................................................40
SECTION 5.07. Compliance with Laws......................................................................40
SECTION 5.08. Use of Proceeds...........................................................................40
SECTION 5.09. Environmental Laws........................................................................41
ARTICLE VI Negative Covenants....................................................................................41
SECTION 6.01. Financial Condition Covenants.............................................................41
SECTION 6.02. Indebtedness..............................................................................41
SECTION 6.03. Liens.....................................................................................42
SECTION 6.04. Fundamental Changes.......................................................................42
SECTION 6.05. Investments, Loans, Advances, Guarantees and Acquisitions; Hedging Agreements.............43
SECTION 6.06. Restricted Payments.......................................................................44
SECTION 6.07. Transactions with Affiliates..............................................................44
SECTION 6.08. Restrictive Agreements....................................................................44
SECTION 6.09. Capital Expenditures......................................................................44
SECTION 6.10. Sales and Leasebacks......................................................................45
SECTION 6.11. Changes in Fiscal Periods.................................................................45
SECTION 6.12. Negative Pledge Clauses...................................................................45
SECTION 6.13. Optional Payments and Modifications of Certain Debt Instruments...........................45
ARTICLE VII Events of Default....................................................................................45
ARTICLE VIII The Administrative Agent............................................................................47
ARTICLE IX Miscellaneous.........................................................................................49
SECTION 9.01. Notices...................................................................................49
SECTION 9.02. Waivers; Amendments.......................................................................50
SECTION 9.03. Expenses; Indemnity; Damage Waiver........................................................50
SECTION 9.04. Successors and Assigns....................................................................52
Page
----
SECTION 9.05. Survival..................................................................................54
SECTION 9.06. Counterparts; Integration; Effectiveness..................................................54
SECTION 9.07. Severability..............................................................................54
SECTION 9.08. Right of Setoff...........................................................................54
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process................................55
SECTION 9.10. WAIVER OF JURY TRIAL......................................................................55
SECTION 9.11. Headings..................................................................................56
SECTION 9.12. Confidentiality...........................................................................56
SECTION 9.13. Interest Rate Limitation..................................................................56
ANNEXES
Annex A Pricing Grid
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.06 -- Disclosed Matters
Schedule 3.13 -- Subsidiaries
Schedule 6.02 -- Existing Indebtedness
Schedule 6.03 -- Existing Liens
Schedule 6.08 -- Existing Restrictions
Schedule 6.10 -- Sale/Leaseback Properties
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Opinion of Borrower's General Counsel
Exhibit C-1 -- Form of Report Under Section 5.01(e)(A)
Exhibit C-2 -- Form of Report Under Section 5.01(e)(B)
Exhibit D -- Form of Competitive Bid
CREDIT AGREEMENT dated as of October 13, 2000, among ▇▇▇▇▇▇▇ & ▇▇▇▇
FINANCIAL, INC. (the "BORROWER"), the LENDERS party hereto, and THE CHASE
MANHATTAN BANK, as Administrative Agent.
W I T N E S S E T H:
- - - - - - - - - -
1. The Borrower is party to the Credit Agreement dated as of October 14,
1999 (the "EXISTING CREDIT AGREEMENT") among the Borrower, the lenders party
thereto, and The Chase Manhattan Bank, as administrative agent.
2. The Borrower, the Lenders and the Administrative Agent desire to replace
the Existing Credit Agreement with this Agreement upon and subject to the terms
and conditions hereinafter set forth.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINED TERMS. As used in this Agreement, the following terms
have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"ADJUSTED LIBO RATE" means, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" means The Chase Manhattan Bank, in its capacity as
administrative agent for the Lenders hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"AGGREGATE REVENUE BASE" means the sum of Revenue Bases for all W&R Funds
and for all other assets managed by the Borrower or any Subsidiary of the
Borrower for other entities.
"AGREEMENT" means this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"APPLICABLE PERCENTAGE" means, with respect to any Lender, the percentage
of the total Commitments represented by such Lender's Commitment. If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"APPLICABLE RATE" means, for any day, with respect to any ABR Loan or
Eurodollar Loan, or with respect to the facility fees payable hereunder, as the
case may be, the applicable rate per annum determined pursuant to the Pricing
Grid attached hereto as Annex A.
"APPROVED FUND" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity that administers or
manages a Lender.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"AVAILABILITY PERIOD" means the period from and including the Effective
Date to but excluding the earlier of the Revolving Credit Termination Date and
the date of termination of the Commitments.
"BOARD" means the Board of Governors of the Federal Reserve System of the
United States of America.
"BORROWER" means ▇▇▇▇▇▇▇ & ▇▇▇▇ Financial, Inc., a Delaware corporation.
"BORROWING" means (a) Revolving Loans or Term Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, or (b) a Competitive Loan or
group of Competitive Loans of the same Type made on the same date and as to
which a single Interest Period is in effect.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
remain closed; PROVIDED that, when used in connection with a Eurodollar Loan,
the term "BUSINESS DAY" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"CAPITAL EXPENDITURES" means, for any period, with respect to any Person,
the aggregate of all expenditures by such Person and its Subsidiaries for the
acquisition or leasing
2
(pursuant to a capital lease) of fixed or capital assets
or additions to equipment (including replacements, capitalized repairs and
improvements during such period) that should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries.
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"CAPITAL STOCK" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"CHANGE IN CONTROL" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof) other than
the Borrower, of shares representing more than 25% of the aggregate ordinary
voting power represented by the issued and outstanding capital stock of the
Borrower; (b) occupation of a majority of the seats (other than vacant seats) on
the board of directors of the Borrower by Persons who were neither (i) nominated
by the board of directors of the Borrower nor (ii) appointed by directors so
nominated; or (c) the acquisition of direct or indirect Control of the Borrower
by any Person or group.
"CHANGE IN LAW" means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) compliance by any Lender (or, for purposes of
Section 2.15(b), by any lending office of such Lender or by such Lender's
holding company, if any) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued after
the date of this Agreement.
"CLASS", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Term
Loans or Competitive Loans.
"CLOSING DATE" means the date on which the conditions precedent set forth
in Section 4.01 shall have been satisfied, which date is October 13, 2000.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COMMITMENT" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans and Term Loans hereunder, expressed as an amount
representing the maximum aggregate outstanding principal amount of such Lender's
Revolving Loans and Term Loans hereunder, as such commitment may be (a) reduced
from time to time pursuant to Section 2.09, (b) reduced or increased from time
to time pursuant to assignments by
3
or to such Lender pursuant to Section 9.04 and (c) increased from time to time
pursuant to Section 2.20. The initial amount of each Lender's Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Commitment, as applicable, and the initial
aggregate amount of the Commitments of the Lenders (as set forth on Schedule
2.01) is $220,000,000.
"COMMITMENT UTILIZATION PERCENTAGE" means on any day the percentage
equivalent of a fraction (a) the numerator of which is the sum of the aggregate
outstanding principal amount of Loans and (b) the denominator of which is the
aggregate amount of the Commitments (or, on any day after termination of the
Commitments, the aggregate amount of the Commitments in effect immediately
preceding such termination).
"COMPETITIVE BID" means an offer by a Lender to make a Competitive Loan in
accordance with Section 2.06.
"COMPETITIVE BID RATE" means, with respect to any Competitive Bid, the
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"COMPETITIVE BID REQUEST" means a request by the Borrower for Competitive
Bids in accordance with Section 2.06.
"COMPETITIVE LOAN" means a Loan made pursuant to Section 2.06.
"CONFIDENTIAL INFORMATION MEMORANDUM" means the Confidential Information
Memorandum dated September 2000 and furnished to the Lenders.
"CONSOLIDATED EBITDA" means, for any period, Consolidated Net Income for
such period PLUS, without duplication and to the extent reflected as a charge in
the statement of such Consolidated Net Income for such period, the sum of (a)
income tax expense, (b) interest expense, amortization or writeoff of debt
discount and debt issuance costs and commissions, discounts and other fees and
charges associated with Indebtedness (including the Loans), (c) depreciation and
amortization expense, (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (e) any extraordinary, unusual or
non-recurring non-cash expenses or losses (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income
for such period, non-cash losses on sales of assets outside of the ordinary
course of business), PROVIDED, that the amounts referred to in this clause (e)
shall not, in the aggregate, exceed $1,000,000 for any fiscal year of the
Borrower, and (f) any other non-cash charges. For the purposes of calculating
Consolidated EBITDA for any period of four consecutive fiscal quarters (each, a
"Reference Period") pursuant to any determination of the Consolidated Leverage
Ratio, (i) if at any time during such Reference Period the Borrower or any
Subsidiary shall have made any Material Disposition, the Consolidated EBITDA for
such Reference Period shall be reduced by an amount equal to the Consolidated
EBITDA (if positive) attributable to the property that is the subject of such
Material Disposition for such Reference Period or increased by an amount equal
to the Consolidated EBITDA (if negative) attributable thereto for such Reference
Period and (ii) if during such Reference Period the Borrower or any Subsidiary
shall have made a Material Acquisition, Consolidated EBITDA for such Reference
Period shall be calculated after giving PRO FORMA effect thereto as if such
Material Acquisition
4
occurred on the first day of such Reference Period. As used in this definition,
"Material Acquisition" means any acquisition of property or series of related
acquisitions of property that (a) constitutes assets comprising all or
substantially all of an operating unit of a business or constitutes all or
substantially all of the common stock of a Person and (b) involves the payment
of consideration by the Borrower and its Subsidiaries in excess of $1,000,000;
and "Material Disposition" means any Disposition of property or series of
related Dispositions of property that yields gross proceeds to the Borrower or
any of its Subsidiaries in excess of $1,000,000.
"CONSOLIDATED INTEREST COVERAGE RATIO" means, for any period, the ratio of
(a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense for
such period.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, interest expense
(including that attributable to Capital Lease Obligations) of the Borrower and
its Subsidiaries for such period with respect to all outstanding Indebtedness of
the Borrower and its Subsidiaries (including all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net costs under Hedging Agreements in respect of
interest rates to the extent such net costs are allocable to such period in
accordance with GAAP).
"CONSOLIDATED LEVERAGE RATIO" means, as at the last day of any period, the
ratio of (a) Consolidated Total Debt on such day to (b) Consolidated EBITDA for
such period.
"CONSOLIDATED NET INCOME" means, for any period, the consolidated net
income (or loss) of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; PROVIDED that there shall be
excluded (a) the income (or deficit) of any Person accrued prior to the date it
becomes a Subsidiary of the Borrower or is merged into or consolidated with the
Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person
(other than a Subsidiary of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of any
Subsidiary of the Borrower to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation or Requirement of Law
applicable to such Subsidiary.
"CONSOLIDATED TOTAL DEBT" means, at any date, the aggregate principal
amount of all Indebtedness of the Borrower and its Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CONTROL" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
5
"DEFAULT" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"DISCLOSED MATTERS" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"DISTRIBUTION FEES" means all fees payable pursuant to a plan contemplated
by Rule 12b-1 under the Investment Company Act of 1940, as amended, in
connection with the distribution of shares of W&R Funds that are open-end funds.
"DOLLARS" or "$" refers to lawful money of the United States of America.
"EFFECTIVE DATE" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"ENVIRONMENTAL LAWS" means all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Material or to health
and safety matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not incorporated)
that, together with the Borrower, is treated as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of
the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention
6
to terminate any Plan or Plans or to appoint a trustee to administer any Plan;
(f) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"EURODOLLAR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate (or, in the case of
a Competitive Loan, the LIBO Rate).
"EVENT OF DEFAULT" has the meaning assigned to such term in Article VII.
"EXCESS UTILIZATION DAY" means each day on which the Commitment Utilization
Percentage exceeds the applicable percentage set forth in Section 2.12(b)(i) and
Section 2.12(b)(ii).
"EXCLUDED TAXES" means, with respect to the Administrative Agent, any
Lender, or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.19(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
or is attributable to such Foreign Lender's failure or inability to comply with
Section 2.17(e), except to the extent that such Foreign Lender's assignor (if
any) was entitled, at the time of assignment, to receive additional amounts from
the Borrower with respect to such withholding tax pursuant to Section 2.17(a).
"EXISTING CREDIT AGREEMENT" has the meaning set forth in the recitals
hereto.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"FINANCIAL OFFICER" means the chief financial officer, principal accounting
officer, treasurer or controller of the Borrower.
7
"FIXED RATE" means, with respect to any Competitive Loan (other than a
Eurodollar Competitive Loan), the fixed rate of interest per annum specified by
the Lender making such Competitive Loan in its related Competitive Bid.
"FIXED RATE LOAN" means a Competitive Loan bearing interest at a Fixed
Rate.
"FOREIGN LENDER" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"FUND" means any Person that is (or will be) engaged in making, purchasing,
holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United States
of America.
"GOVERNMENTAL AUTHORITY" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body (including
self-regulatory body), court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government, including, in any event, the Securities and
Exchange Commission and any applicable state securities commission or similar
body.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "PRIMARY OBLIGOR") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; PROVIDED, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
8
"HEDGING AGREEMENT" means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty, (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances and
(k) net liabilities of such Person under Hedging Agreements. The Indebtedness of
any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INTEREST ELECTION REQUEST" means a request by the Borrower to convert or
continue a Revolving Borrowing in accordance with Section 2.08.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan, the last
day of each March, June, September and December, (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration,
after the first day of such Interest Period, and (c) with respect to any Fixed
Rate Loan, the last day of the Interest Period applicable to the Borrowing of
which such Loan is a part and, in the case of a Fixed Rate Borrowing with an
Interest Period of more than 90 days' duration (unless otherwise specified in
the applicable Competitive Bid Request), each day prior to the last day of such
Interest Period that occurs at intervals of 90 days' duration after the first
day of such Interest Period, and any other dates that are specified in the
applicable Competitive Bid Request as Interest Payment Dates with respect to
such Borrowing.
"INTEREST PERIOD" means (a) with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect, and (b) with respect to any Fixed Rate
Borrowing, the period (which shall not be less than seven days or more than 364
days) commencing on the date of such Borrowing and ending on the date
9
specified in the applicable Competitive Bid Request; PROVIDED, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurodollar Borrowing only, such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day, (ii) any Interest Period pertaining to a Eurodollar
Borrowing that commences on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the last calendar
month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period, and (iii) any Interest Period that would
otherwise extend beyond the Revolving Credit Termination Date or beyond the date
final payment is due on the Term Loans shall end on the Revolving Credit
Termination Date or such date of final payment, as the case may be. For purposes
hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and, in the case of a Revolving Borrowing, thereafter shall be
the effective date of the most recent conversion or continuation of such
Borrowing.
"LENDERS" means the Persons listed on Schedule 2.01 and any other Person
that shall have become a party hereto pursuant to an Assignment and Acceptance,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Acceptance.
"LIBO RATE" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow ▇▇▇▇▇ Markets Screen
(or on any successor or substitute page of such Screen, or any successor to or
substitute for such Screen, providing rate quotations comparable to those
currently provided on such page of such Screen, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO RATE" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
"LOANS" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"MANAGEMENT CONTRACT" means an agreement, written or oral, pursuant to
which the Borrower or any Subsidiary of the Borrower provides (i) investment
advisory, management or administrative services to a W&R Fund or (ii) investment
advisory or management services to
10
any Person, including, without limitation, unregistered investment companies and
personal or corporate investment accounts.
"MARGIN" means, with respect to any Competitive Loan bearing interest at a
rate based on the LIBO Rate, the marginal rate of interest, if any, to be added
to or subtracted from the LIBO Rate to determine the rate of interest applicable
to such Loan, as specified by the Lender making such Loan in its related
Competitive Bid.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, assets, property, prospects or condition, financial or otherwise, of
the Borrower and its Subsidiaries taken as a whole, or (b) the validity or
enforceability of this Agreement or the rights or remedies of the Administrative
Agent or the Lenders hereunder.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans), or
obligations in respect of one or more Hedging Agreements, of any one or more of
the Borrower and its Subsidiaries in an aggregate principal amount exceeding
$5,000,000. For purposes of determining Material Indebtedness, the "principal
amount" of the obligations of the Borrower or any Subsidiary in respect of any
Hedging Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that the Borrower or such Subsidiary would be
required to pay if such Hedging Agreement were terminated at such time.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"NET ASSET VALUE" means, at any date of determination and with respect to
any investment company or account manager, the "current net asset" value (as
defined in Rule 2a-4 under the Investment Company Act of 1940), in the
aggregate, of all outstanding redeemable securities issued by such investment
company at such date.
"OTHER TAXES" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"PERMITTED ACQUISITION" means an acquisition of a Person, or the assets of
a Person or a line of business of a Person, in the same or a related line of
business as the Borrower, PROVIDED that after giving effect to such acquisition
(a) no Default or Event of Default shall have occurred and be continuing, (b)
the Borrower shall be in compliance, on a PRO FORMA basis, as of the end of the
most recent fiscal quarter of the Borrower with the provisions of Section 6.01,
and (c) in the case of an acquisition involving aggregate consideration valued
at $20,000,000 or more, at least three Business Days prior to the date of such
acquisition, the Borrower shall have furnished to the Administrative Agent and
the Lenders a compliance certificate to the effect of
11
clauses (a) and (b) showing in reasonable detail the calculations supporting the
determination of compliance, on such a PRO FORMA basis, with such provisions.
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) Carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary;
and
(f) judgment Liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII, so long as such judgment
Liens are not in effect for more than 45 days;
PROVIDED that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, an
investment-grade credit rating from S&P or from ▇▇▇▇▇'▇;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic
12
office of any commercial bank organized under the laws of the United States
of America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000;
(d) investments in newly created funds or investments intended for
sale to newly created funds advised or managed by the Borrower and its
Subsidiaries, in an aggregate amount (based upon book value on the books of
the Borrower and its Subsidiaries) of not more than $25,000,000 at any
time;
(e) investments in funds advised or managed by the Borrower and its
Subsidiaries for the benefit of the Borrower's and its Subsidiaries' senior
executives and portfolio management personnel in conjunction with various
nonqualified deferral compensation arrangements adopted by the Borrower and
its Subsidiaries, in an aggregate amount (based on book value on the books
of the Borrower and its Subsidiaries) of not more than $25,000,000 at any
time;
(f) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in clause
(c) above; and
(g) other than those contained in (a), (b), (c) and (e) above, United
States dollar denominated fixed income securities and syndicated bank loans
not to exceed $7,500,000 per issuer, with the exception of United States
government securities, and not to exceed $7,500,000 per country, with the
exception of the United States of America.
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"PRIME RATE" means the rate of interest per annum publicly announced
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"REGISTER" has the meaning set forth in Section 9.04.
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"REQUIRED LENDERS" means, (a) prior to any conversion of Revolving
Loans to Term Loans in accordance with Sections 2.04 and 2.05, Lenders having
Revolving Credit Exposures and unused Commitments representing at least 51% of
the sum of the total Revolving
13
Credit Exposures and unused Commitments at such time; PROVIDED that, for
purposes of declaring the Loans to be due and payable pursuant to Article VII,
and for all purposes after the Loans become due and payable pursuant to Article
VII or the Commitments expire or terminate, the outstanding Competitive Loans of
the Lenders shall be included in their respective Revolving Credit Exposures in
determining the Required Lenders, and (b) thereafter, Lenders having Term Loans
with a total outstanding principal amount representing at least 51% of the sum
of the total outstanding principal amount of Term Loans at such time.
"REQUIREMENT OF LAW" means, as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"RESTRICTED PAYMENT" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any shares of any class
of capital stock of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such shares of capital stock of the Borrower
or any option, warrant or other right to acquire any such shares of capital
stock of the Borrower.
"REVENUE BASE" means the sum of (A) the product of (i) with respect
to each W&R Fund, the Net Asset Value of the W&R Fund on the date of calculation
and with respect to assets managed for other entities, the market value or Net
Asset Value of such assets on the date of calculation and (ii) the rate provided
for in the applicable Management Contract for determining the annual fee
required for such advisory, management or administrative services on such date
and (B) Distribution Fees for such W&R Fund.
"REVOLVING BORROWING REQUEST" means a request by the Borrower for a
Revolving Borrowing in accordance with Section 2.03.
"REVOLVING CREDIT EXPOSURE" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans at such time.
"REVOLVING CREDIT TERMINATION DATE" means October 12, 2001 or such
earlier date as the Commitments shall terminate pursuant to the terms hereof
(or, if such day is not a Business Day, the next preceding Business Day).
"REVOLVING LOAN" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's.
"STATUTORY RESERVE RATE" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board or other Governmental Authority to which the
Administrative Agent is subject with respect to the
14
Adjusted LIBO Rate. Such reserve percentages shall include those imposed
pursuant to Regulation D of the Board. Eurodollar Loans shall be deemed to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"SUBSIDIARY" means, with respect to any Person (the "PARENT") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"SUBSIDIARY" means any subsidiary of the Borrower.
"TAXES" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TERM BORROWING REQUEST" means a request by the Borrower for a
Revolving Borrowing in accordance with Section 2.05.
"TERMINATION DATE" means the date that is six (6) months after the
Revolving Credit Termination Date.
"TERM LOAN" means a Loan made pursuant to Section 2.04.
"TRANSACTIONS" means the execution, delivery and performance by the
Borrower of this Agreement, the borrowing of Loans and the use of the proceeds
thereof.
"TYPE", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the Alternate
Base Rate or, in the case of a Competitive Loan or Borrowing, the LIBO Rate or a
Fixed Rate.
"W&R FUND" means all closed-end funds and open-end mutual funds
sponsored by the Borrower or any of its Subsidiaries or for which the Borrower
or any of its Subsidiaries provides investment advisory, management,
administrative, supervisory, consulting, underwriting or similar services.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
15
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of this
Agreement, Loans may be classified and referred to by Class (E.G., a "Revolving
Loan" or "Term Loan") or by Type (E.G., a "Eurodollar Loan") or by Class and
Type (E.G., a "Eurodollar Revolving Loan" or "Eurodollar Term Loan"). Borrowings
also may be classified and referred to by Class (E.G., a "Revolving Borrowing"
or "Term Borrowing") or by Type (E.G., a "Eurodollar Borrowing") or by Class and
Type (E.G., a "Eurodollar Revolving Borrowing" of "Eurodollar Term Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; PROVIDED
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions set forth
herein, each Lender agrees to make Revolving Loans to the Borrower from time to
time during the Availability Period in an aggregate principal amount that will
not result in (a) such Lender's Revolving Credit Exposure exceeding such
Lender's Commitment or (b) the sum of the total
16
Revolving Credit Exposures plus the aggregate principal amount of outstanding
Competitive Loans exceeding the total Commitments. Within the foregoing limits
and subject to the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Revolving Loans.
SECTION 2.02. LOANS AND BORROWINGS. (a) Each Revolving Loan shall be made
as part of a Borrowing consisting of Revolving Loans made by the Lenders ratably
in accordance with their respective Commitments. Each Competitive Loan shall be
made in accordance with the procedures set forth in Section 2.06. The failure of
any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder; provided that the Commitments and
Competitive Bids of the Lenders are several and no Lender shall be responsible
for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.14, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith, and (ii) each Competitive Borrowing shall be comprised
entirely of Eurodollar Loans or Fixed Rate Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; PROVIDED that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $5,000,000;
PROVIDED that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments. Each Competitive
Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $5,000,000. Borrowings of more than one Type and
Class may be outstanding at the same time; PROVIDED that there shall not at any
time be more than a total of ten (10) Eurodollar Revolving Borrowings
outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Revolving Credit Termination Date.
SECTION 2.03. REQUESTS FOR REVOLVING BORROWINGS. To request a Revolving
Borrowing, the Borrower shall notify the Administrative Agent of such request by
telephone prior to 10:00 a.m., New York City time (a) three Business Days before
the date of the proposed Borrowing in the case of a Eurodollar Borrowing or (b)
one Business Day before the date of the proposed Borrowing in the case of an ABR
Borrowing. Each such telephonic Revolving Borrowing Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Revolving Borrowing Request in a form approved
by the Administrative Agent and signed by the Borrower. Each such telephonic and
written Revolving Borrowing Request shall specify the following information in
compliance with Section 2.02:
17
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.07.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Revolving Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to be made as
part of the requested Borrowing.
SECTION 2.04. TERM LOANS. The Revolving Loans outstanding at the
close of business on the Revolving Credit Termination Date shall, at the option
of the Borrower by notice given to the Administrative Agent as provided in
Section 2.05, convert on such date into term loans (the "TERM LOANS") to the
Borrower. The Term Loans may from time to time be (a) Eurodollar Loans, (b) ABR
Loans or (c) a combination thereof, as determined by the Borrower and notified
to the Administrative Agent in accordance with Sections 2.05 and 2.08.
SECTION 2.05. PROCEDURE FOR TERM BORROWING. To request the
conversion of the Revolving Credit Loans to Term Loans as contemplated in
Section 2.04, the Borrower shall notify the Administrative Agent of such request
by telephone prior to 10:00 A.M., New York City time, (a) three Business Days
prior to the Revolving Credit Termination Date, if all or any part of the Term
Loans are to be initially Eurodollar Borrowing or (b) one Business Day prior to
the Revolving Credit Termination Date, otherwise. Such telephonic Term Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Term Borrowing Request in a
form approved by the Administrative Agent and signed by the Borrower. Each such
telephonic and written Term Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested conversion;
(ii) the date of such conversion, which shall be a Business Day;
(iii) whether after giving effect to such conversion, the outstanding
Term Loans are to consist of an ABR Borrowing or a Eurodollar Borrowing, or
a combination thereof; and
18
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period".
If no election as to the Type of Term Loans is specified, then the requested
Term Loans shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Term Borrowing, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Term Borrowing Request in accordance with this Section,
the Administrative Agent shall advise each Lender of the details thereof and of
the amount of such Lender's Loan converted as part of the requested Borrowing.
The aggregate principal amount of the Term Loans shall be equal to the aggregate
principal amount of the Revolving Loans then outstanding and the Term Loans
shall be made by conversion of such Revolving Loans, without any payments being
made by the Lenders.
SECTION 2.06. COMPETITIVE BID PROCEDURE. (a) Subject to the terms and
conditions set forth herein, from time to time during the Availability Period
the Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; PROVIDED
that the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans at any time shall not exceed
the total Commitments. To request Competitive Bids, the Borrower shall notify
the Administrative Agent of such request by telephone, in the case of a
Eurodollar Borrowing, not later than 10:00 a.m., New York City time, four
Business Days before the date of the proposed Borrowing and, in the case of a
Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one
Business Day before the date of the proposed Borrowing; PROVIDED that the
Borrower may submit up to (but not more than) two Competitive Bid Requests on
the same day, but a Competitive Bid Request shall not be made within five
Business Days after the date of any previous Competitive Bid Request, unless any
and all such previous Competitive Bid Requests shall have been withdrawn or all
Competitive Bids received in response thereto rejected. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy
to the Administrative Agent of a written Competitive Bid Request in a form
approved by the Administrative Agent and signed by the Borrower. Each such
telephonic and written Competitive Bid Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing or a
Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period";
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.07; and
19
(vi) the maturity date of such Borrowing, which shall not be less than
seven or more than 364 days from the date of such Borrowing and shall not
be later than the Revolving Credit Termination Date.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to the Borrower in response to a Competitive Bid Request.
Each Competitive Bid by a Lender must be substantially in the form of Exhibit D
and must be received by the Administrative Agent by telecopy, in the case of a
Eurodollar Competitive Borrowing, not later than 9:30 a.m., New York City time,
three Business Days before the proposed date of such Competitive Borrowing, and
in the case of a Fixed Rate Borrowing, not later than 9:30 a.m., New York City
time, on the proposed date of such Competitive Borrowing. Competitive Bids that
do not conform substantially to the form of Exhibit D may be rejected by the
Administrative Agent, and the Administrative Agent shall notify the applicable
Lender as promptly as practicable. Each Competitive Bid shall specify (i) the
principal amount (which shall be a minimum of $5,000,000 and an integral
multiple of $1,000,000 and which may equal the entire principal amount of the
Competitive Borrowing requested by the Borrower) of the Competitive Loan or
Loans that the Lender is willing to make, (ii) the Competitive Bid Rate or Rates
at which the Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal
places) and (iii) the Interest Period applicable to each such Loan and the last
day thereof.
(c) The Administrative Agent shall promptly notify the Borrower by
telecopy of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Borrower may
accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurodollar Competitive Borrowing,
not later than 10:30 a.m., New York City time, three Business Days before the
date of the proposed Competitive Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 10:30 a.m., New York City time, on the proposed date
of the Competitive Borrowing; PROVIDED that (i) the failure of the Borrower to
give such notice shall be deemed to be a rejection of each Competitive Bid, (ii)
the Borrower shall not accept a Competitive Bid made at a particular Competitive
Bid Rate if the Borrower rejects a Competitive Bid made at a lower Competitive
Bid Rate, (iii) the aggregate amount of the Competitive Bids accepted by the
Borrower shall not exceed the aggregate amount of the requested Competitive
Borrowing specified in the related Competitive Bid Request, (iv) to the extent
necessary to comply with clause (iii) above, the Borrower may accept Competitive
Bids at the same Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata
in accordance with the amount of each such Competitive Bid, and (v) except
pursuant to clause (iv) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal
20
amount of $5,000,000 and an integral multiple of $1,000,000; PROVIDED FURTHER
that if a Competitive Loan must be in an amount less than $5,000,000 because of
the provisions of clause (iv) above, such Competitive Loan may be for a minimum
of $1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by the
Borrower. A notice given by the Borrower pursuant to this paragraph shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
by telecopy whether or not its Competitive Bid has been accepted (and, if so,
the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Lender, it shall submit such Competitive Bid directly
to the Borrower at least one quarter of an hour earlier than the time by which
the other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.07. FUNDING OF BORROWINGS. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds, to
an account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Revolving Borrowing
Request, Term Borrowing Request or Competitive Bid Request.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the Federal Funds Effective Rate or (ii) in the
case of the Borrower, the interest rate applicable to ABR Loans. If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute
such Lender's Loan included in such Borrowing.
21
SECTION 2.08. INTEREST ELECTIONS. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Revolving Borrowing
Request and, in the case of a Eurodollar Revolving Borrowing, shall have an
initial Interest Period as specified in such Revolving Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type
or to continue such Borrowing and, in the case of a Eurodollar Revolving
Borrowing, may elect Interest Periods therefor, all as provided in this Section.
The Borrower may elect different options with respect to different portions of
the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding the Loans comprising such Borrowing, and the
Loans comprising each such portion shall be considered a separate Borrowing.
This Section shall not apply to Competitive Borrowings, which may not be
converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Revolving Borrowing Request would be required under Section 2.03 if the Borrower
were requesting a Revolving Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing (in
which case the information to be specified pursuant to clauses (iii) and (iv)
below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term "Interest
Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
22
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
continued as a Eurodollar Revolving Borrowing with an Interest Period of one
month. Notwithstanding any contrary provision hereof, (a) if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Borrower, then, so long as an Event of
Default is continuing (i) no outstanding Revolving Borrowing may be converted to
or continued as a Eurodollar Borrowing, (ii) no outstanding Term Borrowing may
be converted to a Eurodollar Borrowing and (iii) unless repaid, each Eurodollar
Revolving Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto, and (b) no Revolving Loan or Term Loan may
be converted into or continued as a Eurodollar Borrowing after the date that is
one month or 30 days, respectively, prior to the Revolving Credit Termination
Date or the Termination Date, as the case may be.
SECTION 2.09. TERMINATION AND REDUCTION OF COMMITMENTS. (a) Unless
previously terminated, the Commitments shall terminate on the Revolving Credit
Termination Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; PROVIDED that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $1,000,000 and not less
than $10,000,000 and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.11, the sum of the Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans would exceed the
total Commitments.
(c) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable; PROVIDED that a notice of termination of
the Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent.
Termination of the Commitments shall also terminate the obligation of the
Lenders to make the Term Loans. Each reduction of the Commitments shall be made
ratably among the Lenders in accordance with their respective Commitments.
SECTION 2.10. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender (i) the then unpaid principal amount of each Revolving
Loan on the Revolving Credit Termination Date (or such earlier date on which the
Revolving Loans become due and payable pursuant to Article VII), (ii) the
principal amount of the
23
Term Loan of such Lender on the Termination Date (or the then unpaid principal
amount of such Term Loan, on the date that the Term Loans become due and payable
pursuant to Article VII), and (iii) the then unpaid principal amount of each
Competitive Loan on the last day of the Interest Period applicable to such Loan
(or such earlier date on which the Competitive Loans become due and payable
pursuant to Article VII).
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be PRIMA FACIE evidence of the existence and
amounts of the obligations recorded therein; PROVIDED that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.11. PREPAYMENT OF LOANS. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (b) of this Section;
PROVIDED that the Borrower shall not have the right to prepay any Competitive
Loan without the prior consent of the Lender thereof.
(b) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment, or (ii) in
the case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m.,
New York City time, one Business Day before the date of prepayment. Each such
notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid; PROVIDED
that, if a notice of prepayment is given in connection with a conditional notice
of termination of the Commitments as contemplated by Section 2.09, then such
notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.09. Promptly following receipt of any
24
such notice relating to a Revolving Borrowing, the Administrative Agent shall
advise the Lenders of the contents thereof. Each partial prepayment of any
Revolving Borrowing shall be in an amount that would be permitted in the case of
an advance of a Revolving Borrowing of the same Type as provided in Section
2.02. Each prepayment of a Revolving Borrowing shall be applied ratably to the
Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.13. Amounts prepaid on
account of Term Loans may not be reborrowed.
SECTION 2.12. FEES. (a) Prior to conversion of Revolving Loans into
Term Loans pursuant to Section 2.04, the Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the Applicable Rate on the daily amount of the Commitment of such
Lender (whether used or unused), during the period from and including the
Closing Date to but excluding the date on which such Commitment terminates;
PROVIDED that, if such Lender continues to have any outstanding Loans after its
Commitment terminates and such Loans are not Term Loans that have been converted
from Revolving Loans pursuant to Section 2.04, then such facility fee shall
continue to accrue on the daily amount of such Lender's outstanding Loans from
and including the date on which its Commitment terminates to but excluding the
date on which such Lender ceases to have any outstanding Loans. Accrued facility
fees shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Commitments terminate,
commencing on the first such date to occur after the date hereof; PROVIDED that
any facility fees accruing after the date on which the Commitments terminate
shall be payable on demand. All facility fees shall be computed on the basis of
a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(b) Prior to conversion of Revolving Loans into Term Loans pursuant to
Section 2.04, the Borrower agrees to pay to the Administrative Agent for the
account of each Lender a utilization fee equal to (i) 0.10% per annum for each
day on which the Commitment Utilization Percentage exceeds 25%, which fee shall
accrue on the daily amount of such Lender's outstanding Loans for each Excess
Utilization Day during the period from and including the day on which the
Commitment Utilization Percentage exceeds 25% to but excluding the day on which
the Commitment Utilization Percentage no longer exceeds 25% and (ii) 0.20% per
annum for each day on which the Commitment Utilization Percentage exceeds 50%,
which fee shall accrue on the daily amount of such Lender's outstanding Loans
for each Excess Utilization Day during the period from and including the day on
which the Commitment Utilization Percentage exceeds 50% to but excluding the day
on which the Commitment Utilization Percentage no longer exceeds 50%. Accrued
utilization fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Commitments
terminate, commencing on the first such date to occur after the date hereof;
PROVIDED that any utilization fees accruing after the date on which the
Commitments terminate shall be payable on demand. All utilization fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
25
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees, to the Lenders. Fees paid shall not be refundable
under any circumstances.
SECTION 2.13. INTEREST. (a) The Loans comprising each ABR Borrowing
shall bear interest at a rate per annum equal to the Alternate Base Rate plus
the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at a rate per annum equal to (i) in the case of a Eurodollar Loan, the Adjusted
LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate, or (ii) in the case of a Eurodollar Competitive Loan, the LIBO
Rate for the Interest Period in effect for such Borrowing plus (or minus, as
applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at a rate per annum equal
to the Fixed Rate applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided above or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR Loans as provided above.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan; PROVIDED that (i) interest accrued pursuant
to paragraph (d) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment, (iii) in the event of any conversion of any Eurodollar
Loan prior to the end of the current Interest Period therefor, accrued interest
on such Loan shall be payable on the effective date of such conversion and (iv)
all accrued interest shall be payable upon termination of the Commitments.
(f) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
SECTION 2.14. ALTERNATE RATE OF INTEREST. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period; or
26
(b) the Administrative Agent is advised by the Required Lenders (or,
in the case of a Eurodollar Competitive Loan, the Lender that is required to
make such Loan) that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for
such Interest Period will not adequately and fairly reflect the cost to such
Lenders (or Lender) of making or maintaining their Loans (or its Loan) included
in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective, (ii) if any Revolving Borrowing Request requests a Eurodollar
Revolving Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii)
any request by the Borrower for a Eurodollar Competitive Borrowing shall be
ineffective; PROVIDED that (A) if the circumstances giving rise to such notice
do not affect all the Lenders, then requests by the Borrower for Eurodollar
Competitive Borrowings may be made to Lenders that are not affected thereby and
(B) if the circumstances giving rise to such notice affect only one Type of
Borrowings, then the other Type of Borrowings shall be permitted.
SECTION 2.15. INCREASED COSTS. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, any Lender (except any such reserve requirement reflected in
the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans or Fixed Rate Loans made
by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or to reduce the amount of any sum received or receivable by such
Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made hereunder, to a level below
that which such Lender or such Lender's holding company could have achieved but
for such Change in Law (taking into consideration such Lender's policies and the
policies of such Lender's holding company with respect to capital adequacy),
then from time to time the Borrower will pay to such Lender such additional
amount or amounts as will compensate such Lender or such Lender's holding
company for any such reduction suffered.
27
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; PROVIDED that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than six months prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's intention to claim compensation therefor;
PROVIDED FURTHER that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the six-month period referred to above shall
be extended to include the period of retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section, a Lender
shall not be entitled to compensation pursuant to this Section in respect of any
Competitive Loan if the Change in Law that would otherwise entitle it to such
compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a) the payment
of any principal of any Eurodollar Loan or Fixed Rate Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an
Event of Default), (b) the conversion of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Revolving Loan or Term Loan on the date
specified in any notice delivered pursuant hereto (regardless of whether such
notice is permitted to be revocable under Section 2.11(b) and is revoked in
accordance herewith), (d) the failure to borrow any Competitive Loan after
accepting the Competitive Bid to make such Loan, or (e) the assignment of any
Eurodollar Loan or Fixed Rate Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.19, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, the loss to any Lender attributable to any such event shall be
deemed to include an amount determined by such Lender to be equal to the excess,
if any, of (i) the amount of interest that such Lender would pay for a deposit
equal to the principal amount of such Loan for the period from the date of such
payment, conversion, failure or assignment to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, convert
or continue, the duration of the Interest Period that would have resulted from
such borrowing, conversion or continuation) if the interest rate payable on such
deposit were equal to the Adjusted LIBO Rate (in the case of a Eurodollar Loan)
for such Interest Period, over (ii) the amount of interest that such Lender
would earn on such principal amount for such period if such Lender were to
invest such principal amount for such period at the interest rate that would be
bid by such Lender (or an affiliate of such Lender) for dollar deposits from
other banks in the eurodollar market at the commencement of such period. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrower and shall be conclusive absent
28
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.17. TAXES. (a) Any and all payments by or an account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; PROVIDED that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (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) the Administrative Agent or Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each
Lender within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
paid by the Administrative Agent or such Lender, as the case may be, and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by the Borrower, such properly completed and
executed documentation prescribed by applicable law as will permit such payments
to be made without withholding or at a reduced rate.
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees, or under Section 2.15, 2.16 or
2.17, or otherwise) prior to 12:00 noon, New York City time, on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for
29
purposes of calculating interest thereon. All such payments shall be made to the
Administrative Agent, c/o The Loan and Agency Services Group at the address set
forth in Section 9.01, except that payments pursuant to Sections 2.15, 2.16,
2.17 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, to pay interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, to pay principal then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal then due to such
parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or Term Loans resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans or Term Loans and accrued interest thereon than the proportion
received by any other Lender, then the Lender receiving such greater proportion
shall purchase (for cash at face value) participations in the Revolving Loans or
Term Loans of other Lenders to the extent necessary so that the benefit of all
such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Revolving Loans or Term Loans; PROVIDED that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such
30
amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.07(b) or 2.18(d), then the Administrative Agent may,
in its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. (a) If
any Lender requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement
(other than any outstanding Competitive Loans held by it) to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); PROVIDED that (i) the Borrower shall have received the
prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans (other than Competitive
Loans), accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.15 or payments required to be made pursuant to
Section 2.17, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
SECTION 2.20. NEW LENDERS; COMMITMENT INCREASES. (a) With the consent
of the Borrower and the Administrative Agent (which, in the case of the
Administrative Agent, shall not be unreasonably withheld), (i) one or more
additional banks or other financial institutions may become a party to this
Agreement by executing a supplement hereto, in form and substance satisfactory
to such bank or other financial institution, the Borrower and the
31
Administrative Agent, whereupon such bank or other financial institution (a "New
Lender") shall become a Lender for all purposes hereof and to the same extent as
if originally a party hereto and shall be bound by and entitled to the benefits
of this Agreement, and Schedule 2.01 hereto shall be deemed to be amended to add
the name, address and Commitment of such New Lender and (ii) any Lender may
increase the amount of its Commitment by executing a supplement hereto, in form
and substance satisfactory to such Lender, the Borrower and the Administrative
Agent, whereupon such Lender shall be bound by and entitled to the benefits of
this Agreement with respect to the full amount of its Commitment as so
increased, and Schedule 2.01 hereto shall be deemed to be amended to reflect
such increase in the Commitment of such Lender. In no event may the aggregate
Commitments be increased above $330,000,000 pursuant to any supplement described
in this Section 2.20(a).
(b) If on the date upon which a bank or other financial institution
becomes a New Lender or upon which a Lender's Commitment is changed pursuant to
Section 2.20(a), any Revolving Loans are then outstanding, the Borrower shall
borrow Revolving Loans from such Lender in such amount and with such Interest
Period such that, after giving effect thereto, the quotient of (x) the Revolving
Loan of such Lender of each Type and, in the case of Eurodollar Loans, with each
Interest Period and (y) such Lender's Commitment is equal to the corresponding
comparable quotient of each other Lender. Any Eurodollar Borrowing borrowed
pursuant to the preceding sentence shall bear interest at a rate equal to the
respective interest rates then applicable to the Eurodollar Revolving Loans of
the other Lenders or such other rate as may be agreed upon by the Borrower and
such Lender.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of the Borrower and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Transactions are
within the Borrower's corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder action. This Agreement has
been duly executed and delivered by the Borrower and constitutes a legal, valid
and binding obligation of the Borrower, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any
32
Governmental Authority, except such as have been obtained or made and are in
full force and effect, (b) will not violate any applicable law or regulation or
the charter, by-laws or other organizational documents of the Borrower or any of
its Subsidiaries or any order of any Governmental Authority, (c) will not
violate or result in a default under any indenture, agreement or other
instrument binding upon the Borrower or any of its Subsidiaries or its assets,
or give rise to a right thereunder to require any payment to be made by the
Borrower or any of its Subsidiaries, and (d) will not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE EFFECT. (a) The
Borrower has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income, stockholders equity and cash flows (i) as of and for
the fiscal years ended 1998 and 1999, reported on by KPMG LLP, independent
public accountants, and (ii) as of and for the fiscal quarters and the portion
of the fiscal year ended March 31, 2000 and June 30, 2000, certified by its
principal accounting officer. Such financial statements present fairly, in all
material respects, the financial position and results of operations and cash
flows of the Borrower and its consolidated Subsidiaries as of such dates and for
such periods in accordance with GAAP, subject to year-end audit adjustments and
the absence of footnotes in the case of the statements referred to in clause
(ii) above. The Borrower and its Subsidiaries do not have any material
Guarantees, contingent liabilities and liabilities for taxes, or any long-term
leases or unusual forward or long-term commitments, including any interest rate
or foreign currency swap or exchange transaction or other obligation in respect
of derivatives, that are not reflected in the most recent financial statements
referred to in this paragraph.
(b) Since December 31, 1999, there has been no event, development or
circumstance that has had or could reasonably be expected to have a Material
Adverse Effect.
SECTION 3.05. PROPERTIES. (a) Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, and none of such property is
subject to any Lien except as permitted by Section 6.03.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material
33
Adverse Effect, neither the Borrower nor any of its Subsidiaries (i) has failed
to comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv) knows of any basis for
any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of the
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments (including any material investment
advisory or management agreements) binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.08. INVESTMENT AND HOLDING COMPANY STATUS. (a) Neither the
Borrower nor any of its Subsidiaries is (i) an "investment company", or a
company "controlled" by an "investment company", each as defined in, or subject
to regulation under, the Investment Company Act of 1940, or (ii) a "holding
company" as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935. Except for net capital and other requirements
imposed on registered broker-dealers, neither the Borrower nor any of its
Subsidiaries is subject to any regulation under any Requirement of Law (other
than Regulation X of the Board) that limits its ability to incur Indebtedness.
(b) The Borrower and each Subsidiary of the Borrower which is engaged
in investment advisory or investment management activities is, and at all times
will be, duly registered as an investment adviser as and to the extent required
under the Investment Advisers Act of 1940, as amended; and each Subsidiary of
the Borrower which is engaged in broker-dealer business is, and at all times
will be, duly registered as a broker-dealer as and to the extent required under
the Securities Exchange Act of 1934, as amended, and, as and to the extent
required, is, and at all times will be, a member in good standing of the
National Association of Securities Dealers, Inc.
SECTION 3.09. TAXES. Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not,
34
as of the date of the most recent financial statements reflecting such amounts,
exceed by more than $5,000,000 the fair market value of the assets of such Plan,
and the present value of all accumulated benefit obligations of all underfunded
Plans (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed by more than $10,000,000
the fair market value of the assets of all such underfunded Plans.
SECTION 3.11. DISCLOSURE. The Borrower has disclosed to the Lenders
all agreements, instruments and corporate or other restrictions to which it or
any of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the reports, financial statements, certificates
or other information furnished by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; PROVIDED that,
with respect to projected financial information, the Borrower represents only
that such information was prepared in good faith based upon assumptions believed
to be reasonable at the time.
SECTION 3.12. NO DEFAULT. Neither the Borrower nor any of its Subsidiaries
is in default under or with respect to any of its Contractual Obligations in any
respect that could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
SECTION 3.13. SUBSIDIARIES. Except as disclosed to the Administrative
Agent by the Borrower in writing from time to time after the Closing Date, (a)
Schedule 3.13 sets forth the name and jurisdiction of incorporation of each
Subsidiary and, as to each such Subsidiary, the percentage of each class of
Capital Stock owned by the Borrower and (b) there are no outstanding
subscriptions, options, warrants, calls, rights or other agreements or
commitments (other than stock options or restricted stock granted to employees
or directors and directors' qualifying shares) of any nature relating to any
Capital Stock of the Borrower or any Subsidiary.
SECTION 3.14. FEDERAL REGULATIONS. No part of the proceeds of any
Loans will be used for "buying" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U as now and
from time to time hereafter in effect in any manner that violates the provisions
of the Regulations of the Board or for any other purpose that violates the
provisions of the Regulations of the Board. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in
Regulation U. No more than 25% of the consolidated assets of the Borrower and
its Subsidiaries (excluding treasury shares) consist of "margin stock" under
Regulation U as now and from time to time hereafter in effect.
SECTION 3.15. NO BURDENSOME RESTRICTIONS. No Requirement of Law or
Contractual Obligation of the Borrower could reasonably be expected to have a
Material Adverse Effect.
35
ARTICLE IV
CONDITIONS
SECTION 4.01. EFFECTIVE DATE. The obligations of the Lenders to make
Loans hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of the General Counsel of the Borrower, substantially
in the form of Exhibit B, and covering such other matters relating to the
Borrower, this Agreement or the Transactions as the Required Lenders shall
reasonably request. The Borrower hereby requests such counsel to deliver
such opinion.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of the
Borrower, the authorization of the Transactions and any other legal matters
relating to the Borrower, this Agreement or the Transactions, all in form
and substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02 without
giving effect to the parenthetical set forth in paragraph (a) of Section
4.02.
(e) The Administrative Agent shall have received evidence satisfactory
to it that simultaneously with the making of the initial Loans on the
Closing Date, the Borrower will have repaid in full all amounts outstanding
under the Existing Credit Agreement and the commitments of the lenders
under the Existing Credit Agreement will have been terminated, and the
Administrative Agent shall have received the promissory notes issued under
the Existing Credit Agreement marked "cancelled".
(f) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all reasonable
out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder.
(g) All governmental and third party approvals necessary in connection
with the continuing operations of the Borrower and its Subsidiaries and the
transactions
36
contemplated hereby shall have been obtained and be in full force and
effect, and all applicable waiting periods shall have expired without any
action being taken or threatened by any competent authority that would
restrain, prevent or otherwise impose adverse conditions on the financing
contemplated hereby.
(h) The Lenders shall have received (i) audited consolidated financial
statements of the Borrower for the 1998 and 1999 fiscal years and (ii)
unaudited interim consolidated financial statements of the Borrower for
each quarterly period ended subsequent to the date of the latest applicable
financial statements delivered pursuant to clause (i) of this paragraph as
to which such financial statements are available, and such financial
statements shall not, in the reasonable judgment of the Lenders, reflect
any material adverse change in the consolidated financial condition of the
Borrower, as reflected in the financial statements or projections contained
in the Confidential Information Memorandum.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on
October 13, 2000 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 4.02. EACH CREDIT EVENT. The obligation of each Lender to make
a Loan on the occasion of any Borrowing (including, without limitation, its
initial Loan) is subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Borrower set forth in
this Agreement (with the exception of the representation and warranty
contained in Section 3.04(b)) shall be true and correct on and as of the
date of such Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
Each Borrowing, the conversion of the Revolving Loans into Term Loans pursuant
to Sections 2.04 and 2.05, and the increase of the aggregate Commitments
pursuant to Section 2.20, shall be deemed to constitute a representation and
warranty by the Borrower on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section, PROVIDED that (i) such conversion of the
Revolving Loans into Term Loans and (ii) such increase of the aggregate
Commitments shall also be deemed to constitute a representation and warranty by
the Borrower that the matters specified in Section 3.04(b) are true and correct
on and as of the date thereof.
37
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Borrower
will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower,
the annual report of the Borrower on Form 10-K filed by the Borrower with
the Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all of the functions of said Commission;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, the quarterly report of the
Borrower on Form 10- Q filed by the Borrower with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or all
of the functions of said Commission;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Borrower (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Section 6.01 and (iii)
stating whether any change in GAAP or in the application thereof has
occurred since the date of the audited financial statements referred to in
Section 3.04 and, if any such change has occurred, specifying the effect of
such change on the financial statements accompanying such certificate;
(d) promptly after the same become publicly available, copies of all
annual reports on Form 10-K, quarterly reports on Form 10-Q and all reports
on Form 8-K, and all proxy statements, filed by the Borrower or any
Subsidiary with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of said Commission, or
with any national securities exchange, or distributed by the Borrower to
its shareholders generally, as the case may be;
(e) after the end of each calendar month, (A) a schedule of the Net
Asset Value of the investment companies and accounts managed by the
Borrower and its Subsidiaries on the last day of such calendar month and
certain other information, substantially in the form of Exhibit C-1 and (B)
a schedule showing the calculation of the Aggregate Revenue Base as of the
end of such calendar month, and an analysis of changes from the preceding
calendar month, substantially in the form of Exhibit C-2, or in such other
form as may be reasonably satisfactory to the Administrative Agent; and
(f) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or
38
compliance with the terms of this Agreement, as the Administrative Agent or
any Lender may reasonably request.
SECTION 5.02. NOTICES OF MATERIAL EVENTS. The Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate
amount exceeding $5,000,000;
(d) any suspension or termination of the registration of the Borrower
or any of its Subsidiaries as an investment adviser under the Investment
Advisers Act of 1940, as amended, or any cancellation or expiration without
renewal of any material investment advisory agreement or similar contract
to which the Borrower or any of its Subsidiaries is a party; and
(e) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. EXISTENCE; CONDUCT OF BUSINESS. The Borrower will, and
will cause each of its Subsidiaries to, (a) do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; PROVIDED that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
6.04, and (b) comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
39
SECTION 5.04. PAYMENT OF OBLIGATIONS. The Borrower will, and will
cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. MAINTENANCE OF PROPERTIES; INSURANCE. The Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.
SECTION 5.06. BOOKS AND RECORDS; INSPECTION RIGHTS. The Borrower will,
and will cause each of its Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested.
SECTION 5.07. COMPLIANCE WITH LAWS. The Borrower will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property and maintain all
registrations and memberships with any Governmental Authority, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.08. USE OF PROCEEDS. The proceeds of the Loans will be used
to finance the payment by the Borrower of outstanding Indebtedness under the
Existing Credit Agreement, to pay related fees and expenses and for general
corporate purposes, including but not limited (i) to repurchase shares of the
Borrower's Class A and Class B Common Stock and (ii) to consummate Permitted
Acquisitions. No part of the proceeds of any Loan will be used, whether directly
or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations U and X.
40
SECTION 5.09. ENVIRONMENTAL LAWS. The Borrower will, and will cause
each of its Subsidiaries to, (a) comply in all material respects with all
applicable Environmental Laws, and obtain and comply in all material respects
with and maintain any and all licenses, approvals, notifications, registrations
or permits required by applicable Environmental Laws, and (b) conduct and
complete all investigations, studies, sampling and testing, and all remedial,
removal and other actions required under Environmental Laws and promptly comply
in all material respects with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws, except in each case to
the extent that non-compliance therewith could not reasonably be expected to
result in a Material Adverse Effect.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full,
the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. FINANCIAL CONDITION COVENANTS.
(a) CONSOLIDATED LEVERAGE RATIO. The Borrower shall not permit the
Consolidated Leverage Ratio as at the last day of any period of four consecutive
fiscal quarters of the Borrower ending with any fiscal quarter to equal or
exceed the ratio of 3.0 to 1.0.
(b) CONSOLIDATED INTEREST COVERAGE RATIO. The Borrower shall not
permit the Consolidated Interest Coverage Ratio for any period of four
consecutive fiscal quarters of the Borrower ending with any fiscal quarter to be
less than or equal to the ratio of 4.0 to 1.0.
SECTION 6.02. INDEBTEDNESS. The Borrower will not permit any
Subsidiary to create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness existing on the date hereof and set forth in Schedule
6.02, but not any extensions, renewals or replacements of any such
Indebtedness and without increasing, or shortening the maturity of, the
principal amount thereof;
(b) Indebtedness of any Subsidiary to the Borrower or any other
Subsidiary;
(c) Guarantees by any Subsidiary of Indebtedness of the Borrower or
any other Subsidiary;
(d) Indebtedness of any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on
any such assets prior to the acquisition thereof, and extensions, renewals
and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; PROVIDED that (i) such Indebtedness
is incurred prior to or within 90 days after such acquisition or the
completion of such construction or
41
improvement and (ii) the aggregate principal amount of Indebtedness
permitted by this clause (d) shall not exceed $10,000,000 at any time
outstanding;
(e) Indebtedness of any Person that becomes a Subsidiary after the
date hereof; PROVIDED that such Indebtedness exists at the time such Person
becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary;
(f) Indebtedness of any Subsidiary as an account party in respect of
trade letters of credit; and
(g) other unsecured Indebtedness in an aggregate principal amount not
exceeding $25,000,000 at any time outstanding.
SECTION 6.03. LIENS. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 6.03;
PROVIDED that (i) such Lien shall not apply to any other property or asset
of the Borrower or any Subsidiary and (ii) such Lien shall secure only
those obligations which it secures on the date hereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; PROVIDED that
(i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (ii)
such Lien shall not apply to any other property or assets of the Borrower
or any Subsidiary and (iii) such Lien shall secure only those obligations
which it secures on the date of such acquisition or the date such Person
becomes a Subsidiary, as the case may be; and
(d) Liens on property, plant and equipment acquired, constructed or
improved by the Borrower or any Subsidiary; PROVIDED that (i) such security
interests secure Indebtedness permitted by clause (d) of Section 6.02, (ii)
such security interests and the Indebtedness secured thereby are incurred
prior to or within 90 days after such acquisition or the completion of such
construction or improvement, (iii) the Indebtedness secured thereby does
not exceed 70% of the cost of acquiring, constructing or improving such
property, plant and equipment and (iv) such security interests shall not
apply to any other property or assets of the Borrower or any Subsidiary.
SECTION 6.04. FUNDAMENTAL CHANGES. (a) The Borrower will not, and will
not permit any Subsidiary to, merge into or consolidate with any other Person,
or permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions) all or substantially
42
all of its assets, or all or substantially all of the stock of any of its
Subsidiaries (in each case, whether now owned or hereafter acquired), or
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing (i) any
other Person, including a Subsidiary, may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation, (ii) any
Subsidiary may merge into any Subsidiary in a transaction in which the surviving
entity is a Subsidiary, (iii) any Subsidiary may sell, transfer, lease or
otherwise dispose of its assets to the Borrower or to another Subsidiary, (iv)
any Subsidiary may liquidate or dissolve if the Borrower determines in good
faith that such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders, and (v) the
Borrower may merge into or consolidate with another Person in a transaction in
which such other Person is the surviving entity if such other Person is
organized and validly existing under the laws of the United States or any State
thereof and by operation of law or otherwise assumes all obligations of the
Borrower hereunder and such assumption is evidenced by an opinion of counsel to
such other Person satisfactory in form and substance to the Administrative
Agent; PROVIDED that any such merger involving a Person that is not a wholly
owned Subsidiary immediately prior to such merger shall not be permitted unless
also permitted by Section 6.05.
(b) The Borrower will not, and will not permit any of its Subsidiaries
to, engage to any material extent in any business other than businesses of the
type conducted by the Borrower and its Subsidiaries on the date of execution of
this Agreement and businesses reasonably related thereto.
SECTION 6.05. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND
ACQUISITIONS; HEDGING AGREEMENTS. (a) The Borrower will not, and will not permit
any of its Subsidiaries to, purchase, hold or acquire (including pursuant to any
merger with any Person that was not a wholly owned Subsidiary prior to such
merger) any capital stock, evidences of indebtedness or other securities
(including any option, warrant or other right to acquire any of the foregoing)
of, make or permit to exist any loans or advances to, Guarantee any obligations
of, or make or permit to exist any investment or any other interest in, any
other Person, or purchase or otherwise acquire (in one transaction or a series
of transactions) any assets of any other Person constituting a business unit,
except:
(i) Permitted Investments;
(ii) investments by the Borrower existing on the date hereof in the
capital stock of its Subsidiaries;
(iii) loans or advances made by the Borrower to any Subsidiary and
made by any Subsidiary to the Borrower or any other Subsidiary;
(iv) Guarantees constituting Indebtedness permitted by Section 6.02;
(v) Permitted Acquisitions; and
(vi) other investments, loans, advances, guarantees or acquisitions in
an aggregate principal amount not exceeding $20,000,000 at any time
outstanding.
43
(b) The Borrower will not, and will not permit any of its Subsidiaries
to, enter into any Hedging Agreement, other than Hedging Agreements entered into
in the ordinary course of business to hedge or mitigate risks to which the
Borrower or any Subsidiary is exposed in the conduct of its business or the
management of its liabilities.
SECTION 6.06. RESTRICTED PAYMENTS. The Borrower will not, and will not
permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except (a) the Borrower or any
of its Subsidiaries may declare and pay dividends with respect to its capital
stock provided that, in the case of any such declaration or payment by the
Borrower, no Default or Event of Default has occurred or is continuing or would
result therefrom, (b) the Borrower may make Restricted Payments pursuant to and
in accordance with stock option plans or other benefit plans for management or
employees of the Borrower and its Subsidiaries and (c) the Borrower may, in
addition to the foregoing, repurchase shares of the Borrower's Class A and Class
B Common Stock.
SECTION 6.07. TRANSACTIONS WITH AFFILIATES. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Borrower and its wholly owned Subsidiaries not
involving any other Affiliate and (c) any Restricted Payment permitted by
Section 6.06.
SECTION 6.08. RESTRICTIVE AGREEMENTS. The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly, enter into, incur
or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon (a) the ability of the Borrower or any Subsidiary
to create, incur or permit to exist any Lien upon any of its property or assets,
or (b) the ability of any Subsidiary to pay dividends or other distributions
with respect to any shares of its capital stock or to make or repay loans or
advances to the Borrower or any other Subsidiary or to Guarantee Indebtedness of
the Borrower or any other Subsidiary; PROVIDED that (i) the foregoing shall not
apply to restrictions and conditions imposed by law or by this Agreement, (ii)
the foregoing shall not apply to restrictions and conditions existing on the
date hereof identified on Schedule 6.08 (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such
restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness and (v) clause (a) of the foregoing shall not
apply to customary provisions in leases restricting the assignment thereof.
SECTION 6.09. CAPITAL EXPENDITURES. The Borrower will not, and will
not permit any of its Subsidiaries to, make or commit to make any Capital
Expenditure, except
44
Capital Expenditures of the Borrower and its Subsidiaries in
the ordinary course of business not exceeding $25,000,000 in the aggregate from
the date hereof.
SECTION 6.10. SALES AND LEASEBACKS. The Borrower will not, and will
not permit any of its Subsidiaries to, enter into any arrangement with any
Person providing for the leasing by the Borrower or any Subsidiary of real or
personal property that has been or is to be sold or transferred by the Borrower
or such Subsidiary to such Person or to any other Person to whom funds have been
or are to be advanced by such Person on the security of such property or rental
obligations of the Borrower or such Subsidiary (a "SALE/LEASEBACK TRANSACTION"),
except Sale/Leaseback Transactions entered into with respect to the real
property listed on Schedule 6.10.
SECTION 6.11. CHANGES IN FISCAL PERIODS. The Borrower will not permit
the fiscal year of the Borrower to end on a day other than December 31 or change
the Borrower's method of determining fiscal quarters.
SECTION 6.12. NEGATIVE PLEDGE CLAUSES. The Borrower will not, and will
not permit any of its Subsidiaries to, enter into or suffer to exist or become
effective any agreement that prohibits or limits the ability of the Borrower or
any of its Subsidiaries to create, incur, assume or suffer to exist any Lien
upon any of its property or revenues, whether now owned or hereafter acquired,
to secure its obligations under this Agreement other than (a) this Agreement and
(b) any agreements governing any purchase money Liens or Capital Lease
Obligations otherwise permitted hereby (in which case, any prohibition or
limitation shall only be effective against the assets financed thereby).
SECTION 6.13. OPTIONAL PAYMENTS AND MODIFICATIONS OF CERTAIN DEBT
INSTRUMENTS. The Borrower will not permit any of its Subsidiaries to make or
offer to make any optional or voluntary payment, prepayment, repurchase or
redemption of or otherwise optionally or voluntarily defease any Indebtedness,
or amend, modify, waive or otherwise change, or consent or agree to any
amendment, modification, waiver or other change to, any of the terms relating to
the payment or prepayment of principal of or interest on, any such Indebtedness
(other than any such amendment, modification, waiver or other change that would
extend the maturity or reduce the amount of any payment of principal thereof or
reduce the rate or extend any date for payment of interest thereon).
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan when and
as the same shall become due and payable, whether at the due date thereof
or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this
45
Agreement, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on behalf
of the Borrower or any Subsidiary in or in connection with this Agreement
or any amendment or modification hereof, or in any report, certificate,
financial statement or other document furnished pursuant to or in
connection with this Agreement or any amendment or modification hereof,
shall prove to have been materially incorrect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to the
Borrower's existence) or 5.08 or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof from
the Administrative Agent (given at the request of any Lender) to the
Borrower;
(f) the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of
any Material Indebtedness, when and as the same shall become due and
payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; PROVIDED that this clause (g)
shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower or any Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Subsidiary or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or
other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate
46
manner, any proceeding or petition described in clause (h) of this Article,
(iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower
or any Subsidiary or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in
writing or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000 shall be rendered against the Borrower, any
Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Borrower or any
Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse
Effect; or
(m) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Except as provided below, each of the Lenders hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions
47
on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders, and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Subsidiaries that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders or
in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made by any other Person in or in connection with this Agreement,
(ii) the contents of any certificate, report or other document delivered by any
other Person hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness (other than its
own due execution) or genuineness of this Agreement or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing reasonably believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers through Related Parties of the Administrative
Agent. The exculpatory provisions of the preceding paragraphs shall apply to the
Related Parties of the Administrative
48
Agent, and shall apply to their activities in connection with the syndication of
the credit facilities provided for herein as well as activities as
Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender 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 Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Administrative Agent, to The Chase Manhattan Bank,
c/o The Loan and Agency Services Group, 1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to Chase
49
Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of
▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(c) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. WAIVERS; AMENDMENTS. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; PROVIDED that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.18(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, (v)
increase the aggregate Commitments above $330,000,000, without the written
consent of each Lender, or (vi) change any of the provisions of this Section or
the definition of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders required to waive, amend or modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender; PROVIDED FURTHER that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent hereunder without the prior written consent of the
Administrative Agent.
SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) The Borrower
shall pay (i) all reasonable, documented out-of-pocket expenses incurred by the
Administrative Agent
50
and its Affiliates in amounts previously agreed to in writing and the reasonable
fees, charges and disbursements of counsel for the Administrative Agent, in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated) and (ii) all
out-of-pocket expenses incurred by the Administrative Agent or any Lender,
including the fees, charges and disbursements of any counsel for the
Administrative Agent or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights
under this Section, or in connection with the Loans made, including in
connection with any workout, restructuring or negotiations in respect thereof.
(b) The Borrower shall indemnify the Administrative Agent and each
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "INDEMNITEE") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities, costs and related expenses,
including the fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of this Agreement or any
agreement or instrument contemplated hereby, the performance by the parties
hereto of their respective obligations hereunder or the consummation of the
Transactions or any other transactions contemplated hereby, (ii) any Loan or the
use of the proceeds therefrom, (iii) any actual or alleged presence or release
of Hazardous Materials on or from any property owned or operated by the Borrower
or any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; PROVIDED that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities, costs or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
PROVIDED that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than
5 days after written demand therefor.
51
SECTION 9.04. 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 permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans at the time owing to it); PROVIDED that (i) except
in the case of an assignment to a Lender or an Affiliate of a Lender, each of
the Borrower and the Administrative Agent must give their prior written consent
to such assignment (which consent shall not be unreasonably withheld), (ii)
except in the case of an assignment to a Lender or an Affiliate of a Lender or
an assignment of the entire remaining amount of the assigning Lender's
Commitment, and the Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or principal outstanding balance
of the Term Loan of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000 or, in the case of any assignment of a Term Loan, $1,000,000, unless
each of the Borrower and the Administrative Agent otherwise consent, (iii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement with respect
to the Loan or the Commitment assigned, except that this clause (iii) shall not
apply to rights in respect of outstanding Competitive Loans, (iv) the parties to
each assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500 (the obligation to pay such fee to be shared equally by the assignor and
assignee), and (v) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire; PROVIDED FURTHER that
any consent of the Borrower otherwise required under this paragraph shall not be
required if an Event of Default under clause (h) or (i) of Article VII has
occurred and is continuing. Upon acceptance and recording pursuant to paragraph
(d) of this Section, from and after the effective date specified in each
Assignment and Acceptance, the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
52
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive, and the Borrower, the Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "PARTICIPANT") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); PROVIDED that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; PROVIDED that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (f) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.15 or 2.17 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.17 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.17(e) as
though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including without limitation (i) any such pledge or assignment to a
Federal Reserve Bank, and (ii) in the case of
53
any Lender that is a Fund, any pledge or assignment of all or any portion of
such Lender's rights under this Agreement to any holders of obligations owed, or
securities issued, by such Lender as security for such obligations or
securities, or to any trustee for, or any other representative of such holders
and this Section shall not apply to any such pledge or assignment of a security
interest; PROVIDED that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any
such assignee for such Lender as a party hereto.
SECTION 9.05. SURVIVAL. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof.
SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07. SEVERABILITY. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such
54
Lender to or for the credit or the account of the Borrower against any of and
all the obligations of the Borrower now or hereafter existing under this
Agreement held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement and although such obligations may be
unmatured. The rights of each Lender under this Section are in addition to other
rights and remedies (including other rights of setoff) which such Lender may
have.
SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of the Supreme Court of the
State of New York sitting in New York County and of the United States District
Court of the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Administrative Agent or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement against the
Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
55
SECTION 9.11. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. CONFIDENTIALITY. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Borrower
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section, (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower or (iii) to the National Association of Insurance
Commissioners or any other similar organization or nationally recognized rating
agency that requires access to information about a Lender's investment portfolio
in connection with rating issued with respect to such Lender. For the purposes
of this Section, "INFORMATION" means all information received from the Borrower
relating to the Borrower or its business, other than any such information that
is available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by the Borrower; PROVIDED that, in the case of
information received from the Borrower after the date hereof, such information
is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 9.13. INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "CHARGES"), shall exceed the
maximum lawful rate (the "MAXIMUM RATE") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
56
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.
▇▇▇▇▇▇▇ & ▇▇▇▇ FINANCIAL, INC.,
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
DEUTSCHE BANK AG,
NEW YORK BRANCH
By /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
BANK OF AMERICA, N.A.
By /s/ ▇▇▇▇ ▇. ▇'▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Managing Director
THE BANK OF NEW YORK
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
BNP PARIBAS
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
By /s/ ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
FLEET NATIONAL BANK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
STATE STREET BANK AND TRUST
COMPANY
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
UMB BANK, N.A.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Annex A
PRICING GRID
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ 5
------- ------- ------- ------- -------
S&P Rating: A- or BBB+ BBB BBB- Less than
better BBB-
▇▇▇▇▇'▇ Rating: A3 or ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Less than
better Baa3
ABR Loans' 0% 0% 0% 0% 0%
Applicable Margin
Eurodollar Loans' 0.270% 0.350% 0.425% 0.600% 0.825%
Applicable Margin
Facility Fee Rate 0.080% 0.100% 0.125% 0.150% 0.175%
For purposes of determining the Applicable Margins or the Facility Fee Rates,
(i) in the event of a "split rating" (I.E., if the ▇▇▇▇▇'▇ Rating applicable to
the Borrower at any time appears in the chart above in a different column from
that in which the S&P Rating then applicable to the Borrower appears), the
Applicable Margins and the Facility Fee Rates will be based on the column which
includes the higher rating (unless the higher rating is more than one rating
level higher than the lower rating, in which case the pricing shall be that
applicable to the rating level which is one rating level lower than the higher
rating level), (ii) if ▇▇▇▇▇'▇ or S&P shall not have in effect a rating (other
than because such rating agency shall no longer be in the business of rating
corporate debt obligations), then such rating agency will be deemed to have
established a rating one rating level lower than the rating of either ▇▇▇▇▇'▇ or
S&P, as the case may be, that remains in effect and (iii) the Applicable Margins
and the Facility Fee Rates shall be subject to adjustment (upwards or downwards,
as appropriate), effective as of the date on which S&P or ▇▇▇▇▇'▇ announces a
rating change which results in a change in the Applicable Margins and the
Facility Fee Rates.
SCHEDULE 2.01
COMMITMENTS
================================================================================
Lender Commitment
--------------------------------------------------------------------------------
The Chase Manhattan Bank $35,000,000
--------------------------------------------------------------------------------
Deutsche Bank AG - New York Branch $35,000,000
--------------------------------------------------------------------------------
Bank of America, N.A. $35,000,000
--------------------------------------------------------------------------------
Fleet National Bank $35,000,000
--------------------------------------------------------------------------------
The Bank of New York $25,000,000
--------------------------------------------------------------------------------
UMB Bank, N.A. $25,000,000
--------------------------------------------------------------------------------
BNP Paribas $15,000,000
--------------------------------------------------------------------------------
State Street Bank and Trust Company $15,000,000
--------------------------------------------------------------------------------
Total $220,000,000
================================================================================
SCHEDULE 3.06
DISCLOSED MATTERS
None
SCHEDULE 3.13
SUBSIDIARIES
Jurisdiction
of Incorporation % of Capital Stock
NAME or Formation Owned by Borrower(1)
---- ------------ --------------------
▇▇▇▇▇▇▇ & ▇▇▇▇ Financial Services, Inc. Missouri 100%
▇▇▇▇▇▇▇ & ▇▇▇▇ Development, Inc. Delaware 100%
▇▇▇▇▇▇▇ & ▇▇▇▇, Inc. Delaware 100%
▇▇▇▇▇▇▇ & ▇▇▇▇ Investment Kansas 100%
Management Company
▇▇▇▇▇▇▇ & ▇▇▇▇ Services Company Missouri 100%
▇▇▇▇▇▇▇ & ▇▇▇▇ Leasing, Inc. Missouri 100%
▇▇▇▇▇▇▇ & ▇▇▇▇ Distributors, Inc. Missouri 100%
W&R Insurance Agency, Inc. Missouri 100%
W&R Insurance Agency of Alabama, Inc. Alabama 100%
W&R Insurance Agency of Arkansas, Inc. Arkansas 100%
W&R Insurance Agency of Montana, Inc. Montana 100%
W&R Insurance Agency of Nevada, Inc. Nevada 100%
W&R Insurance Agency of Utah, Inc. Utah 100%
W&R Insurance Agency of Wyoming, Inc. Wyoming 100%
Unicon Agency, Inc. New York 100%
Unicon Insurance Agency of Massachusetts 100%
Massachusetts, Inc.
Fiduciary Trust Company of New Hampshire New Hampshire 100%
Austin, Calvert & ▇▇▇▇▇▇, Inc. Texas 100%
Encino Partners, L.P. Texas General Partner
Legend Group Holdings, LLC Delaware 100%
Legend Advisory Corporation New York 100%
Legend Equities Corporation Delaware 100%
-------------
(1) Owned directly or indirectly through one or more
wholly-owned subsidiaries.
Jurisdiction
of Incorporation % of Capital Stock
NAME or Formation Owned by Borrower(1)
---- ------------ --------------------
Advisory Services Corporation Nevada 100%
The Legend Group, Inc. Delaware 100%
LEC Insurance Agency, Inc. Texas 100%
SCHEDULE 6.02
EXISTING INDEBTEDNESS
None
SCHEDULE 6.03
EXISTING LIENS
None
SCHEDULE 6.08
EXISTING RESTRICTIONS
None
SCHEDULE 6.10
SALE/LEASEBACK PROPERTIES
1. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
EXHIBIT A
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of October 13,
2000 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among ▇▇▇▇▇▇▇ & ▇▇▇▇ Financial, Inc. (the "BORROWER"), the
Lenders party thereto and The Chase Manhattan Bank, as administrative agent for
the Lenders (in such capacity, the "ADMINISTRATIVE AGENT"). Unless otherwise
defined herein, terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "ASSIGNOR") and the
Assignee identified on Schedule l hereto (the "ASSIGNEE") agree as follows:
i. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby
irrevocably purchases and assumes from the Assignor without
recourse to the Assignor, as of the Effective Date (as defined
below), the interest described in Schedule 1 hereto (the
"ASSIGNED INTEREST") in and to the Assignor's rights and
obligations under the Credit Agreement with respect to those
credit facilities contained in the Credit Agreement as are set
forth on Schedule 1 hereto (individually, an "ASSIGNED FACILITY";
collectively, the "ASSIGNED FACILITIES"), in a principal amount
for each Assigned Facility as set forth on Schedule 1 hereto.
ii. The Assignor (a) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit
Agreement or with respect to the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant
thereto, other than that the Assignor has not created any adverse
claim upon the interest being assigned by it hereunder and that
such interest is free and clear of any such adverse claim; (b)
makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower, any of
its Subsidiaries or any other obligor or the performance or
observance by the Borrower, any of its Subsidiaries or any other
obligor of any of their respective obligations under the Credit
Agreement or any other instrument or document furnished pursuant
hereto or thereto; and (c) attaches any promissory notes held by
it evidencing the Assigned Facilities and (i) requests that the
Administrative Agent, upon request by the Assignee, exchange the
attached promissory notes for a new promissory note or notes
payable to the Assignee and (ii) if the Assignor has retained
any interest in the Assigned Facility, requests that the
Administrative Agent exchange the attached promissory notes
for a new promissory note or notes payable to
the Assignor, in each case in amounts which reflect the
assignment being made hereby (and after giving effect to any
other assignments which have become effective on the Effective
Date).
iii. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b)
confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements delivered
pursuant to subsection 3.04 thereof and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and
Acceptance; (c) agrees that it will, independently and without
reliance upon the Assignor, the Administrative Agent or any other
Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit
Agreement or any other instrument or document furnished pursuant
hereto or thereto; (d) appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement or any
other instrument or document furnished pursuant hereto or thereto
as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are incidental thereto; and
(e) agrees that it will be bound by the provisions of the Credit
Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are
required to be performed by it as a Lender including, if it is
organized under the laws of a jurisdiction outside the United
States, its obligation pursuant to subsection 2.17(e) of the
Credit Agreement.
iv. The effective date of this Assignment and Acceptance shall be the
Effective Date of Assignment described in Schedule 1 hereto (the
"EFFECTIVE DATE"). Following the execution of this Assignment and
Acceptance, it will be delivered to the Administrative Agent for
acceptance by it and recording by the Administrative Agent
pursuant to the Credit Agreement, effective as of the Effective
Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after
the date of such acceptance and recording by the Administrative
Agent).
v. Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect
of the Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignor for amounts
which have accrued to the Effective Date and to the Assignee for
amounts which have accrued subsequent to the Effective Date. The
Assignor and the Assignee shall make all appropriate adjustments
in payments by the Administrative Agent for periods prior to the
Effective Date or with respect to the making of this assignment
directly between themselves.
vi. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and shall be bound by the provisions thereof
and (b) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released
from its obligations under the Credit Agreement.
vii. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of New York
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
Schedule 1
to Assignment and Acceptance
Name of Assignor: ________________________
Name of Assignee: ________________________
Effective Date of Assignment: ________________________
Credit Principal
Facility Assigned Amount Assigned Commitment Percentage Assigned(1)
----------------- --------------- ---------------------------------
$ --------- --.----------%
[Name of Assignee] [Name of Assignor]
By: _______________________ By: _______________________
Title: Title
Accepted: Consented To:
THE CHASE MANHATTAN BANK, ▇▇▇▇▇▇▇ & ▇▇▇▇ FINANCIAL, INC.2
as Administrative Agent
By: _______________________ By: _______________________
Title: Title:
EXHIBIT B
▇▇▇▇▇▇▇ & ▇▇▇▇ FINANCIAL, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
October 13, 2000
The Chase Manhattan Bank, as Administrative Agent under
the Credit Agreement, as hereinafter defined (the "AGENT")
and
The Lenders listed on Schedule I hereto which are parties
to the Credit Agreement on the date hereof
Re: Credit Agreement dated as of October 13, 2000 (the "CREDIT AGREEMENT") among
▇▇▇▇▇▇▇ & ▇▇▇▇ Financial, Inc. (the "COMPANY"), the lending institutions
identified in the Credit Agreement (the "LENDERS") and the Agent
Ladies and Gentlemen:
I am General Counsel of ▇▇▇▇▇▇▇ & ▇▇▇▇ Financial, Inc. (the "COMPANY"). As
General Counsel, I have been requested to provide you my opinion as to certain
matters in connection with the preparation, execution and delivery of the Credit
Agreement and the promissory notes (the "NOTES") delivered to the Lenders
thereunder on the date hereof. Unless otherwise indicated, capitalized terms
used but not defined herein shall have the respective meanings set forth in the
Credit Agreement. This opinion is furnished to you pursuant to Section 4.01(b)
of the Credit Agreement.
In connection with this opinion, I have examined the Credit Agreement,
signed by the Company and by the Agent and certain of the Lenders. I also have
examined the originals, or duplicates or certified or conformed copies, of such
records, agreements, instruments and other documents and have made such other
investigations as I have deemed relevant and necessary in connection with the
opinions expressed herein. As to questions of fact material to this opinion, I
have relied upon certificates of public officials and of officers and
representatives of the Company. In addition, I have examined, and have relied as
to matters of fact upon, the representations made in the Credit Agreement.
In rendering the opinions set forth below, I have assumed the genuineness
of all signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to me as originals, the conformity to original documents
of all documents submitted to me as duplicates or certified or conformed copies,
and the authenticity of the originals of such latter documents.
Based upon and subject to the foregoing, and subject to the qualifications
and limitations set forth herein, I am of the opinion that:
1. The Company (a) has been duly incorporated and is validly existing
and in good standing as a corporation under the laws of the State of Delaware,
(b) has the corporate power and authority to execute and deliver the Credit
Agreement and the Notes and to borrow, and perform its obligations thereunder
and (c) has duly authorized, executed and delivered the Credit Agreement and the
Notes.
2. The execution and delivery by the Company of the Credit Agreement
and the Notes, its borrowings in accordance with the terms of the Credit
Agreement, and performance of its payment obligations thereunder (a) will not
result in any violation of (1) the Amended and Restated Certificate of
Incorporation or Amended and Restated Bylaws of the Company, (2) assuming that
proceeds of borrowings will be used in accordance with the terms of the Credit
Agreement, any Federal or Kansas statute or the Delaware General Corporation Law
or any rule or regulation issued pursuant to any Kansas or Federal statute or
the Delaware General Corporation Law or any order known to us issued by any
court or governmental agency or body and (b) will not breach or result in a
default under or result in the creation of any lien upon, or security interest
in, the Company's properties pursuant to the terms of any agreement or
instrument.
3. No consent, approval, authorization, order, filing, registration or
qualification of or with any Federal or Kansas governmental agency or body or
any Delaware governmental agency or body acting pursuant to the Delaware General
Corporation Law is required for the execution and delivery by the Company of the
Credit Agreement and the Notes, the borrowings by the Company in accordance with
the terms of the Credit Agreement or the performance by the Company of its
payment obligations under the Credit Agreement and the Notes.
4. Assuming that the Credit Agreement is a valid and legally binding
obligation of each of the Lenders parties thereto, the Credit Agreement and the
Notes constitutes the valid and legally binding obligation of the Company,
enforceable against the Company in accordance with their respective terms.
5. To our knowledge there is no action, suit or proceeding before or
by any court, arbitrator or governmental agency, body or official, now pending,
to which the Company is a party or to which the business, assets or property of
the Company is subject and no such action, suit or proceeding is threatened to
which the Company or the business, assets or property of the Company would be
subject that in either case questions the validity of the Credit Agreement.
My opinion in paragraph 4 above is subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, (ii)
general equitable principles (whether considered in a proceeding in equity or at
law) and (iii) an implied covenant of good faith and fair dealing.
My opinion is limited to applicable laws of the United States of
America and the applicable laws of the states thereof, as appropriate, and is
based on the facts in existence and the laws in effect on the date hereof. In
rendering this opinion, note that I am a member of the bar of
the States of Kansas and Missouri only. My opinion with respect to the law of
the State of Delaware is limited to the Delaware General Corporation Law.
This opinion letter is being delivered to you and your successors and
assigns solely for your use in connection with the Credit Agreement and is not
to be relied on, quoted or used, in whole or in part, by any other party or for
any other purpose or transaction except with my prior written consent. The
opinions contained herein are as of the date of this letter, and no obligation
or responsibility is undertaken to update or supplement this opinion in response
to or to make you aware of any subsequent changes in events or information
affecting opinions contained herein.
Very truly yours,
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
General Counsel
SCHEDULE I
The Chase Manhattan Bank
Deutsche Bank AG - New York Branch
Bank of America, N.A.
The Bank of New York
Fleet National Bank
BNP Paribas
State Street Bank and Trust Company
UMB Bank, ▇.▇.
▇▇▇▇▇▇▇ & ▇▇▇▇ FINANCIAL, INC.
EXHIBIT C-1
W A D D E L L & R E E D I N V E S T M E N T
M A N A G E M E N T C O M P A N Y
2000 ACTUAL ($000)
MANAGEMENT FEES JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC
-------------------------------- --------------------------------------------------------------------------------------
--------------------------------
W&R ADVISORS FUNDS
--------------------------------
Income $4,066 3,743 4,198 4,141 4,249 4,197 4,351 4,381
Con't Income 349 320 351 338 341 339 348 348
Retirement Shares 705 676 780 742 768 801 836 851
Gold & Government 0 0 0 0 0 0 0 0
Small Cap 84 121 177 183 210 230 252 257
Asset Strategy 33 33 39 40 44 45 49 53
--------------------------------------------------------------------------------------
Balanced Income Funds $5,237 $4,893 $5,545 $5,444 $5,612 $5,612 $5,836 $5,890
Accumulative 1,277 1,184 1,374 1,303 1,349 1,313 1,334 1,386
Science & Technology 2,665 2,779 3,418 2,658 2,507 2,580 2,719 2,750
Int'l Growth 1,283 1,346 1,481 1,249 1,221 1,248 1,268 1,218
Vanguard 1,420 1,421 1,680 1,561 1,579 1,620 1,689 1,683
New Concepts 1,296 1,371 1,571 1,194 1,181 1,251 1,351 1,331
--------------------------------------------------------------------------------------
Equity Funds $7,941 $8,101 $9,524 $7,965 $7,837 $8,012 $8,361 $8,368
Bond 224 208 220 212 214 209 218 218
Municipal Bond 347 321 344 328 324 320 332 334
High Income 473 434 454 415 420 407 421 414
High Income II 190 174 181 168 169 162 166 164
Gov't Securities 53 49 51 49 49 48 50 50
Municipal High Income 203 185 196 187 188 184 189 188
Bond Funds $1,490 $1,371 $1,446 $1,359 $1,364 $1,330 $1,376 $1,368
TOTAL LONG-TERM FUNDS $14,668 $14,365 $16,515 $14,768 $14,813 $14,954 $15,573 $15,626
Cash Management 268 237 254 273 283 268 271 268
--------------------------------------------------------------------------------------
TOTAL W&R ADVISORS FUNDS $14,936 $14,602 $16,769 $15,041 $15,096 $15,222 $15,844 $15,894
--------------------------------
W&R FUNDS
--------------------------------
Total Return 331 301 336 329 337 333 343 346
Growth 534 550 648 503 501 513 525 495
Municipal Bond 14 13 13 12 12 11 12 12
Limited-Term Bond 0 0 0 0 0 0 0 0
Int'l Growth 143 162 187 151 144 144 147 143
Asset Strategy 27 25 30 30 32 31 33 33
Science & Technology 165 184 236 154 141 151 161 159
High Income 13 0 0 0 0 0 0 0
Large Cap Growth 0 0 0 0 0 0 0 0
Mid Cap Growth 0 0 0 0 0 0 0 0
Tax Managed Equity 0 0 0 0 0 0 0 0
Money Market 0 0 0 0 0 0 0 0
-------------------------------------------------------------------------------------
TOTAL W&R FUNDS $1,227 $1,235 $1,450 $1,179 $1,167 $1,183 $1,221 $1,188
--------------------------------
TMK/UNITED FUNDS
--------------------------------
Income 561 518 586 584 607 603 629 640
Growth 681 648 759 737 752 756 791 809
Bond 49 45 48 47 47 47 49 49
High Income 63 59 62 57 58 56 58 58
Money Market 22 20 22 21 19 18 18 18
International 211 228 256 218 213 215 222 216
Small Cap 231 242 294 240 247 256 268 259
Balanced 69 66 73 72 75 76 81 83
Limited Term 0 0 0 0 0 0 0 0
Asset Strategy 0 0 10 16 18 18 20 22
Science & Technology 187 212 272 189 183 201 218 220
-------------------------------------------------------------------------------------
TOTAL TMK/UNITED $2,074 $2,038 $2,382 $2,181 $2,219 $2,246 $2,354 $2,374
GRAND TOTAL MGMT. FEES $18,237 $17,875 $20,601 $18,401 $18,482 $18,651 $19,419 $19,456
DAILY AVERAGE 588.3 616.4 664.5 613.4 596.2 621.7 626.4 627.6
%INC
(DEC) TOTAL
% OF VARIANCE 1999 YEAR
MANAGEMENT FEES Y-T-D TOTAL FROM L-Y ACTUAL 1999
-------------------------------- ----------- --------- ---------- ---------- ---------
--------------------------------
W&R ADVISORS FUNDS
--------------------------------
Income
Con't Income $33,326 22.1% $4,351 15.0% $44,404
Retirement Shares 2,734 1.8 448 19.6 3,650
Gold & Government 6,159 4.1 2,841 85.6 5,675
Small Cap 0 0.0 -38 -100.0 38
Asset Strategy 1,514 1.0 1,514 82
336 0.2 154 84.6 301
Balanced Income Funds ----------- --------- ---------- ---------- ---------
$44,069 29.2 9,270 26.6 $54,150
Accumulative
Science & Technology 10,520 7.0 3,080 41.4 11,969
Int'l Growth 22,076 14.6 13,571 159.6 16,104
Vanguard 10,314 6.8 4,250 70.1 10,206
New Concepts 12,653 8.4 4,114 48.2 13,327
10,546 7.0 5,208 97.6 9,200
Equity Funds ----------- --------- ---------- ---------- ---------
$66,109 43.7 30,223 84.2 $60,806
Bond
Municipal Bond 1,723 1.1 110 6.8 2,526
High Income 2,650 1.8 -130 -4.7 4,249
High Income II 3,438 2.3 -255 -6.9 5,598
Gov't Securities 1,374 0.9 -126 -8.4 2,275
Municipal High Income 399 0.3 17 4.5 601
Bond Funds 1,520 1.0 -237 -13.5 2,626
$11,104 7.3 -621 -5.3 $17,875
TOTAL LONG-TERM FUNDS
$121,282 80.3 38,872 47.2 $132,831
Cash Management
2,122 1.4 371 21.2 $2,739
TOTAL W&R ADVISORS FUNDS ----------- --------- ---------- ---------- ---------
$123,404 81.7% 39,243 46.6% $135,570
--------------------------------
W&R FUNDS
--------------------------------
Total Return
Growth 2,656 1.8 202 8.2 3,732
Municipal Bond 4,269 2.8 1,814 73.9 4,092
Limited-Term Bond 99 0.1 -57 -36.5 221
Int'l Growth 0 0.0 -59 -100.0 59
Asset Strategy 1,221 0.8 653 115.0 978
Science & Technology 241 0.2 71 41.8 266
High Income 1,351 0.9 1,080 398.5 683
Large Cap Growth 13 0.0 -97 -88.2 164
Mid Cap Growth 0 0.0 0 0
Tax Managed Equity 0 0.0 0 0
Money Market 0 0.0 0 0
0 0.0 0 0
TOTAL W&R FUNDS ----------- --------- ---------- ---------- ---------
$9,850 6.5% $3,607 57.8% $10,195
--------------------------------
TMK/UNITED FUNDS
--------------------------------
Income
Growth 4,728 3.1 831 21.3 5,983
Bond 5,933 3.9 1,846 45.2 6,470
High Income 381 0.3 -13 -3.3 592
Money Market 471 0.3 -57 -10.8 779
International 158 0.1 -18 -10.2 256
Small Cap 1,779 1.2 817 84.9 1,608
Balanced 2,037 1.3 951 87.6 1,771
Limited Term 595 0.4 187 45.8 664
Asset Strategy 0 0.0 -14 -100.0 14
Science & Technology 104 0.1 45 76.3 59
1,682 1.1 1,383 462.5 738
TOTAL TMK/UNITED ----------- --------- ---------- ---------- ---------
$17,868 11.8% $5,958 50.0% $18,934
GRAND TOTAL MGMT. FEES
$151,122 100.0% $48,808 47.7% $164,699
DAILY AVERAGE
619.4 198.3 47.1% 451.2
EXHIBIT C-1
▇▇▇▇▇▇▇ AND ▇▇▇▇ AUGUST 2000
CHANGE IN MUTUAL FUND ASSETS UNDER MANAGEMENT (MILLIONS)
--------------------------------------------------------------------------------
NET ASSETS SHAREHOLDER TRANSACTIONS
---------------------------------------------------------------
AT 7-31-00 SALES REDEMPT. NET EXCH. DIV. REINV. TOTAL
--------------------------------------------------------------------------------
Income 8,760.1 42.9 -53.3 20.1 0.0 9.7
Cont Income 571.4 2.9 -3.7 -2.4 0.0 -3.2
Retire Shares 1,396.4 18.2 -7.3 3.7 0.0 14.6
Gold & Gov't 0.0 0.0 0.0 0.0 0.0 0.0
Asset Strategy 83.8 5.1 -0.4 2.3 0.0 7.0
Accumulative 2,342.5 8.4 -13.1 -0.7 0.0 -5.4
Science & Technology 3,801.3 21.2 -17.1 50.3 0.0 54.4
International Growth 1,673.0 10.6 -7.8 20.4 0.0 23.2
Vanguard 2,951.2 28.9 -14.3 0.9 0.0 15.5
New Concepts 1,789.1 15.9 -8.2 17.9 0.0 25.6
Small Cap 341.8 24.7 -1.2 5.4 0.0 28.9
Tax-Managed Equity 19.9 3.0 0.0 0.9 0.0 3.9
Bond 498.4 3.8 -3.7 -13.5 2.2 -11.2
Municipal Bond 759.8 2.7 -8.7 -11.2 2.6 -14.6
High Income 796.6 3.4 -8.4 -18.9 5.1 -18.8
High Income II 309.9 1.1 -2.9 -1.7 2.1 -1.4
Government Securities 117.5 1.2 -1.7 -0.2 0.5 -0.2
Municipal High Income 422.6 2.4 -4.5 -1.9 1.7 -2.3
--------------------------------------------------------------------------------
ADVISORS FUNDS TOTAL 26,635.3 196.4 -156.3 71.4 14.2 125.7
Total Return 560.8 2.1 -5.0 0.0 0.0 -2.9
Small Cap Growth 685.4 2.7 -5.4 -2.4 0.0 -5.1
Mid Cap Growth 4.6 1.0 0.0 1.5 0.0 2.5
Large Cap Growth 5.6 2.4 0.0 4.2 0.0 6.6
Tax-Managed Equity 3.1 0.1 0.0 0.0 0.0 0.1
Municipal Bond 26.3 0.0 -0.5 -0.1 0.1 -0.5
Limited-Term Bond 18.9 0.1 -0.2 0.0 0.1 0.0
Int'l Growth 196.1 1.5 -1.5 -1.3 0.0 -1.3
Asset Strategy 54.4 0.3 -0.2 0.6 0.0 0.7
Science & Technology 213.3 1.7 -1.6 -1.5 0.0 -1.4
High Income 20.8 0.2 -0.3 -0.1 0.1 -0.1
--------------------------------------------------------------------------------
W & R FUNDS TOTAL 1,789.3 12.1 -14.7 0.9 0.3 -1.4
--------------------------------------------------------------------------------
ADVISORS & W&R FUNDS TOTAL 28,424.6 208.5 -171.0 72.3 14.5 124.3
Asset Strategy 34.9 4.2 -0.5 0.0 3.7
Money Mkt 51.9 18.0 -18.7 0.3 -0.4
Bond 109.3 1.8 -1.6 0.0 0.2
High Inc 109.3 1.2 -1.2 0.0 0.0
Growth 1,323.0 16.5 -10.4 0.0 6.1
Income 1,037.7 14.9 -8.0 0.0 6.9
International Port 297.1 4.7 -2.0 0.0 2.7
Small Cap Port 355.4 7.4 -3.1 0.0 4.3
Balanced Port 134.4 4.5 -1.4 0.0 3.1
Ltd-Term Bond Port 5.8 0.2 -0.1 0.0 0.1
Science & Technology 293.1 8.9 -4.2 0.0 4.7
--------------------------------------------------------------------------------
TARGET/UTD FUNDS TOTAL 3,751.9 82.3 -51.2 0.0 0.3 31.4
--------------------------------------------------------------------------------
FUNDS TOTAL W/O CASH MANAGEMENT 32,176.5 290.8 -222.2 72.3 14.8 155.7
CASH MANAGEMENT 883.4 65.8 -84.9 -72.6 3.8 -87.9
--------------------------------------------------------------------------------
ALL FUNDS 33,059.9 356.6 -307.1 -0.3 18.6 67.8
AUGUST 2000 MONTH TO DATE
---------------------------------------------------
NET INVEST DIVIDENDS VALUATION NET ASSETS
INCOME PAID CHANGE AT 8-31-00
---------------------------------------------------
Income 4.7 0.0 472.0 9,246.5
Cont Income 1.3 0.0 21.0 590.5
Retire Shares 1.7 0.0 111.1 1,523.8
Gold & Gov't 0.0 0.0 0.0 0.0
Asset Strategy 0.2 0.0 2.5 93.5
Accumulative 2.9 0.0 185.7 2,525.7
Science & Technology 2.3 0.0 332.1 4,190.1
International Growth 1.0 0.0 10.5 1,707.7
Vanguard -1.3 0.0 208.5 3,173.9
New Concepts -1.2 0.0 193.4 2,006.9
Small Cap 0.2 0.0 11.6 382.5
Tax-Managed Equity 0.0 0.0 0.5 24.3
Bond 2.5 -2.6 2.8 489.9
Municipal Bond 3.2 -3.3 8.9 754.0
High Income 5.8 -5.9 -0.7 777.0
High Income II 2.2 -2.2 -0.8 307.7
Government Securities 0.6 -0.6 1.3 118.6
Municipal High Income 2.1 -2.1 3.8 424.1
---------------------------------------------------
ADVISORS FUNDS TOTAL 28.2 -16.7 1,564.2 28,336.7
Total Return -0.2 0.0 30.6 588.3
Small Cap Growth -0.3 0.0 23.0 703.0
Mid Cap Growth 0.0 0.0 1.1 8.2
Large Cap Growth 0.0 0.0 0.8 13.0
Tax-Managed Equity 0.0 0.0 0.2 3.4
Municipal Bond 0.1 -0.1 0.4 26.2
Limited-Term Bond 0.1 -0.1 0.1 19.0
Int'l Growth -0.1 0.0 6.5 201.2
Asset Strategy 0.0 0.0 1.8 56.9
Science & Technology 0.0 0.0 18.9 230.8
High Income 0.1 -0.1 -0.1 20.6
---------------------------------------------------
W & R FUNDS TOTAL -0.3 -0.3 83.3 1,870.6
---------------------------------------------------
ADVISORS & W&R FUNDS TOTAL 27.9 -17.0 1,647.5 30,207.3
Asset Strategy 0.1 0.0 1.1 39.8
Money Mkt 0.3 -0.3 0.1 51.6
Bond 0.6 0.0 0.8 110.9
High Inc 1.0 0.0 0.4 110.7
Growth 0.4 0.0 102.2 1,431.7
Income 0.7 0.0 54.3 1,099.6
International Port 0.2 0.0 0.2 300.2
Small Cap Port 0.3 0.0 11.3 371.3
Balanced Port 0.4 0.0 4.3 142.2
Ltd-Term Bond Port 0.0 0.0 0.0 5.9
Science & Technology 0.3 0.0 24.6 322.7
---------------------------------------------------
TARGET/UTD FUNDS TOTAL 4.3 -0.3 199.3 3,986.6
---------------------------------------------------
FUNDS TOTAL W/O CASH MANAGEMENT 32.2 -17.3 1,846.8 34,193.9
CASH MANAGEMENT 4.0 -4.0 0.0 795.5
---------------------------------------------------
ALL FUNDS 36.2 -21.3 1,846.8 34,989.4
Note: For the Target/UTD Funds, sales include exchanges in and redemptions
include exchanges out.
EXHIBIT C-1 CONT.
▇▇▇▇▇▇▇ AND ▇▇▇▇ AUGUST 2000
CHANGE IN MUTUAL FUND ASSETS UNDER MANAGEMENT (MILLIONS)
--------------------------------------------------------------------------------
SHAREHOLDER TRANSACTIONS
NET ASSETS ---------------------------------------------------------------
▇▇ ▇▇-▇▇-▇▇ SALES REDEMPT. NET. EXCH. DIV. REINV. TOTAL
--------------------------------------------------------------------------------
Income 8,399.1 313.7 -460.7 -250.1 6.8 -390.3
Cont Income 600.0 16.6 -31.1 -29.7 5.6 -38.6
Retire Shares 1,199.9 125.0 -48.9 41.8 2.2 120.1
Gold & Gov't 0.0 0.0 0.0 0 0 0.0
Asset Strategy 56.7 18.8 -2.6 10.1 0 26.3
Accumulative 2,254.5 65.4 -94.3 -22.9 2.5 -49.3
Science & Technology 3,795.5 267.4 -135.4 139.8 0.0 271.8
International Growth 1,885.6 118.0 -60.1 12.6 0.0 70.5
Vanguard 2,568.1 190.7 -102.4 -4.4 0.0 83.9
New Concepts 1,769.0 181.6 -56.3 69.9 0.0 195.2
Small Cap 97.7 153.4 -12.6 118.4 0.0 259.2
Tax-Managed Equity 0.0 17.8 0.0 5.7 0.0 23.5
Bond 505.5 24.9 -33.6 -28.4 17.4 -19.7
Municipal Bond 805.4 11.9 -67.5 -43.9 21.3 -78.2
High Income 921.5 24.7 -67.4 -82.8 42.0 -83.5
High Income II 364.3 8.3 -26.1 -29.0 17.2 -29.6
Government Securities 127.6 8.1 -12.7 -10.5 4.1 -11.0
Municipal High Income 465.3 12.2 -36.3 -31.0 13.4 -41.7
--------------------------------------------------------------------------------
ADVISORS FUNDS TOTAL 25,815.7 1,558.5 -1,248.0 -134.4 132.5 308.6
Total Return 563.5 14.2 -44.4 -22.7 0.0 -52.9
Small Cap Growth 743.7 34.8 -44.6 -9.9 0.0 -19.7
Mid Cap Growth 0.0 4.6 0.0 2.4 0.0 7.0
Large Cap Growth 0.0 6.2 0.0 5.4 0.0 11.6
Tax-Managed Equity 0.0 3.2 0.0 0 0 3.2
Municipal ▇▇▇▇ ▇▇.▇ -▇.▇ -▇.▇ -▇.▇ 0.7 -7.9
Limited-Term Bond 23.0 0.2 -2.1 -2.7 0.7 -3.9
Int'l Growth 205.5 24.9 -11.4 1.9 0.0 15.4
Asset Strategy 45.1 3.2 -2.7 3.5 0.0 4.0
Science & Technology 226.8 41.1 -11.0 7.8 0.0 37.9
High Income 25.9 0.4 -2.7 -2.3 1.1 -3.5
--------------------------------------------------------------------------------
W & R FUNDS TOTAL 1,866.8 132.7 -123.2 -20.8 2.5 -8.8
--------------------------------------------------------------------------------
ADVISORS & W&R FUNDS TOTAL 27,682.5 1,691.2 -1,371.2 -155.2 135.0 299.8
Asset Strategy 21.6 17.7 -3.7 0.0 14.0
Money Mkt 64.4 229.9 -244.9 2.2 -12.8
Bond 110.5 10.2 -16.0 0.0 -5.8
High Inc 120.7 10.6 -17.6 0.0 -7.0
Growth 1,162.7 132.1 -81.4 0.0 50.7
Income 940.5 104.7 -85.6 0.0 19.1
International Port 300.1 57.7 -18.0 0.0 39.7
Small Cap Port 318.0 77.1 -21.7 0.0 55.4
Balanced Port 117.2 28.0 -12.2 0.0 15.8
Ltd-Term Bond Port 6.0 0.9 -1.2 0.0 -0.3
Science & Technology 252.7 127.7 -33.2 0.0 94.5
--------------------------------------------------------------------------------
TARGET/UTD FUNDS TOTAL 3,414.4 796.6 -535.5 0.0 2.2 263.3
--------------------------------------------------------------------------------
FUNDS TOTAL W/O CASH MANAGEMENT 31,096.9 2,487.8 -1,906.7 -155.2 137.2 563.1
CASH MANAGEMENT 812.1 594.3 -789.8 152.1 26.8 -16.6
--------------------------------------------------------------------------------
ALL FUNDS 31,909.0 3,082.1 -2,696.5 -3.1 164.0 546.5
AUGUST 2000 YEAR TO DATE
---------------------------------------------------
NET INVEST DIVIDENDS VALUATION NET ASSETS
INCOME PAID CHANGE AT 8-31-00
---------------------------------------------------
Income 7.2 -7.2 1,237.7 9,246.5
Cont Income 8.0 -5.8 26.9 590.5
Retire Shares 5.9 -2.3 200.2 1,523.8
Gold & Gov't 0.0 0.0 0.0 0.0
Asset Strategy 0.4 0.0 10.1 93.5
Accumulative 9.4 -2.7 313.8 2,525.7
Science & Technology -5.4 0.0 128.2 4,190.1
International Growth 1.1 0.0 -249.5 1,707.7
Vanguard -9.1 0.0 531.0 3,173.9
New Concepts -8.5 0.0 51.2 2,006.9
Small Cap 1.6 0.0 24.0 382.5
Tax-Managed Equity 0.0 0.0 0.8 24.3
Bond 19.7 -19.5 3.9 489.9
Municipal Bond 26.8 -26.8 26.8 754.0
High Income 49.3 -49.3 -61.0 777.0
High Income II 19.2 -19.2 -27.0 307.7
Government Securities 4.8 -4.8 2.0 118.6
Municipal High Income 17.8 -17.6 0.3 424.1
---------------------------------------------------
ADVISORS FUNDS TOTAL 148.2 -155.2 2,219.4 28,336.7
Total Return -3.4 0.0 81.1 588.3
Small Cap Growth -3.7 0.0 -17.3 703.0
Mid Cap Growth 0.0 0.0 1.2 8.2
Large Cap Growth 0.0 0.0 1.4 13.0
Tax-Managed Equity 0.0 0.0 0.2 3.4
Municipal Bond 0.8 -0.8 0.8 26.2
Limited-Term Bond 0.8 -0.8 -0.1 19.0
Int'l Growth -2.1 0.0 -17.6 201.2
Asset Strategy 0.0 0.0 7.8 56.9
Science & Technology -1.7 0.0 -32.2 230.8
High Income 1.5 -1.5 -1.8 20.6
---------------------------------------------------
W & R FUNDS TOTAL -7.8 -3.1 23.5 1,870.6
---------------------------------------------------
ADVISORS & W&R FUNDS TOTAL 140.4 -158.3 2,242.9 30,207.3
Asset Strategy 0.2 0.0 4.0 39.8
Money Mkt 2.3 -2.4 0.1 51.6
Bond 4.5 0.0 1.7 110.9
High Inc 7.5 0.0 -10.5 110.7
Growth 0.3 0.0 218.0 1,431.7
Income 2.2 0.0 137.8 1,099.6
International Port 0.1 0.0 -39.7 300.2
Small Cap Port 1.5 0.0 -3.6 371.3
Balanced Port 2.2 0.0 7.0 142.2
Ltd-Term Bond Port 0.1 0.0 0.1 5.9
Science & Technology 0.6 0.0 -25.1 322.7
---------------------------------------------------
TARGET/UTD FUNDS TOTAL 21.5 -2.4 289.8 3,986.6
---------------------------------------------------
FUNDS TOTAL W/O CASH MANAGEMENT 161.9 -160.7 2,532.7 34,193.9
CASH MANAGEMENT 29.3 -29.3 0.0 795.5
---------------------------------------------------
ALL FUNDS 191.2 -190.0 2,532.7 34,989.4
Note: For the Target/UTD Funds, sales include exchanges in and redemptions
include exchanges out.
EXHIBIT C-2
W&R GROUP OF COMPANIES
TOTAL REVENUES
For the period indicated in each column heading,
amounts in thousands except per share amounts.
---------------------------------------------------------------------------------------------------------------------------------
Aug-99 Sep-99 Oct-99 Nov-99 Dec-99 Jan-00 Feb-00 Mar-00
-----------------------------------------------------------------------------------------
REVENUES:
Investment management fees 15,462 16,009 16,989 17,362 20,148 20,230 20,011 23,565
Underwriting & distribution fees 10,425 9,671 9,511 10,112 12,639 13,397 14,780 17,304
Shareholder service fees 3,490 3,689 3,480 3,535 3,795 3,691 3,662 3,941
Investment & other revenue 690 566 751 739 1,150 794 221 3,147
---------------------------------------------------------------------------------------------------------------------------------
TOTAL REVENUE 30,067 29,935 30,731 31,748 37,732 38,112 38,674 47,957
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
QTD QTD Variance Variance QTD QTD Variance Variance
Aug-00 May-00 Dollars Percent Aug-00 Aug-99 Dollars Percent
-----------------------------------------------------------------------------------------
REVENUES:
Investment management fees 43,473 41,330 2,143 5.2% 43,473 31,081 12,391 39.9%
Underwriting & distribution fees 33,584 38,106 -4,522 -11.9% 33,584 20,796 12,788 61.5%
Shareholder service fees 8,943 8,641 302 3.5% 8,943 6,932 2,011 29.0%
Investment & other revenue 1,261 1,278 -17 -1.3% 1,261 1,523 -262 -17.2%
---------------------------------------------------------------------------------------------------------------------------------
TOTAL REVENUE 87,261 89,355 -2,094 -4.5% 87,261 60,332 26,928 113.2%
---------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------
Apr-00 May-00 Jun-00 Jul-00 Aug-00
------------------------------------------------------
REVENUES:
Investment management fees 20,647 20,683 20,971 21,756 21,717
Underwriting & distribution fees 20,622 17,484 17,785 15,902 17,681
Shareholder service fees 4,346 4,295 4,963 4,322 4,622
Investment & other revenue 528 750 701 583 678
----------------------------------------------------------------------------------------------
TOTAL REVENUE 46,143 43,212 44,420 42,563 44,698
----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
YTD YTD Variance Variance
Aug-00 Aug-99 Dollars Percent
-------------------------------------------
REVENUES:
Investment management fees 169,579 108,105 61,474 56.9%
Underwriting & distribution fees 134,956 84,385 50,571 59.9%
Shareholder service fees 33,841 27,027 6,815 25.2%
Investment & other revenue 7,403 6,995 408 5.8%
-----------------------------------------------------------------------------------
TOTAL REVENUE 345,779 226,512 119,268 147.8%
-----------------------------------------------------------------------------------
EXHIBIT D
[FORM OF COMPETITIVE BID]
The Chase Manhattan Bank,
as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
----- ---, ------
Ladies and Gentlemen:
Pursuant to subsection 2.06(b) of the Credit Agreement dated as of
October 13, 2000 (the "CREDIT AGREEMENT"), among ▇▇▇▇▇▇▇ & ▇▇▇▇ Financial, Inc.
(the "COMPANY"), the Lenders party thereto and The Chase Manhattan Bank, as
Administrative Agent, the undersigned hereby makes a Competitive Bid in response
to the Competitive Bid Request made by the Company on [Date], and in that
connection sets forth below the terms on which such Competitive Bid is made:
(A) Principal Amount (3) __________________
(B) Competitive Bid Rate (4) __________________
(C) Interest Period and last day thereof __________________
The undersigned hereby confirms that it is prepared, subject to the
conditions set forth in the Credit Agreement, to extend credit to the Company
upon acceptance by the Company of this bid in accordance with subsection 2.06(d)
of the Credit Agreement.
Terms defined in the Credit Agreement are used in this bid with their
defined meanings.
Very truly yours,
[NAME OF BANK],
By: _________________
Name:
Title:
------------------
(3) Not less than $5,000,000 or greater than the requested Competitive
Borrowing and in integral multiples of $1,000,000. Multiple bids will be
accepted by the Administrative Agent.
(4) LIBO Rate + or - [ ]%, in the case of Eurodollar Loans, or [ ]%, in the
case of Fixed Rate Loans, in either case such percentage rate to be
expressed to no more than four decimal places.