EXHIBIT 10.5(a)
---------------
U.S. $50,000,000
AMENDED AND RESTATED
REVOLVING LOAN AND CREDIT AGREEMENT
dated as of June 2, 1999
among
CHICAGO TITLE CORPORATION
as the Borrower,
CHICAGO TITLE AND TRUST COMPANY
as the Company,
and
CERTAIN COMMERCIAL LENDING INSTITUTIONS
as the Lenders,
and
LASALLE BANK N.A.
as Administrative Agent for the Lenders.
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS
SECTION 1.1 Defined Terms
SECTION 1.2 Use of Defined Terms
SECTION 1.3 Cross-References
SECTION 1.4 Accounting Terms; Financial Statements
SECTION 1.5 1031 Exchange Activities
SECTION 2. COMMITMENT OF THE LENDERS; CONDITIONS
SECTION 2.1 Commitment
SECTION 2.2 Conditions to the Loans
SECTION 3. GENERAL PROVISIONS APPLICABLE TO ALL LOANS
SECTION 3.1 Applicable Interest Rates.
SECTION 3.2 Minimum and Maximum Borrowing Amounts
SECTION 3.3 Borrowing Procedures
SECTION 3.4 Interest Periods
SECTION 3.5 Renewals and Conversions
SECTION 3.6 Prepayments
SECTION 3.7 Default Rate
SECTION 3.8 Notes
SECTION 3.9 Commitment Terminations
SECTION 3.10 Funding Indemnity
SECTION 3.11 Change in Circumstances, Etc.
SECTION 3.12 Place and Application of Payments
SECTION 4. FEES
SECTION 4.1 Fees
SECTION 4.2 Administrative Agent's Fee
SECTION 4.3 Facility Fee
SECTION 5. TAXES AND OTHER MATTERS
SECTION 5.1 Taxes
SECTION 5.2 Making of Loans by Administrative Agent.
SECTION 5.2.1 Assumptions by Administrative Agent
SECTION 5.2.2. Delegation of Authority to Administrative Agent24
SECTION 5.3 Sharing of Payment
SECTION 5.4 Setoff
SECTION 5.5 Use of Proceeds
SECTION 6. WARRANTIES
SECTION 6.1 Organization, etc
SECTION 6.2 Authorization; No Conflict
SECTION 6.3 Validity and Binding Nature
SECTION 6.4 Financial Statements
SECTION 6.5 Litigation and Contingent Liabilities
SECTION 6.6 Liens
SECTION 6.7 Subsidiaries
SECTION 6.8 Investment Company Act
SECTION 6.9 Public Utility Holding Company Act
SECTION 6.11 Ownership of Properties
SECTION 6.12 Taxes
SECTION 6.13 Pension and Welfare Plans
SECTION 6.14 Accuracy of Information
SECTION 6.15 Year 2000
SECTION 6.16 SEC Documents
SECTION 7. COMPANY'S COVENANTS
SECTION 7.1 Reports, Certificates and Other Information
SECTION 7.1.1 Company Audit Report
SECTION 7.1.2 Annual Company Unaudited Statements
SECTION 7.1.3 Company Interim Reports
SECTION 7.1.4 Certificates
SECTION 7.1.5 Annual Statement Blanks
SECTION 7.1.6 Quarterly Statement Blanks
SECTION 7.1.7 Notice of Default and Litigation
SECTION 7.1.8 SEC Reports
SECTION 7.1.9 Subsidiaries
SECTION 7.1.10 ERISA
SECTION 7.1.10 Additional Information
SECTION 7.2 Books, Records and Inspections
SECTION 7.3 Insurance
SECTION 7.4 Taxes
SECTION 7.5 Consolidated Net Worth
SECTION 7.6 Statutory Surplus
SECTION 7.7 Interest Expense Coverage Ratio
SECTION 7.8 Liquidity
SECTION 7.9 Loss Reserve Ratio
SECTION 7.10 Restricted Payments
SECTION 7.11 Indebtedness
SECTION 7.12 Liens
SECTION 7.13 Mergers, Consolidations, Purchases
SECTION 7.14 Asset Dispositions
SECTION 7.15 Leverage Ratio
SECTION 7.16 Existing Business
SECTION 7.17 Other Agreements
SECTION 8. CONDITIONS OF LENDING.
SECTION 8.1 Documents
SECTION 8.1.1 Notes
SECTION 8.1.2 Corporate Documents
SECTION 8.1.3 Incumbency and Signatures
SECTION 8.1.4 Confirmatory Certificate
SECTION 8.1.5 Good Standing.
SECTION 8.1.6 Instructions
SECTION 8.1.7 Other
SECTION 8.2 Further Conditions
SECTION 9. EVENTS OF DEFAULT AND THEIR EFFECT
SECTION 9.1 Events of Default
SECTION 9.1.1 Non-Payment of Notes, etc.
SECTION 9.1.2 Non-Payment of Other Indebtedness
SECTION 9.1.3 Bankruptcy, Insolvency, etc.
SECTION 9.1.4 Non-Compliance with this Agreement
SECTION 9.1.5 Warranties
SECTION 9.1.6 Change of Control
SECTION 9.1.7 Judgments
SECTION 9.1.8 Pension Plans
SECTION 9.2 Effect of Event of Default
SECTION 10. THE ADMINISTRATIVE AGENT
SECTION 10.1 Actions
SECTION 10.2 Exculpation
SECTION 10.3 Successor
SECTION 10.4 Loans by LaSalle
SECTION 10.5 Credit Decisions
SECTION 10.6 Copies, etc
SECTION 11. MISCELLANEOUS PROVISIONS
SECTION 11.1 Waivers, Amendments, etc
SECTION 11.2 Notices
SECTION 11.3 Costs, Expenses and Taxes
SECTION 11.4 Indemnification
SECTION 11.5 Survival
SECTION 11.6 Severability
SECTION 11.7 Captions
SECTION 11.8 Execution in Counterparts, Effectiveness, etc.
SECTION 11.9 Governing Law
SECTION 11.10 Successors and Assigns
SECTION 11.11 Sale and Transfer of Notes; Participations in Notes
SECTION 11.11.1 Assignments
SECTION 11.11.2 Participations
SECTION 11.12 Other Transactions
SECTION 11.13 Forum Selection and Consent to Jurisdiction
SECTION 11.14 Waiver of Jury Trial
SECTION 11.15 Confidentiality
SECTION 11.16 Special Purpose Funding Vehicle
EXHIBITS
Exhibit A - Revolving Note
Exhibit B - Borrowing Notice
Exhibit C - Lender Assignment Agreement
Exhibit D - Scheduled Properties
Exhibit E - Accountant's Letter
SCHEDULES
Schedule 6.5 - Litigation and Contingent Claims
Schedule 6.6 - Liens
Schedule 6.7 - Subsidiaries
Schedule 6.13 - Pension and Welfare Plans
Schedule 7.11 - Indebtedness
AMENDED AND RESTATED
REVOLVING LOAN AND CREDIT AGREEMENT
This AMENDED AND RESTATED REVOLVING LOAN AND CREDIT AGREEMENT, dated
as of June 2, 1999, among CHICAGO TITLE CORPORATION, a Delaware corporation
(CTC or the Borrower), CHICAGO TITLE AND TRUST COMPANY, an Illinois
corporation (CTT or the Company), the various financial institutions as
are or may become parties hereto (collectively, the Lenders), and LASALLE
BANK N.A., as administrative agent (the Administrative Agent) for the
Lenders.
W I T N E S E T H:
WHEREAS, on May 29, 1998 the Company entered into the Revolving Loan
and Credit Agreement with Lenders and Agent and, as of the date thereof,
the Company was wholly-owned by Alleghany Corporation, a Delaware
corporation (Alleghany), and was engaged directly and through its various
Subsidiaries in the business of issuing title insurance and providing other
related services for residential and commercial real estate transactions;
and
WHEREAS, as of June 17, 1998, Alleghany transferred all of the issued
and outstanding shares of the Company owned by Alleghany to CTC and
distributed the shares of CTC to Alleghany stockholders; and
WHEREAS, the Company requested that the Lenders substitute CTC as the
borrower under this Agreement and amend certain other provisions of the
Agreement; and
WHEREAS, the Lenders and the Administrative Agent wish to make
available to the Company the loans provided for herein to effect such
extension of credit on a revolving credit basis, in each case on the terms
and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, and subject to the terms and conditions hereof, the parties hereto,
intending to be bound hereby, further agree as follows:
SECTION 1.DEFINITIONS
SECTION 1.1DEFINED TERMS. The following terms (whether or not
underscored) when used in this Agreement, including its Preamble and
Recitals, shall, except where the context otherwise requires, have the
following meanings (such meanings to be equally applicable to the singular
and plural forms thereof):
ADJUSTED TOTAL ASSETS shall mean for any fiscal year the total assets
of the Company and its Subsidiaries on a consolidated basis as at the
commencement of such fiscal year, as shown on a consolidated balance sheet
of the Company prepared as at the end of the preceding fiscal year in
accordance with generally accepted accounting principles consistently
applied, less any amounts shown on such consolidated balance sheet
representing Unrestricted Assets.
ADMINISTRATIVE AGENT is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to SECTION 10.3.
AFFILIATE of any Person shall mean a corporation which controls, is
controlled by or is under common control with such Person.
AGREEMENT shall mean, on any date, the Revolving Loan and Credit
Agreement as the same may, from time to time, be amended, supplemented,
amended and restated, or otherwise modified and in effect as of such date.
ANNUAL STATEMENT BLANK shall mean the annual statement of the
conditions and affairs of each Title Insurance Subsidiary in the form
prescribed by its applicable State regulatory authority for title insurance
companies and prepared in accordance with applicable statutory accounting
principles.
APPLICABLE LIBOR MARGIN, for purposes of determining the interest
rate on a LIBOR Loan, means initially 0.25% (the Normal LIBOR Margin),
provided, however, that the Normal LIBOR Margins shall be subject to
quarterly adjustment, commencing with the fiscal quarter commencing July 1,
1998, based on the following matrix:
Applicable LIBOR Margin
Leverage Ratio for LIBOR Loans
Less than 0.20:1.00 0.25%
0.20:1.00 through but less
than 0.25:1.00 0.30%
0.25:1.00 through but less
than 0.30:1.00 0.35%
0.30:1.00 through but less
than 0.35:1.00 0.40%
Greater than or equal to
0.35:1.00 0.50%
APPROVED INVESTMENTS shall mean investments (i) in direct obligations
of, or obligations the principal of and interest on which are fully
guaranteed by, the United States of America, (ii) in obligations issued or
guaranteed by any agency or instrumentality of the United States of
America, (iii) in certificates of deposit of, and time deposits in, any
bank organized under the laws of the United States of America or any State
thereof whose short-term commercial paper rating from Standard & Poor's
Corporation is at least A-1 or the equivalent thereof or from ▇▇▇▇▇'▇
Investors Service, Inc. is at least P-1 or the equivalent thereof (or in
the event that neither such company is providing such service, any other
similar nationally recognized rating service), or (iv) in short-term notes
or other obligations rated P-1 by ▇▇▇▇▇'▇ Investors Service, Inc. or A-1 by
Standard and Poor's Corporation (or in the event that neither such company
is providing such service, any other similar nationally recognized rating
service).
ASSIGNEE LENDER is defined in SECTION 11.11.1.
AUTHORIZED OFFICER means one or more officers of the Company duly
authorized (and so certified to the Administrative Agent by the corporate
Secretary of the Company pursuant to a certificate of authority and
incumbency from time to time satisfactory to Administrative Agent), acting
alone, to request Loans hereunder and execute and deliver documents,
instruments, agreements, reports, statements and certificates in connection
herewith.
BASE RATE means, for any day, the higher of (a) the sum of (x) one-half
percent (0.50%) plus (y) the latest Federal Funds Rate; and (b) the
rate of interest in effect for such day as publicly announced from time to
time by the Administrative Agent in Chicago, Illinois as its prime
commercial rate. The prime commercial rate is a rate set by the
Administrative Agent based upon various factors including the
Administrative Agent's costs and desired return, general economic
conditions and other factors and is used as a reference point for pricing
some loans, which may be priced at, above or below such announced rate; any
change in the Base Rate resulting from a change in said prime commercial
rate shall be effective as of the date of the relevant change in said prime
commercial rate.
BASE RATE LOAN means a Loan bearing interest at the rate specified in
Section 3.1(a) hereof.
BORROWING NOTICE means the request of the Company for Loans, as
further described in Section 3.3 hereof.
BUSINESS DAY shall mean
(a)any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in Chicago,
Illinois and New York, New York; and
(b)relative to the making, continuing, prepaying or repaying of
any LIBOR Loans, any day on which dealings in Dollars are carried on in the
London interbank market.
CAPITALIZED LEASE of a Person means any lease of real or personal
property by such Person as lessee which would be capitalized on a balance
sheet of such Person prepared in accordance with generally accepted
accounting principles.
CAPITALIZED LEASE OBLIGATIONS of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as
a liability on a balance sheet of such Person prepared in accordance with
generally accepted accounting principles.
CASH AND MARKETABLE SECURITIES shall mean as at the end of any fiscal
quarter (i) with respect to the Title Insurance Subsidiaries all assets on
a combined basis for the Title Insurance Subsidiaries which are included on
page 2, lines 1, 2.1, 2.2, and 6 (excluding preferred stock and common
stock of Affiliates) of the Form 9 Annual Statement Blank and the Quarterly
Statement Blank of the Title Insurance Subsidiaries as at such date (or the
equivalent items if the forms of said Annual Statement Blank or Quarterly
Statement Blank shall be amended) and (ii) with respect to the Company, all
assets which would be included on page 2, lines 1, 2.1, 2.2, and 6
(excluding preferred stock and common stock of Affiliates) of the Form 9
Annual Statement Blank of the Company (or the equivalent items if the form
of said Annual Statement Blank shall be amended) if the Company was filing
such form based on applicable statutory accounting principles applied on a
basis consistent with those applied on December 31, 1998.
COMMITMENT shall mean, relative to any Lender, such Lender's
obligation to make Loans pursuant to Section 2.1.
COMPANY shall mean prior to the date hereof, CTT, and as of the date
hereof, CTC.
COMMITMENT AMOUNT shall mean, on any date $50,000,000, or such lesser
amount resulting from any termination by the Company pursuant to Section
3.9.
CONSOLIDATED NET INCOME shall mean consolidated total revenues of the
Company and its Subsidiaries, less all consolidated charges which should be
deducted before arriving at net income, as determined in accordance with
generally accepted accounting principles.
CONSOLIDATED NET WORTH shall mean the sum of the capital stock,
additional paid-in capital and retained earnings accounts of the Company
and its Subsidiaries as shown on the Company's consolidated balance sheet
prepared in accordance with generally accepted accounting principles;
provided, however that Consolidated Net Worth shall be reduced by the face
amount of any debt instruments of Affiliates which are not Subsidiaries of
the Company owned by the Company or its Subsidiaries. The Company
implemented at December 31, 1993, the provisions of Statement of Financial
Accounting Standards Bulletin Number 115. Under this statement, the
Company's investments in certain marketable securities are periodically
valued at fair values, with the changes in such values being recorded
directly in stockholder's equity. The Company and the Lenders agree that
for purposes of the computation of Consolidated Net Worth, unrealized gains
and losses resulting from such changes in fair values shall be excluded
from such computations.
CONTROLLED GROUP shall mean all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Company, are treated as a single employer under Section 414(b) or 414(c) of
the Internal Revenue Code or Section 4001 of ERISA.
CTC shall mean Chicago Title Corporation, a Delaware corporation.
CTI shall mean Chicago Title Insurance Company, a Missouri
corporation and Subsidiary of the Company.
CTT shall mean Chicago Title and Trust Company, an Illinois
corporation.
DEBT SERVICE shall mean, for any fiscal period, the sum of (i)
Interest Expense for such period, plus (ii) all amounts of principal paid
or payable on all indebtedness for borrowed money or for the deferred
purchase price of property (including the Notes for such period, plus (iii)
any reductions from time to time in Capitalized Lease Obligations appearing
as indebtedness on the liability side of a balance sheet in accordance with
generally accepted accounting principles; provided that the term Debt
Service shall not include any obligation to the extent such obligation is
permitted by Section 7.11(v), 7.11(vii) or 7.11(x).
DEFAULT RATE is defined in Section 3.7.
DOLLAR AND $ shall mean lawful money of the United States.
DOMESTIC OFFICE shall mean, relative to any Lender, the office of
such Lender designated as such below its signature hereto or designated in
the Lender Assignment Agreement or such other office of a Lender (or any
successor or assign of such Lender) within the United States as may be
designated from time to time by notice from such Lender, as the case may
be, to each other Person party hereto.
EARNINGS BEFORE INTEREST AND TAXES shall mean, for any fiscal period,
the sum of (i) Consolidated Net Income of the Company for such period, plus
(ii) all Interest Expense of the Company and its Subsidiaries deducted in
determining Consolidated Net Income for such period, plus (iii) any
provision for federal, state or local income taxes or franchise taxes
deducted in determining Consolidated Net Income for such period, as
determined in accordance with generally accepted accounting principles.
ENVIRONMENTAL LAWS shall mean all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines
(including consent decrees and administrative orders) relating to public
health and safety and protection of the environment.
ERISA shall mean the Employee Retirement Income Security Act of 1974,
as amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA also refer to any successor sections.
EURODOLLAR RESERVE PERCENTAGE is defined in Section 3.1(b) hereof.
EVENT OF DEFAULT shall mean any of the events described in Section
9.1.
1031 EXCHANGE ACTIVITIES shall mean transactions in which the Company
or any of its Affiliate Companies act as a qualified intermediary,
qualified trustee or qualified escrowee in the exchange of property held
for productive use or investment pursuant to the provisions of Section 1031
of the Internal Revenue Code of 1986, as amended.
EXPIRATION DATE is defined in Section 2.1.
FACILITY FEE is the amount per annum equal to the following
percentage multiplied by the Commitment Amount payable in arrears on the
last day of each calendar quarter, commencing June 30, 1998 (initially
0.10%):
Leverage Ratio Applicable Facility Fee
Less than 0.20:1.00 0.10%
0.20:1.00 through but less
than 0.25:1.00 0.125%
0.25:1.00 through but less
than 0.30:1.00 0.15%
0.30:1.00 through but less
than 0.35:1.00 0.20%
Greater than or equal to
0.35:1.00 0.25%
The Administrative Agent shall determine the Facility Fee, and its
determination thereof shall be conclusive and binding except in the case of
manifest error. Not later than fifteen (15) days after the Administrative
Agent's receipt of the quarterly financial statements required by Section
7.1.3 hereof for a given fiscal quarter (or, in the case of year end, the
receipt of the annual financial statements required by Section 7.1.2 hereof
for a given fiscal year) and the letter from the Company, accompanied by a
certificate signed by the Chief Financial Officer or Treasurer of the
Company computing the Leverage Ratio as of the close of the most recently
completed fiscal quarter required by Section 3.1(c) hereof, the
Administrative Agent shall determine whether such financial information
indicates such a change in the Leverage Ratio as would justify a change in
the Facility Fee and shall then notify the Company of such determination
and of any change in the Facility Fee resulting therefrom. Any change in
the Facility Fee shall be effective retroactively as of the close of the
most recently completed fiscal quarter and with such new Facility Fee to
continue in effect until the effectiveness of the next redetermination
thereof. Any determination by the Administrative Agent of the Leverage
Ratio shall be conclusive and binding upon the Company except in the case
of manifest error.
FEDERAL FUNDS RATE shall mean, for any period, a fluctuating
interest rate per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on transactions in
an amount equal to the outstanding principal amount of the Notes received
by the Administrative Agent from three federal funds brokers of recognized
standing selected by it.
INDEMNIFIED LIABILITIES is defined in Section 11.4.
INDEMNIFIED PARTIES is defined in Section 11.4.
INTEREST EXPENSE shall mean, for any fiscal period, all amounts
paid or payable by the Company and its Subsidiaries on a consolidated basis
as interest expense on all indebtedness for borrowed money or for the
deferred purchase price of property or as the implicit interest expense on
all obligations which are regarded as Capitalized Lease Obligations for
accounting purposes, as determined in accordance with generally accepted
accounting principles, provided that the term Interest Expense shall not
include any interest on any obligation to the extent such obligation is
permitted by Section 7.11(v), 7.11(vii) or 7.11(x).
INTEREST PERIOD is defined in Section 3.4 hereof.
INVESTMENT BORROWINGS shall mean indebtedness of the Company or a
Subsidiary having a maturity of 92 days or less representing borrowings
from a bank or banks with which the Company or such Subsidiary has a
depositary relationship, which borrowings shall be fully secured by
Approved Investments purchased by the Company with the proceeds of such
borrowings.
LASALLE shall mean LaSalle Bank N.A., and any successor corporation
thereto by merger, consolidation or otherwise.
LENDER ASSIGNMENT AGREEMENT shall mean a Lender Assignment Agreement
substantially in the form of EXHIBIT C hereto.
LENDERS - see Preamble.
LEVERAGE RATIO means the ratio of Long-Term Indebtedness to
Consolidated Net Worth.
LIBOR LOAN means a Loan bearing interest at the rate specified in
Section 3.1(b) hereof.
LOANS is defined in Section 2.1.
LOAN DOCUMENTS shall mean this Agreement, the Notes and each
Borrowing Notice.
LONG-TERM INDEBTEDNESS shall mean all indebtedness of the Company and
its Subsidiaries for borrowed money or on account of deposits (other than
trust and escrow balances) or advances, all indebtedness of the Company and
its Subsidiaries for the deferred purchase price of property and services
to the extent provided in Section 7.11, all indebtedness of others assumed
or guaranteed by the Company or any of its Subsidiaries or in respect of
which the Company or any Subsidiary is secondarily or contingently liable
(other than (x) by endorsement of negotiable instruments in the course of
collection, and (y) other indebtedness of others guaranteed by the Company
or any of its Subsidiaries or in respect of which the Company or any
Subsidiary is secondarily or contingently liable not exceeding at any one
time an aggregate of $15,000,000) and all Capitalized Lease Obligations of
the Company and its Subsidiaries, which indebtedness or obligation is in
each case by its terms payable more than one year after the date of such
determination; provided that the term Long-Term Indebtedness shall not
include any obligation which is permitted by Section 7.11(vii), 7.11(viii)
or 7.12 nor shall it include any obligation to the extent such obligation
is permitted by Section 7.11(x).
LOSS RESERVES shall mean as at the end of any fiscal quarter all
amounts for the Title Insurance Subsidiaries on a combined basis which are
shown as Reserve for undetermined title losses of which notice has been
received on line 1, page 3 of the Form 9 Annual Statement Blank and the
Quarterly Statement Blank of the Title Insurance Subsidiaries as at such
date (or the equivalent item if the forms of said Annual Statement Blank or
Quarterly Statement Blank shall be amended).
MATERIAL ADVERSE EFFECT means, relative to any occurrence, event,
condition or circumstance, or any change therein, of whatever nature
(including any adverse determination in any litigation, arbitration, or
governmental investigation or proceeding), a materially adverse effect on:
(i) the assets of or the business, financial condition, or operations of
the Company and its Subsidiaries taken as a whole; (ii) the ability of the
Company to timely or fully perform any of the payment, performance or other
material obligations involving the Loan Documents or a payment default in
respect of any of their debt in excess of $10,000,000 or other default the
effect of which is to accelerate the maturity of any of their debt in
excess of $10,000,000; (iii) the legality, validity, binding effect,
enforceability or admissibility into evidence of any Loan Document or the
ability of the Administrative Agent or any Lender to enforce any rights or
remedies under or in connection with any Loan Document.
NET ASSET SALES shall mean, for any fiscal year, the excess, if any,
of (i) sales or other dispositions of assets in such fiscal year, over (ii)
purchases or other acquisitions of assets in such fiscal year; provided,
however, that Net Asset Sales shall not include sales or purchases of
Unrestricted Assets. Repayments by third parties to the Company or any
Subsidiary of loans and other amounts receivable shall not be deemed to be
sales or other dispositions of assets for purposes of the foregoing
definition.
NOTE shall mean a promissory note of the Company payable to any
Lender, in the form of EXHIBIT A hereto (as such promissory note may be
amended, endorsed, supplemented, substituted, renewed, extended, restated,
or otherwise modified from time to time), evidencing the aggregate
indebtedness of the Company to such Lender resulting from outstanding
Loans, and also means all other promissory notes accepted from time to time
in substitution therefor or renewal thereof.
OBLIGATIONS shall mean all obligations (monetary or otherwise) of the
Company arising under and in connection with this Agreement, the Notes or
any other Loan Document.
PARTICIPANT is defined in Section 11.11.2.
PBGC shall mean the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
PENSION PLAN shall mean a pension plan, as such term is defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA), and to which
the Company or any corporation, trade or business that is, along with the
Company, a member of a Controlled Group, may have liability, including any
liability by reason of having been a substantial employer within the
meaning of Section 4063 of ERISA at any time during the preceding five
years, or by reason of being deemed to be a contributing sponsor under
Section 4069 of ERISA.
PERCENTAGE shall mean, relative to any Lender, the percentage set
forth opposite its signature hereto or set forth in the Lender Assignment
Agreement, as such percentage may be adjusted from time to time pursuant to
Lender Assignment Agreement(s) executed by such Lender and its Assignee
Lender(s) and delivered pursuant to Section 11.11.
PERSON shall mean any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or any other entity,
whether acting in an individual, fiduciary or other capacity.
PLAN shall mean any Pension Plan or Welfare Plan.
QUARTERLY STATEMENT BLANK shall mean the quarterly statement of the
conditions and affairs of each Title Insurance Subsidiary in the form
prescribed by its applicable State regulatory authority for title insurance
companies and prepared in accordance with applicable statutory accounting
principles.
REFERENCE BANK means ABN/AMRO Bank.
REQUIRED LENDERS shall mean, at any time, Lenders holding at least
51% of the then aggregate outstanding principal amount of the Notes then
held by the Lenders, or, if no such principal amount is then outstanding,
Lenders having at least 51% of the Commitments.
RESTRICTED PAYMENTS is defined in Section 7.10.
REVOLVING LOAN or REVOLVING LOANS is defined in Section 2.1.
SCHEDULED PROPERTIES shall mean the real property listed on Exhibit D
hereto.
SECURITY UNION shall mean Security Union Title Insurance Company, a
California corporation.
STATUTORY PREMIUM RESERVE shall mean as at the end of any fiscal
quarter all amounts on a combined basis for the Title Insurance
Subsidiaries which would be shown as statutory premium reserve on line 2,
page 3 of the Form 9 Annual Statement Blank and the Quarterly Statement
Blank of the Title Insurance Subsidiaries as at such date (or the
equivalent item if the forms of said Annual Statement Blank or Quarterly
Statement Blank shall be amended).
STATUTORY SURPLUS shall mean as at the end of any fiscal quarter the
combined surplus of all Title Insurance Subsidiaries, computed for them in
the same manner as the item that is required to be filed as Surplus as
Regards Policy Holders on line 26, page 3 of the Form 9 Annual Statement
Blank and the Quarterly Statement Blank of the Title Insurance Subsidiaries
as at such date (or the equivalent item if the forms of said Annual
Statement Blank or Quarterly Statement Blank shall be amended).
SUBSIDIARY shall mean a corporation of which the Company and/or its
other Subsidiaries own, directly or indirectly, such number of outstanding
shares as have more than 50% of the ordinary voting power for the election
of directors.
TAXES is defined in Section 5.1.
TERMINATION DATE means May 29, 2004.
TITLE INSURANCE SUBSIDIARIES shall mean CTI, Security Union and TT;
provided, however, that in the event a Subsidiary of CTI, Security Union or
TT in existence on the date of execution and delivery hereof subsequently
becomes a direct Subsidiary of the Company, the term Title Insurance
Subsidiaries shall mean CTI, Security Union, TT and such Subsidiary. In
determining compliance by the Title Insurance Subsidiaries with the various
covenants applicable to them in Section 7, such determinations shall be
based on applicable statutory accounting principles applied on a basis
consistent with those at the time in effect. It is understood and agreed
that statutory accounting principles require that all Subsidiaries of Title
Insurance Subsidiaries be carried on the books of such Title Insurance
Subsidiaries on a statutory equity basis.
TT shall mean Ticor Title Insurance Company, a California
corporation.
TYPE means, with regard to each Loan, such Loan is either a Base Rate
Loan or a LIBOR Loan.
UNMATURED EVENT OF DEFAULT shall mean any event which if it continues
uncured will, with lapse of time or notice or lapse of time and notice,
constitute an Event of Default.
UNRESTRICTED ASSETS shall mean cash and marketable securities
(including, without limitation, certificates of deposit and assets pledged
to secure trust and escrow deposits), mortgages and non-operating real
estate (including, without limitation, claims acquired properties).
WELFARE PLAN shall mean a welfare plan, as such term is defined in
Section 3(1) of ERISA.
SECTION 1.2 USE OF DEFINED TERMS. Unless otherwise defined or
the context otherwise requires, terms for which meanings are provided in
this Agreement shall have such meanings when used in each Note, Borrowing
Notice, notice and other communication delivered from time to time in
connection with this Agreement.
SECTION 1.3 CROSS-REFERENCES. Unless otherwise specified,
references in this Agreement and in each other Loan Document to any Section
are references to such Section of this Agreement.
SECTION 1.4 ACCOUNTING TERMS; FINANCIAL STATEMENTS. All
accounting terms used herein but not expressly defined in this Agreement
have the respective meanings given to them in accordance with generally
accepted accounting principles. Unless otherwise provided herein, all
computations and determinations for purposes of determining compliance with
the financial requirements of this Agreement shall be made in accordance
with generally accepted accounting principles on a basis consistent with
those at the time in effect; provided, however, that if any changes in
generally accepted accounting principles are hereafter required or
permitted and are adopted by the Company and such changes result in a
material change in the method of calculation of any of the financial
covenants or restrictions contained in Section 7 or in the related
definitions or terms used herein, the parties hereto agree to enter into
negotiations in good faith in order to amend such provisions so as to
reflect equitably such changes with the desired result that the criteria
for evaluating the Company's financial condition shall be the same after
such changes as if such changes had not been made.
SECTION 1.5 1031 EXCHANGE ACTIVITIES. Any debt reported on the
Financial Statements of the Company or any of its affiliate companies
resulting from 1031 exchange activities prior to June 30, 1999 shall be
excluded from all financial covenant tests under Section 7 hereof.
SECTION 2. COMMITMENT OF THE LENDERS; CONDITIONS.
SECTION 2.1 COMMITMENT. Subject to the terms and conditions of
this Agreement, the Lenders severally agree to lend to the Company at any
time and from time to time, from the date hereof until the earlier of the
Termination Date or the occurrence of an Event of Default or Unmatured
Event of Default hereunder (the earlier of such dates hereinafter referred
to as the Expiration Date), such sums, in a minimum amount(s) as set
forth in Section 3.2 hereof, as the Company may request from time to time
by a Borrowing Notice pursuant to Section 3.3 hereof; provided, however,
that the aggregate principal amount of all loans outstanding under this
Section 2.1 (individually, a Revolving Loan or Loan or, collectively,
the Revolving Loans or Loans) at any one time shall not exceed Fifty
Million Dollars ($50,000,000) (such obligations hereinafter referred to as
the Commitment). Subject to the terms and conditions hereof, the Company
may borrow or repay and reborrow hereunder, from the date hereof until the
Expiration Date, either the full amount of the Commitment or any lesser sum
in the minimum amounts referred to herein. If, at any time, the Revolving
Loans exceed the Commitment, the Company shall immediately notify the
Administrative Agent of the existence of and pay to the Administrative
Agent the amount of such excess. Borrowings of the Loans shall be made
ratably from the Lenders in proportion to their respective Percentages.
SECTION 2.2 CONDITIONS TO THE LOANS. Notwithstanding any other
provision of this Agreement, no Lender shall be required to make the Loans
provided for hereunder if the conditions precedent to the making of the
Loans specified in Section 8 have not been satisfied.
SECTION 3. GENERAL PROVISIONS APPLICABLE TO ALL LOANS.
SECTION 3.1 APPLICABLE INTEREST RATES. The Company may elect
that each borrowing of Loans be made by means of a Base Rate Loan or a
LIBOR Loan; provided, however, that there shall not be more than eight
borrowings of LIBOR Loans outstanding at any time.
(a) BASE RATE LOANS. Each Base Rate Loan made by the Lenders shall
bear interest (computed on the basis of a year of 360 days and actual days
elapsed) on the unpaid principal amount thereof from the date such Loan is
made until maturity (whether by acceleration or otherwise) at a rate per
annum equal to the Base Rate from time to time in effect. Interest on all
Base Rate Loans is payable on the last day of each calendar quarter and at
maturity (whether by acceleration or otherwise) commencing June 30, 1998.
(b) LIBOR LOANS. Each LIBOR Loan made by the Lenders shall bear
interest (computed on the basis of a year of 360 days and actual days
elapsed) on the unpaid principal amount thereof from the date such Loan is
made until maturity (whether by acceleration or otherwise) at a rate per
annum equal to the sum of (x) the Applicable LIBOR Margin for LIBOR Loans
plus (y) the Adjusted LIBOR, payable on the last day of the applicable
Interest Period and at maturity (whether by acceleration or otherwise),
and, if the applicable Interest Period is longer than three months, on each
day occurring every three months after the date such Loan is made.
ADJUSTED LIBOR means, for any borrowing of LIBOR Loans, a rate per
annum determined in accordance with the following formula:
LIBOR
-----------------------------
Adjusted LIBOR = 100% - Eurodollar Reserve Percentage
LIBOR means, for an Interest Period for a borrowing of LIBOR Loans,
the offered rate per annum for deposits of Dollars for the requested period
that appears on Telerate Page 3750 as of 11:00 A.M. (London, England time)
two (2) Business Days prior to the first day in such Interest Period. If
no such offered rate exists, such rate will be the rate of interest per
annum, as determined by the Administrative Agent (rounded upwards, if
necessary, to the nearest 1/100th of 1%) at which deposits of Dollars in
immediately available funds are offered at 11:00 A.M. (London, England
time) two (2) Business Days prior to the first day in such Interest Period
by major financial institutions reasonably satisfactory to the
Administrative Agent in the London interbank market for the requested
period and for an amount equal or comparable to the principal amount of the
LIBOR Loans outstanding on such date of determination. If no such deposits
are offered by such institutions, such rate will be the rate in effect for
the prior Interest Period.
EURODOLLAR RESERVE PERCENTAGE means, for any borrowing of LIBOR
Loans, the daily average for the applicable Interest Period of the maximum
rate at which reserves (including, without limitation, any supplemental,
marginal and emergency reserves) are imposed during such Interest Period by
the Board of Governors of the Federal Reserve System (or any successor)
under Regulation D on eurocurrency liabilities, as defined in such
Board's Regulation D, (or in respect of any other category of liabilities
that includes deposits by reference to which the interest rate on LIBOR
Loans is determined or any category of extension of credit or other assets
that include loans by non-United States offices of Lender to United States
residents) subject to any amendments of such reserve requirement by such
Board or its successor, taking into account any transitional adjustments
thereto. For purposes of this definition, the LIBOR Loans shall be deemed
to be eurocurrency liabilities as defined in Regulation D.
(c) MARGIN AND RATE DETERMINATIONS. The Administrative Agent shall
determine each interest rate applicable to the Loans hereunder, and its
determination thereof shall be conclusive and binding except in the case of
manifest error. Not later than fifteen (15) days after the Administrative
Agent's receipt of the quarterly financial statements required by Section
7.1.3 hereof for a given fiscal quarter (or, in the case of a year end, the
receipt of the annual financial statements required by Section 7.1.2 hereof
for a given fiscal year) and a letter from the Company requesting a change
in the Applicable LIBOR Margin, accompanied by a certificate signed by the
Chief Financial Officer or Treasurer of the Company computing the Leverage
Ratio as of the close of the most recently completed fiscal quarter, the
Administrative Agent shall determine whether such financial information
indicates such a change in the Leverage Ratio as would justify a change in
the Applicable LIBOR Margin and shall then notify the Company of such
determination and of any change in the Applicable LIBOR Margin resulting
therefrom. Any change in the Applicable LIBOR Margin shall be effective
retroactively as of the close of the most recently completed fiscal quarter
and with such new Applicable LIBOR Margin to continue in effect until the
effectiveness of the next redetermination thereof. Any determination by
the Administrative Agent of the Leverage Ratio shall be conclusive and
binding upon the Company except in the case of manifest error.
SECTION 3.2 MINIMUM AND MAXIMUM BORROWING AMOUNTS. Each
borrowing of Base Rate Loans shall be in an amount not less than $500,000
or any larger amount that is an integral multiple of $100,000. Each
borrowing of LIBOR Loans shall be in an amount not less than $1,000,000, or
any larger amount that is an integral multiple of $100,000.
SECTION 3.3 BORROWING PROCEDURES.
(a) NOTICE TO THE ADMINISTRATIVE AGENT. The Company shall give
telephonic or telecopy notice to the Administrative Agent in the form
attached hereto as Exhibit B (the Borrowing Notice) (which notice shall
be irrevocable once given and, if by telephone, shall be promptly confirmed
in writing) by no later than 12:00 noon (Chicago time) (i) on the date at
least three (3) Business Days prior to the date of each requested borrowing
of LIBOR Loans and (ii) on the date of any requested borrowing of Base Rate
Loans. Each such notice shall specify (i) the date of the requested
borrowing (which shall be a Business Day), (ii) the amount of the requested
borrowing, (iii) the type of Loans requested (if no election as to type of
borrowing is specified in any such notice, then the requested borrowing
shall be of Base Rate Loans), and (iv) if such borrowing is to be comprised
of LIBOR Loans, the Interest Period applicable thereto. The Company agrees
that the Administrative Agent may rely on any such telephonic or telecopy
notice given by any person the Administrative Agent in good faith believes
is an Authorized Officer without the necessity of independent investigation
and in the event any notice by such means conflicts with the written
confirmation, such telephone or telecopy notice shall govern if the
Administrative Agent has acted in reliance thereon.
(b) DISBURSEMENT OF LOANS. Not later than 2:00 p.m. (Chicago time)
on the date of any borrowing (a Funding Date) of LIBOR Loans or Base Rate
Loans, each Lender shall make available its Loan in funds immediately
available in Chicago, Illinois, except to the extent such borrowing is
either a reborrowing, in whole or in part, of the principal amount of a
maturing borrowing of Loans (a Refunding Borrowing) in which case Lender
shall record the Loan made by it as a part of such Refunding Borrowing on
its books or records or on a schedule to the appropriate Note, as provided
in Section 3.8(b) hereof, and shall effect the repayment, in whole or in
part, as appropriate, of its maturing Loan or reimbursement obligation
through the proceeds of such new Loan. Subject to Section 8 hereof, the
Lenders shall make the proceeds of each borrowing available to the Company
at the Administrative Agent's principal office in Chicago, Illinois.
SECTION 3.4 INTEREST PERIODS. As provided in Section 3.3 hereof,
at the time of each request for the borrowing of LIBOR Loans hereunder the
Company shall select an Interest Period applicable to such Loans from among
the available options. The term Interest Period means the period
commencing on the date a borrowing of LIBOR Loans is made and ending on the
date, as the Company may select, 1, 2 or 3, 6 or 12 months thereafter;
provided, however, that:
(a) the Company may not select an Interest Period that extends
beyond the Termination Date;
(b) whenever the last day of any Interest Period would otherwise be
a day that is not a Business Day, the last day of such Interest
Period shall be extended to the next succeeding Business Day,
provided that, if such extension would cause the last day of
such Interest Period to occur in the following calendar month,
the last day of such Interest Period shall be the immediately
preceding Business Day; and
(c) for purposes of determining the Interest Period for a borrowing
of LIBOR Loans, a month means a period starting on one day in a
calendar month and ending on the numerically corresponding day
in the next calendar month; provided, however, that if there is
no numerically corresponding day in the month in which such an
Interest Period is to end or if such an Interest Period begins
on the last Business Day of a calendar month, then such
Interest Period shall end on the last Business Day of the
calendar month in which such Interest Period is to end.
SECTION 3.5 RENEWALS AND CONVERSIONS. The Company may elect from
time to time to convert all or a part of one Type of Loan into another Type
of Loan or to renew all or part of a Loan by giving the Administrative
Agent notice (effective upon receipt) by 12:00 noon (Chicago time) on the
proposed date of conversion into a Base Rate Loan, and at least three (3)
Business Days before the conversion into or renewal of a LIBOR Loan,
specifying (i) the renewal or conversion date, (ii) the amount of the Loans
to be converted or renewed, (iii) in the case of conversions, the Type of
Loan to be converted into, and (iv) in the case of renewals of or
conversion into LIBOR Loans, the duration of the Interest Period applicable
to such Loan, provided that (a) after such renewal or conversion the
minimum principal amount of each Loan with the same Interest Period shall
be One Million Dollars ($1,000,000), and (b) LIBOR Loans can only be
renewed or converted on the last day of the Interest Period for such Loan.
The Administrative Agent shall promptly notify each applicable Lender of
each such notice. All conversions shall be made on a proportional basis
among the Lenders providing such converted Loan.
The Company shall give telephonic or telecopy notice to the
Administrative Agent (which notice shall be irrevocable once given, and if
by telephone, shall be promptly confirmed in writing) and shall be given
not later than 12:00 noon (Chicago time) on a Business Day which is not
less than the number of Business Days specified above for such notice. If
the Company fails to give the Administrative Agent the notice specified
above for the renewal or conversion of a LIBOR Loan prior to the end of the
Interest Period of such Loan, such Loan shall automatically be converted
into a Base Rate Loan on the last day of the Interest Period for such Loan.
SECTION 3.6 PREPAYMENTS.
(a) GENERALLY. The Company shall have the privilege of prepaying
without premium or penalty and in whole or in part (but, if in part, then:
(i) in an amount not less than $500,000 or any larger amount that is an
integral multiple of $100,000 in the case of Base Rate Loans, and in an
amount not less than $1,000,000 or any larger amount that is an integral
multiple of $100,000 in the case of LIBOR Loans and (ii) in an amount such
that the minimum amount required for a borrowing pursuant to Section 3.2
hereof remains outstanding) on any Business Day upon prior notice to the
Administrative Agent which must be received by the Administrative Agent by
no later than 12:00 noon (Chicago time) on the date of such prepayment in
the case of Base Rate Loans and by no later than 12:00 noon (Chicago time)
on the date three Business Days in advance of the date of such prepayment
in the case of LIBOR Loans, such prepayment to be made by the payment of
the principal amount to be prepaid and accrued interest thereon and, in the
case of LIBOR Loans, any compensation required by Section 3.10 hereof.
Partial prepayments of any outstanding type of Loan shall be applied to the
various borrowings at the direction of the Company.
(b) REBORROWINGS. Any amount paid or prepaid on the Revolving
Loans before the Expiration Date may, subject to the terms and conditions
of this Agreement, be borrowed, repaid and borrowed again.
SECTION 3.7 DEFAULT RATE. If any Event of Default has occurred
and is continuing, then each Loan or other monetary Obligation shall bear
interest, after as well as before judgment (computed on the basis of a year
of 360 days and actual days elapsed) from the date of such Event of Default
until such Loan or other monetary Obligation is paid in full, payable on
demand, at a rate per annum (the Default Rate) equal to:
(a) with respect to any Base Rate Loan, the sum of two percent (2%)
plus the Base Rate from time to time in effect; and
(b) with respect to any LIBOR Loan, the sum of two percent (2%)
plus the rate of interest in effect thereon at the time of such default
until the end of the Interest Period applicable thereto and, thereafter, at
a rate per annum equal to the sum of two percent (2%) plus the Base Rate
from time to time in effect; and
(c) with respect to other monetary Obligations for which a Default
Rate is not otherwise specified, the sum of two percent (2%) plus the Base
Rate from time to time in effect.
SECTION 3.8 NOTES.
(a) FORM OF NOTES. In order to evidence the Revolving Loans, at
the time of the making of the initial Revolving Loans, the Company will
execute and deliver promissory notes, dated the date hereof, payable to the
order of each Lender in the principal amount of its Commitment (together
with any and all amendments, modifications, supplements, substitutions,
renewals, extensions and restatements, thereof and therefor, individually,
the Note or collectively, the Notes), substantially in the form of
Exhibit A hereto.
(b) RECORDING PROCEDURES. The Administrative Agent and each Lender
shall record on their books or records or on a schedule to the appropriate
Note the amount of each Loan made by such Lender to the Company, the
Interest Period thereof (if applicable), all payments of principal and
interest and the principal balance from time to time outstanding thereon,
the interest rate applicable thereto, and, in respect of any Loan, the type
of such Loan; provided that prior to the transfer of any Note all such
amounts shall be recorded on a schedule to such Note. The record thereof,
whether shown on such books or records of such Lender and the
Administrative Agent or on a schedule to any Note, shall be prima facie
evidence as to all such amounts (and, in the case of any discrepancy
therein, in the absence of manifest error, the books and records of the
Administrative Agent shall control); provided, however, that the failure of
the Administrative Agent to record any of the foregoing or any error in any
such record shall not limit or otherwise affect the obligation of the
Company to repay all Loans made hereunder together with accrued interest
thereon. The Administrative Agent will account separately to the Company
monthly with a statement of Loans, charges and payments made to and by the
Company pursuant to this Agreement, and such accounts shall be deemed
final, binding and conclusive, save for manifest error, unless the
Administrative Agent is notified by the Company in writing to the contrary
within 30 days of the date the account to the Company was so rendered.
Such notice by the Company shall be deemed an objection to only those items
specifically objected to therein. Failure of the Administrative Agent to
render such account shall in no way offset the rights of the Administrative
Agent or of the Lenders hereunder. At the request of any Lender and upon
such Lender tendering to the Company the Note to be replaced, the Company
shall furnish a new Note to such Lender to replace any outstanding Note and
at such time the first notation appearing on a schedule on the reverse side
of, or attached to, such Note shall set forth the aggregate unpaid
principal amount of all Loans, if any, then outstanding thereon.
SECTION 3.9 COMMITMENT TERMINATIONS. The Company shall have the
right at any time and from time to time, upon prior written notice to the
Administrative Agent, to terminate without premium or penalty, in whole or
in part, any Commitment, each such termination (whether in whole or in
part) to be effective as of the close of the calendar quarter specified in
such notice (provided such effective date occurs no earlier than five (5)
Business Days after such notice) and each partial termination to be in an
amount not less than $500,000 or any larger amount that is an integral
multiple of $100,000; provided that the Commitments may not be reduced to
an amount less than the aggregate principal amount of the utilization then
outstanding thereunder. Any termination of Commitments pursuant to this
Section 3.9 may not be reinstated.
SECTION 3.10 FUNDING INDEMNITY. In the event any Lender shall
incur any loss, cost or expense (including, without limitation, any loss of
profit, and any loss, cost or expense incurred by reason of the liquidation
or re-employment of deposits or other funds acquired by such Lender to fund
or maintain any LIBOR Loan or the relending or reinvesting of such deposits
or amounts paid or prepaid to such Lender) as a result of:
(a) any payment (including prepayment) of a LIBOR Loan on a date
other than the last day of its Interest Period for any reason, whether
before or after default, and whether or not such payment is required by any
provisions of this Agreement, or
(b) any failure (because of a failure to meet the conditions of
Sections 2.2, 8 or otherwise) by the Company to borrow a LIBOR Loan on the
date specified in a notice given pursuant to Section 3.3 hereof,
then, upon the demand of such Lender, the Company shall pay to such Lender
such amount as will reimburse such Lender for such loss, cost or expense.
If such Lender makes such a claim for compensation, it shall provide to the
Company a certificate executed by an officer of such Lender setting forth
the amount of such loss, cost or expense in reasonable detail (including an
explanation of the basis for and the computation of such loss, cost or
expense) and the amounts shown on such certificate shall be deemed
rebuttably presumptive evidence of the correctness thereof.
SECTION 3.11 CHANGE IN CIRCUMSTANCES, ETC.
(a) CHANGE OF LAW. Notwithstanding any other provisions of this
Agreement or any Note, if at any time after the date hereof any change in
applicable Law or in the interpretation thereof makes it unlawful for any
Lender to make or continue to maintain LIBOR Loans or to give effect to its
obligations as contemplated hereby, such Lender shall promptly give notice
thereof to the Company and the Administrative Agent, and such Lender's
obligations to make or maintain LIBOR Loans under this Agreement shall
terminate until it is no longer unlawful for such Lender to make or
maintain LIBOR Loans. The Company shall prepay on demand the outstanding
principal amount of any such affected LIBOR Loans, together with all
interest accrued thereon and all other amounts then due and payable to such
Lender under this Agreement; provided, however, subject to all of the terms
and conditions of this Agreement, the Company may then elect to borrow the
principal amount of the affected LIBOR Loan from such Lender by means of a
Base Rate Loan from Lenders.
(b) UNAVAILABILITY OF DEPOSITS OR INABILITY TO ASCERTAIN, OR
INADEQUACY OF, LIBOR. If on or prior to the first day of any Interest
Period for any borrowing of LIBOR Loans:
(i) the Administrative Agent advises the Company that
deposits in United States Dollars (in the applicable amounts) are not being
offered to it or the Reference Bank in the interbank eurodollar market, for
such Interest Period, or
(ii) the Administrative Agent advises the Company that LIBOR
as determined by the Reference Bank will not adequately and fairly reflect
the cost to Lenders of funding LIBOR Loans for such Interest Period,
then, until the Administrative Agent notifies the Company and the Lenders
that the circumstances giving rise to such suspension no longer exist, the
obligation of the Lenders to make LIBOR Loans shall be suspended.
(c) INCREASED COST AND REDUCED RETURN.
(1) If on or after the date hereof, the adoption of any
applicable Law, or any change therein, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender with any request or directive (whether
or not having the force of law) of any such authority, central bank or
comparable agency:
(i) shall subject any Lender to any tax, duty or
other charge with respect to the Loans, the Notes or its obligation to make
Loans, or shall change the basis of taxation of payments of such Lender of
the principal of or interest on the Loans or any other amounts due under
this Agreement in respect of its Loans or its obligation to make Loans
(except for changes in the rate of tax on the overall net income of such
Lender imposed by the jurisdiction in which such Lender's principal
executive office is located); or
(ii) shall impose, modify or deem applicable any
reserve, special deposition or similar requirement (including, without
limitation, any such requirement imposed by the Board of Governors of the
Federal Reserve System, but excluding with respect to any LIBOR Loans any
such requirement included in an applicable Eurodollar Reserve Percentage)
against assets of, deposits with or for the account of, or credit extended
by, any Lender or shall impose on such Lender or on the interbank market
any other condition affecting the Loans, the Notes or such Lender's
obligation to make Loans;
and the result of any of the foregoing is to increase the cost to such
Lender of making or maintaining any Loan, or to reduce the amount of any
sum received or receivable by any Lender or the Administrative Agent under
this Agreement or under the Notes with respect thereto, by an amount deemed
by the Administrative Agent or such Lender to be material, then, within
fifteen (15) days after demand by the Administrative Agent or such Lender,
the Company shall be obligated to pay such Lender such additional amount or
amounts as will compensate the Administrative Agent and such Lender for
such increased cost or reduction (computed commencing on the effective date
of any event mentioned herein). The Administrative Agent or such Lender
agree to use their best efforts to give the Company notice of the
occurrence of any event mentioned herein.
(2) If the Administrative Agent or any Lender shall
determine that the adoption after the date hereof of any applicable Law
regarding capital adequacy, or any change in any existing Law, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the
Administrative Agent or any Lender (or any of their branches or any
corporation controlling the Administrative Agent or any Lender (or any of
its branches or any corporation controlling the Administrative Agent or any
Lender) with any request or directive regarding capital adequacy (whether
or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of
return on the Administrative Agent's or any Lender's or such corporation's
capital, as the case may be, as a consequence of the Administrative Agent's
or any Lender's obligations hereunder or for the credit which is the
subject matter hereof to a level below that which the Administrative Agent
or any Lender or such corporation could have achieved but for such
adoption, change or compliance (taking into consideration the
Administrative Agent's or any Lender's or such corporation's policies with
respect to liquidity and capital adequacy) by an amount deemed by the
Administrative Agent or any Lender to be material, then from time to time,
within fifteen (15) days after demand by the Administrative Agent or any
Lender, the Company shall pay to the Administrative Agent or such Lender
such additional amount or amounts reasonably determined by the
Administrative Agent or such Lender as will compensate the Administrative
Agent or such Lender for the reduction.
(d) DISCRETION OF LENDERS AS TO MANNER OF FUNDING. Notwithstanding
any other provision of this Agreement, each Lender shall be entitled to
fund and maintain its funding of all or any part of the Loans in any manner
it sees fit, it being understood, however, that for the purposes of this
Agreement all determinations hereunder shall be made as if such Lender had
actually funded and maintained each LIBOR Loan through the purchase of
deposits in the relevant market having a maturity corresponding to such
Loan's Interest Period and bearing an interest rate equal to LIBOR, for
such Interest Period.
SECTION 3.12 PLACE AND APPLICATION OF PAYMENTS. All payments of
principal of and interest on the Loans, and all payments of fees and all
other amounts payable under this Agreement shall be made to the
Administrative Agent no later than 12:00 Noon (Chicago time) at the
principal office of the Administrative Agent in Chicago, Illinois (or such
other location in the State of Illinois as the Lender may designate to the
Company). Any payments received after such time shall be deemed to have
been received by the Lenders on the next Business Day. All such payments
shall be made in lawful money of the United States of America, in
immediately available funds at the place of payment, without setoff or
counterclaim. Alternatively, at its sole discretion, the Administrative
Agent or any Lender may charge against or debit any deposit account or
other monies of the Company on deposit with or in possession of the
Administrative Agent or such Lender (other than accounts held in a
fiduciary capacity), all or any part of any amount due hereunder or under
the Notes. The Administrative Agent's and the Lender's right from time to
time after the occurrence or happening of an Event of Default hereunder
(which has not been cured or waived in a writing signed by the
Administrative Agent and such Lender) to set off indebtedness owing by the
Company to the Administrative Agent or such Lender against any Company's
monies, deposits, credits, accounts or other property now or at any time in
the possession or control of the Administrative Agent or such Lender,
except as provided herein, is hereby acknowledged and agreed to by the
Company.
SECTION 4. FEES.
SECTION 4.1 FEES. The Company agrees to pay the fees set forth
in this Section 4. All such fees shall be non-refundable.
SECTION 4.2 ADMINISTRATIVE AGENT'S FEE. The Company agrees to
pay to the Administrative Agent for its own account fees in the respective
amounts equal to the amounts previously agreed to in separate writings by
the Company and the Administrative Agent.
SECTION 4.3 FACILITY FEE. The Company agrees to pay to the
Administrative Agent on behalf of the Lenders the Facility Fee.
SECTION 5. TAXES AND OTHER MATTERS
SECTION 5.1 TAXES. All payments by the Company of principal of,
and interest on, the Notes and all other amounts payable hereunder shall be
made free and clear of and without deduction for any present or future
income, excise, stamp or franchise taxes and other taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed by any
taxing authority, but excluding franchise taxes and taxes imposed on or
measured by any Lender's net income or receipts (such non-excluded items
being called Taxes). In the event that any withholding or deduction from
any payment to be made by the Company hereunder is required in respect of
any Taxes pursuant to any applicable law, rule or regulation, then the
Company will
(a) pay directly to the relevant authority the full amount required
to be so withheld or deducted;
(b) promptly forward to the Administrative Agent an official
receipt or other documentation satisfactory to the Administrative Agent
evidencing such payment to such authority; and
(c) pay to the Administrative Agent for the account of the Lenders
such additional amount or amounts as is necessary to ensure that the net
amount actually received by each Lender will equal the full amount such
Lender would have received had no such withholding or deduction been
required.
Moreover, if any Taxes are directly asserted against the Administrative
Agent or any Lender with respect to any payment received by the
Administrative Agent or such Lender hereunder, the Administrative Agent or
such Lender may pay such Taxes and the Company will promptly pay such
additional amounts (including any penalties, interest or expenses) as is
necessary in order that the net amount received by such Person after the
payment of such Taxes (including any Taxes on such additional amount) shall
equal the amount such Person would have received had not such Taxes been
asserted.
If the Company fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent, for the
account of the respective Lenders, the required receipts or other required
documentary evidence, the Company shall indemnify the Lenders for any
incremental Taxes, interest or penalties that may become payable by any
Lender as a result of any such failure. For purposes of this Section 5.1, a
distribution hereunder by the Administrative Agent or any Lender to or for
the account of any Lender shall be deemed a payment by the Company.
Upon the request of the Company or the Administrative Agent, each
Lender that is organized under the laws of a jurisdiction other than the
United States shall, prior to the due date of any payments under the Notes,
execute and deliver to the Company and the Administrative Agent, on or
about the first scheduled payment date in each fiscal year, one or more (as
the Company or the Administrative Agent may reasonably request) United
States Internal Revenue Service Forms 4224 or Forms 1001 or such other
forms or documents (or successor forms or documents), appropriately
completed, as may be applicable to establish the extent, if any, to which a
payment to such Lender is exempt from withholding or deduction of Taxes.
SECTION 5.2 MAKING OF LOANS BY ADMINISTRATIVE AGENT.
SECTION 5.2.1 ASSUMPTIONS BY ADMINISTRATIVE AGENT. Notwithstanding
the occurrence or continuance of an Unmatured Event of Default or Event of
Default or other failure of any condition to the making of Loans hereunder,
unless the Administrative Agent shall have received notice from a Lender in
accordance with the provisions of Section 5.2.2 prior to a proposed
borrowing date that such Lender will not make available to the
Administrative Agent such Lender's Percentage of the amount to be borrowed
on such date, the Administrative Agent may assume that such Lender will
make such portion available to the Administrative Agent in immediately
available funds, and the Administrative Agent may (but shall not be so
required), in reliance upon such assumption, make available to the Company
on such date a corresponding amount. If and to the extent any Lender shall
not have made its full amount available to the Administrative Agent in
immediately available funds and the Administrative Agent in such
circumstances has made available to the Company such amount, that Lender
shall on the next Business Day following the date of such borrowing make
such amount available to the Administrative Agent, together with interest
at the Federal Funds Rate for and determined as of each day during such
period. A notice of the Administrative Agent submitted to any Lender with
respect to amounts owing under this Section 5.2.1 shall be conclusive,
absent manifest error. If such amount is so made available, such payment
to the Administrative Agent shall constitute such Lender's Loan on the date
of borrowing for all purposes of this Agreement. If such amount is not
made available to the Administrative Agent on the next Business Day
following the date of such borrowing, the Administrative Agent shall notify
the Company of such failure to fund and, upon demand by the Administrative
Agent, the Company shall pay such amount to the Administrative Agent for
the Administrative Agent's account, together with interest thereon for each
day elapsed since the date of such borrowing, at a rate per annum equal to
the interest rate applicable at the time to the Loans comprising such
borrowing. If such Lender shall repay to the Administrative Agent such
corresponding amount, the amount so repaid shall constitute such Lender's
Percentage of the Loan made on such borrowing date for purposes of this
Agreement. The failure of any Lender to make its Percentage of any Loan
available shall not (without regard to whether the Company shall have
returned the amount thereof to the Administrative Agent in accordance with
this Section 5.2.1) relieve it or any other Lender of its obligation, if
any, hereunder to make its Percentage of such Loan available on such
borrowing date, but no Lender shall be responsible for the failure of any
other Lender to make its Percentage of such Loan available on the borrowing
date.
SECTION 5.2.2. DELEGATION OF AUTHORITY TO ADMINISTRATIVE AGENT.
Without limiting the generality of Section 10, each Lender expressly
authorizes the Administrative Agent to determine on behalf of such Lender
the creation or elimination of any reserves against the Revolving Loans.
Such authorization may be withdrawn by the Required Lenders by giving the
Administrative Agent written notice of such withdrawal signed by the
Required Lenders; provided, however, that unless otherwise agreed by the
Administrative Agent such withdrawal of authorization shall not become
effective until the thirtieth Business Day after receipt of such notice by
the Administrative Agent. Thereafter, the Required Lenders shall jointly
instruct the Administrative Agent in writing regarding such matters with
such frequency as the Required Lenders shall jointly determine. Unless and
until the Administrative Agent shall have received written notice from the
Required Lenders as to the existence of an Unmatured Event of Default, an
Event of Default or some other circumstance which would relieve the Lenders
of their respective obligations to make Loans hereunder, which notice shall
be in writing and shall be signed by the Required Lenders and shall
expressly state that the Required Lenders do not intend to make available
to the Administrative Agent such Lenders' ratable share of Loans made after
the effective date of such notice, the Administrative Agent shall be
entitled to continue to make the assumptions described in Section 5.2.1.
After receipt of the notice described in the preceding sentence, which
shall become effective on the third Business Day after receipt of such
notice by the Administrative Agent unless otherwise agreed by the
Administrative Agent, the Administrative Agent shall be entitled to make
the assumptions described in Section 5.2.2 as to any Loans as to which it
has not received a written notice to the contrary prior to 11:00 a.m.
(Chicago time) on the Business Day next preceding the day on which the Loan
is to be made. The Administrative Agent shall not be required to make any
Loan as to which it shall have received notice by a Lender of such Lender's
intention not to make its ratable portion of such Loan available to the
Administrative Agent. Any withdrawal of authorization under this Section
5.2.2 shall not affect the validity of any Loans made prior to the
effectiveness thereof.
SECTION 5.3 SHARING OF PAYMENTS. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application
of setoff or otherwise) on account of any Loan (other than pursuant to the
terms of Sections 3.10 and 3.11) in excess of its pro rata share of
payments then or therewith obtained by all Lenders, such Lender shall
purchase from the other Lenders such participations in their Notes as shall
be necessary to cause such purchasing Lender to share the excess payment or
other recovery ratably with each of them; provided, however, that if all or
any portion of the excess payment or other recovery is thereafter recovered
from such purchasing Lender, the purchase shall be rescinded and each
Lender which has sold a participation to the purchasing Lender shall repay
to the purchasing Lender the purchase price to the ratable extent of such
recovery together with an amount equal to such selling Lender's ratable
share (according to the proportion of
(a) the amount of such selling Lender's required repayment to the
purchasing Lender
to
(b) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Company agrees that any
Lender so purchasing a participation from another Lender pursuant to this
Section may, to the fullest extent permitted by law, exercise all its
rights of payment (including pursuant to Section 5.4) with respect to such
participation as fully as if such Lender were the direct creditor of the
Company in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured
claim in lieu of a setoff to which this Section applies, such Lender shall,
to the extent practicable, exercise its rights in respect of such secured
claim in a manner consistent with the rights of the Lenders entitled under
this Section to share in the benefits of any recovery on such secured
claim.
SECTION 5.4 SETOFF. Each Lender shall, upon the occurrence
of any Default described in Section 9.1.3 or any other Event of Default,
have the right to appropriate and apply to the payment of the Obligations
owing to it (whether or not then due), and (as security for such
Obligations) the Company hereby grants to each Lender a continuing security
interest in, any and all balances, credits, deposits, accounts or moneys of
the Company (other than accounts held in a fiduciary capacity) then or
thereafter maintained with such Lender; provided, however, that any such
appropriation and application shall be subject to the provisions of Section
5.3. Each Lender agrees promptly to notify the Company and the
Administrative Agent after any such setoff and application made by such
Lender; provided, however, that the failure to give such notice shall not
affect the validity of such setoff and application. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff under applicable law or otherwise) which
such Lender may have.
SECTION 5.5 USE OF PROCEEDS. The Company will apply the proceeds
of the Loans for working capital, acquisitions and general corporate
purposes in compliance with all applicable law including, but not limited
to, Regulation U of the Board of Governors of the Federal Reserve System.
SECTION 6. WARRANTIES. To induce the Lenders and the
Administrative Agent to enter into this Agreement and to make the Loans
hereunder, the Company represents and warrants unto the Administrative
Agent and each Lender, as of the date hereof, and as of the date of each
disbursement of each of the Loans, the following, which shall survive the
execution and delivery of this Agreement, the Notes and the Loan Documents
and until all of the Obligations have been paid, satisfied or discharged in
full, regardless of any investigation by the Administrative Agent or any
Lender of the Company's financial condition or assets:
SECTION 6.1 ORGANIZATION, ETC. The Company is a corporation duly
existing and in good standing under the laws of the State of Illinois; each
Subsidiary is a corporation duly existing and in good standing under the
laws of the state of its respective incorporation; the Company and each
Subsidiary is duly qualified and in good standing as a foreign corporation
authorized to do business in each jurisdiction where the failure to be so
qualified would have a Material Adverse Effect; and the Company has full
power and authority and holds all requisite governmental licenses, permits
and other approvals to own and hold its properties and to conduct its
business substantially as currently conducted by it.
SECTION 6.2 AUTHORIZATION; NO CONFLICT. The execution and
delivery of this Agreement, the borrowing hereunder, the execution and
delivery of the Notes, and the performance by the Company of its
obligations under this Agreement and the Notes, are within the Company's
corporate powers, have been duly authorized by all necessary corporate
action on the part of the Company, and do not and will not contravene or
conflict with any provision of law, governmental regulation or court decree
or order to which the Company is subject or of the charter or by-laws of
the Company or of any agreement binding upon the Company, or result in or
require the imposition of, a lien on any of the Company's or its
Subsidiaries' properties.
SECTION 6.3 VALIDITY AND BINDING NATURE. This Agreement is, and
the Notes when duly executed and delivered will be, legal, valid and
binding obligations of the Company enforceable against the Company in
accordance with their respective terms.
SECTION 6.4 FINANCIAL STATEMENTS. The Company's audited
consolidated financial statements as at December 31, 1998, and CTT's
unaudited financial statements as at December 31, 1998, copies of which
have been furnished to the Lenders, have been prepared in conformity with
generally accepted accounting principles applied on a basis consistent with
that of the preceding fiscal year (except as otherwise set forth therein
with respect to the discontinued operations of Alleghany Asset Management),
and present fairly the financial condition of the Company and its
Subsidiaries (or CTT as the case may be) as at December 31, 1998 and the
results of their operations for the fiscal year ended December 31, 1998.
Each of the Annual Statement Blanks for CTI, TT and Security Union as at
December 31, 1998, copies of which have been furnished to the Lenders, has
been prepared in conformity with applicable statutory accounting principles
applied on a basis consistent with that of the preceding fiscal year, and
presents fairly the financial condition of CTI, TT or Security Union, as
the case may be, as at such date and the results of their operations for
the period then ended.
SECTION 6.5 LITIGATION AND CONTINGENT LIABILITIES. Schedule 6.5
hereto sets forth a list, as of the date specified, of all pending
litigation, including, without limitation, title insurance claims and
claims arising under Environmental Laws, which, if adversely determined,
are likely to result in a judgment in any one case against the Company or
any Subsidiary of $100,000 or more over and above any applicable insurance
coverage. All pending litigation, including, without limitation, title
insurance claims and claims arising under Environmental Laws, which, if
adversely determined, is likely to result in a judgment in any one case
against the Company or any Subsidiary of less than $100,000 over and above
any applicable insurance coverage does not exceed (x) $100,000,000 for
Loans made until June 1, 2001 and (y) $150,000,000 for Loans made after
June 1, 2001until the Expiration Date). Except as set forth in such
Schedule, no litigation (including, without limitation, derivative
actions), arbitration proceedings or governmental proceedings are pending
or, to the best knowledge of the Company, threatened against the Company or
any Subsidiary which would, if adversely determined, have a Material
Adverse Effect. Other than any liability incident to such litigation or
proceedings and contingent liabilities of the Title Insurance Subsidiaries
incurred in the ordinary course of their business, neither the Company nor
its Subsidiaries have any contingent liabilities which would have a
Material Adverse Effect, which are not provided for or disclosed in the
financial statements referred to in Section 6.4.
SECTION 6.6 LIENS. None of the assets of the Company or any
Subsidiary is subject to any mortgage, pledge, title retention lien, or
other lien, encumbrance or security interest, except as permitted under
Section 7.12.
SECTION 6.7 SUBSIDIARIES. The Company has no Subsidiaries except
those listed in Schedule 6.7.
SECTION 6.8 INVESTMENT COMPANY ACT. The Company is not an
investment company or a company controlled by an investment company,
within the meaning of the Investment Company Act of 1940, as amended.
SECTION 6.9 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the
Company nor any Subsidiary is a holding company, or a subsidiary
company of a holding company, or an affiliate, of a holding company
or of a subsidiary company of a holding company, within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
SECTION 6.10 REGULATION U. The Company is not engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying margin stock
(within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System).
SECTION 6.11 OWNERSHIP OF PROPERTIES. The Company and each of its
Subsidiaries owns good and marketable title to all of its properties and
assets, real and personal, tangible and intangible, of any nature
whatsoever (including patents, trademarks, trade names, service marks and
copyrights), free and clear of all liens, charges or claims (including
infringement claims with respect to patents, trademarks, copyrights and the
like) except as permitted pursuant to Section 7.12. The Company and each
of its Subsidiaries is in compliance with all material requirements of law,
including Environmental Laws, and all terms and provisions of all contracts
and other instruments binding upon the Company or any of its properties or
other assets, the failure to comply with which would have a Material
Adverse Effect.
SECTION 6.12 TAXES. The Company and its Subsidiaries have filed
all tax returns and reports required by law to have been filed by it and
has paid all taxes and governmental charges thereby shown to be owing,
except any such taxes or charges which are being diligently contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with generally accepted accounting principles shall have been
set aside on its books.
SECTION 6.13 PENSION AND WELFARE PLANS. During the twelve-
consecutive-month period prior to the date of the execution and delivery of
this Agreement and prior to the date hereof, no steps have been taken to
terminate any plan, and no contribution failure has occurred with respect
to any Pension Plan sufficient to give rise to a lien in excess of
$10,000,000 under Section 302(f) of ERISA. No condition exists or event or
transaction has occurred with respect to any Pension Plan which might
result in the incurrence by the Company or any member of the Controlled
Group of any liability, fine or penalty in excess of $10,000,000. Except
as disclosed in Schedule 6.13, neither the Company nor any member of the
Controlled Group has any contingent liability with respect to any post-
retirement benefit under a Welfare Plan, other than liability for
continuation coverage described in Part 6 of Title I of ERISA.
SECTION 6.14 ACCURACY OF INFORMATION. All factual
information heretofore or contemporaneously furnished by or on behalf of
the Company in writing to the Administrative Agent or any Lender for
purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all other such factual information hereafter
furnished by or on behalf of the Company to the Administrative Agent or any
Lender will be, true and accurate in every material respect on the date as
of which such information is dated or certified and as of the date of
execution and delivery of this Agreement by the Administrative Agent and
such Lender, and such information is not, or shall not be, as the case may
be, incomplete by omitting to state any material fact necessary to make
such information not misleading.
SECTION 6.15 YEAR 2000. The Company and its Subsidiaries have
reviewed the areas within their business and operations which could be
adversely affected by, and have developed or are developing a program to
address on a timely basis, the Year 2000 Problem (that is, the risk that
computer applications used by the Company and its Subsidiaries may be
unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and any date on or after December 31, 1999), and
have made related appropriate inquiry of material suppliers and vendors.
Based on such review and program, the Company believes that the Year 2000
Problem will not have a Material Adverse Effect on the Company. From time
to time, at the request of the Bank, the Company and its subsidiaries shall
provide to the Bank such updated information or documentation as is
requested regarding the status of their efforts to address the Year 2000
Problem.
SECTION 6.16 SEC DOCUMENTS. Since June 17, 1998, the Company has
filed all reports, schedules, forms, statements and other documents
required to be filed by it with the Securities and Exchange Commission (the
SEC) (all of the foregoing being hereinafter referred to as the SEC
Documents). The Company has delivered to the Administrative Agent true
and complete copies of the SEC Documents. As of their respective dates,
the SEC Documents complied in all material respects with the requirements
of the Securities Act of 1933, as amended (the Securities Act), or the
Securities Exchange Act of 1934, as amended (the Exchange Act), as the
case may be, and the rules and regulations of the SEC promulgated
thereunder applicable to such SEC Documents, and none of the SEC Documents
(when read togther with all exhibits included therein and financial
statement schedules thereto and documents (other than exhibits)
incorporated by reference) contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
SECTION 7. COMPANY'S COVENANTS.
Until the expiration or termination of the Commitment and thereafter
until all Obligations of the Company hereunder have been satisfied and
discharged in full, the Company agrees that it will:
SECTION 7.1 REPORTS, CERTIFICATES AND OTHER INFORMATION. Furnish
to the Administrative Agent (with sufficient copies for the Lenders):
SECTION 7.1.1 COMPANY AUDIT REPORT. Within 90 days after each
fiscal year of the Company, a copy of an annual audit report of the Company
and its Subsidiaries prepared on a consolidated basis and in conformity
with generally accepted accounting principles applied on a basis consistent
(to the extent possible) with the audited consolidated financial statements
of the Company and its Subsidiaries as at December 31, 1998, duly certified
by independent certified public accountants of recognized standing selected
by the Company, together with (i) a certificate from such accountants
containing a computation (prepared either by such accountants or the
Company) of, and showing compliance with, each of the financial ratios and
restrictions contained in this Section 7 and to the effect that, in making
the examination necessary for the signing of such annual audit report by
such accountants, they have not become aware of any Event of Default or
Unmatured Event of Default that has occurred and is continuing, or if they
have become aware of any such event, describing it and the steps, if any,
being taken by the Company to cure it and (ii) a letter addressed to the
Company, the Administrative Agent and the Lenders from such accountants in
substantially the same form as Exhibit E.
SECTION 7.1.2 ANNUAL COMPANY UNAUDITED STATEMENTS. Within 90 days
after each fiscal year of the Company, a copy of its unaudited balance
sheet as at the end of such fiscal year and a statement of earnings for
such fiscal year, prepared on an unconsolidated basis and signed by a
proper accounting officer of the Company.
SECTION 7.1.3 COMPANY INTERIM REPORTS. Within 60 days after each
quarter (except the last quarter) of each fiscal year of the Company, a
copy of unaudited financial statements of the Company and its Subsidiaries
prepared in the same manner as the audit report referred to in Section
7.1.1, subject to normal recurring year-end adjustments, signed by a proper
accounting officer of the Company and consisting of at least a balance
sheet as at the close of such quarter and statements of earnings and
statement of cash flows for the period from the beginning of such fiscal
year to the close of such quarter; provided, however, that such unaudited
financial statements need not be more detailed than what would be required
for a quarterly report to the Securities and Exchange Commission on Form
10-Q.
SECTION 7.1.4 CERTIFICATES. Contemporaneously with the furnishing
of a copy of each annual Company audit report and of each set of quarterly
Company statements provided for in this Section 7.1, a certificate dated
the date of such annual report or such set of quarterly statements and
signed by the President, the Chief Financial Officer or the Treasurer of
the Company, to the effect that no Event of Default, or Unmatured Event of
Default, has occurred and is continuing, or, if there is any such an event,
describing it and the steps, if any, being taken to cure it and containing
(except in the case of the certificate dated the date of such annual
report) a computation of, and showing compliance with, each of the
financial ratios and restrictions contained in this Section 7 and a
statement of the maximum amount of any Investment Borrowings during such
quarter and that the security therefor consisted of Approved Investments.
SECTION 7.1.5 ANNUAL STATEMENT BLANKS. Within 90 days after each
fiscal year of each Title Insurance Subsidiary, a copy of its Annual
Statement Blank filed with its applicable State regulatory commission for
such fiscal year and prepared in accordance with applicable statutory
accounting requirements from time to time in effect.
SECTION 7.1.6 QUARTERLY STATEMENT BLANKS. Within 60 days
after each quarter (except the last quarter) of each fiscal quarter of each
Title Insurance Subsidiary, a copy of its Quarterly Statement Blank filed
with its applicable State regulatory commission for such fiscal quarter and
prepared in accordance with applicable statutory accounting requirements
from time to time in effect.
SECTION 7.1.7 NOTICE OF DEFAULT AND LITIGATION. Forthwith upon
learning of the occurrence of any of the following, written notice thereof,
describing the same and the steps being taken by the Company or the
Subsidiary affected with respect thereto: (i) the occurrence of an Event of
Default or an Unmatured Event of Default, or (ii) the institution of, or
any adverse determination in, any litigation, arbitration proceeding or
governmental proceeding which would have, or has, a Material Adverse
Effect.
SECTION 7.1.8 SEC REPORTS. Within ten Business Days after the due
date for filing with the Securities and Exchange Commission (SEC), all
filings with the SEC including but not limited to those on Forms 10-K, 10-Q
and 8-K.
SECTION 7.1.9 SUBSIDIARIES. Contemporaneously with the furnishing
of a copy of each annual audit report of the Company pursuant to Section
7.1.1, a written report of any changes in the list of Subsidiaries.
SECTION 7.1.10 ERISA. Immediately upon becoming aware of the
institution of any steps by the Company or any other Person to terminate
any Pension Plan, or the failure to make a required contribution to any
Pension Plan if such failure is sufficient to give rise to a lien under
Section 302(f) of ERISA, or the taking of any action with respect to a
Pension Plan which could result in the requirement that the Company furnish
a bond or other security to the PBGC or such Pension Plan, which could
result in the incurrence by the Company of any material liability, fine or
penalty, or any material increase in the contingent liability Welfare Plan
benefit, notice thereof and copies of all documentation relating thereto.
SECTION 7.1.10 ADDITIONAL INFORMATION. Such other information
respecting the conditions or operations, financial or otherwise, of the
Company or any of its Subsidiaries as any Lender through the Administrative
Agent may from time to time reasonably request.
SECTION 7.2 BOOKS, RECORDS AND INSPECTIONS. Maintain, and cause
each Subsidiary to maintain, complete and accurate books and records;
permit, and cause each Subsidiary to permit, access by the Administrative
Agent and each Lender to the books and records of the Company and of any
Subsidiary; provided, however, that such access shall not unreasonably
interfere with the normal business operations of the Company or such
Subsidiary.
SECTION 7.3 INSURANCE. Maintain, and cause each Subsidiary to
maintain, such insurance as may be required by law and such other
insurance, to such extent as is reasonably available (as determined by the
Company) and against such hazards and liabilities, as is customarily
maintained by companies similarly situated; provided, however, that, in
lieu of or supplemental to any insurance referred to in this Section 7.3,
the Company may adopt such other plan or method of protection in respect of
its properties or other risks, whether by establishment of an insurance
fund or reserve or by otherwise conforming to the practices of similar
companies maintaining systems of self-insurance, as may be determined by
the Company in its reasonable business judgment.
SECTION 7.4 TAXES. Pay, and cause each Subsidiary to pay, when
due all taxes, assessments, and other governmental charges or levies
imposed upon it, as well as all lawful claims for labor, materials, and
supplies or otherwise which, if unpaid, might give rise to liens or charges
upon its property, except as contested in good faith and by appropriate
proceedings and for which adequate reserves in accordance with generally
accepted accounting principles shall have been set aside on its books.
SECTION 7.5 CONSOLIDATED NET WORTH. Not permit Consolidated Net
Worth at the close of any fiscal quarter to be less than $275,000,000.
SECTION 7.6 STATUTORY SURPLUS. Not permit Statutory Surplus of
the Title Insurance Subsidiaries on a combined basis at the close of any
fiscal quarter to be less than $185,000,000.
SECTION 7.7 INTEREST EXPENSE COVERAGE RATIO. Not permit the
ratio during any period of six consecutive fiscal quarters of Earnings
Before Interest and Taxes to Interest Expense to be less than 2.5 to 1.0.
SECTION 7.8 LIQUIDITY. Not permit Cash and Marketable Securities
of the Title Insurance Subsidiaries on a combined basis at the close of any
fiscal quarter plus Cash and Marketable Securities of the Company on an
unconsolidated basis at the close of any fiscal quarter to be less than the
Statutory Premium Reserve of the Title Insurance Subsidiaries on a combined
basis plus the next twelve months of Debt Service.
SECTION 7.9 LOSS RESERVE RATIO. Not permit the ratio as at the
close of any fiscal quarter of Loss Reserves of the Title Insurance
Subsidiaries to their Statutory Surplus on a combined basis to be greater
than 0.9 to 1.0.
SECTION 7.10 RESTRICTED PAYMENTS. Not purchase or redeem any
shares of the capital stock of the Company, declare or pay any dividends
thereon (other than stock dividends), make any distribution to stockholders
or set aside any funds for any such purpose, or make any loans or advances
to Affiliates which are not Subsidiaries of the Company (all of which
purchases, redemptions, declarations, payments, distributions or loans and
advances hereinabove referred to being collectively called Restricted
Payments); provided, however, that so long as no Event of Default, or
Unmatured Event of Default, has occurred and is continuing (or would occur
as the result of a Restricted Payment hereinbelow permitted), the Company
may (i) make Restricted Payments to its parent corporation or purchase debt
instruments of Affiliates which are not Subsidiaries of the Company from
time to time provided that the Company's Consolidated Net Worth would not
be reduced thereby below $275,000,000 and (ii) make Restricted Payments to
its parent corporation of an amount which represents the income taxes that
would have been payable by the Company and the Subsidiaries of the Company
forming part of the affiliated group for income tax purposes if the Company
had not filed consolidated income tax returns as part of an affiliated
group with CTC.
SECTION 7.11 INDEBTEDNESS. Not, and not permit any Subsidiary to,
incur or permit to exist any indebtedness for borrowed money, or for the
deferred purchase price of any property, or for the deferred purchase price
of any services the obligations for which would be reflected on an audited
consolidated balance sheet of the Company and its Subsidiaries (or which
contract would be reflected in the footnotes thereto, but excluding all
leases accounted for as operating leases) prepared in accordance with
generally accepted accounting principles, or under capitalized leases,
except (i) the Notes, (ii) short term indebtedness of the Company and its
Subsidiaries (but excluding (a) bank debt of CTT, or (b) debt of CTT
incurred pursuant to a public or private offering under the Securities Act
of 1933, as amended) in an aggregate amount not in excess of $50,000,000
for working capital purposes, provided that no such indebtedness referred
to in this clause (ii) shall be outstanding for a period of at least 2
consecutive months in each fiscal year, (iii) indebtedness of Subsidiaries
to the Company and to other Subsidiaries and of the Company to
Subsidiaries, (iv) current accounts payable arising in the ordinary course
of business, (v) Investment Borrowings, (vi) other Long- Term Indebtedness
of the Company and any Subsidiary (but excluding (a) bank debt of CTT, or
(b) debt of CTT incurred pursuant to a public or private offering under the
Securities Act of 1933, as amended) to the extent permitted by Section
7.15; provided, however, any such Long-Term Indebtedness of any Subsidiary
shall not exceed an aggregate amount of $35,000,000, (vii) indebtedness
incurred by Subsidiaries engaged in the title insurance business in the
ordinary course of business in aid of recoupment or reduction or settlement
of title claims and losses, provided that the principal amount of all such
indebtedness outstanding plus the then remaining Loss Reserves, if all
treated as Loss Reserves, would not result in a violation of Section 7.9,
(viii) Capitalized Lease Obligations of the Company and its Subsidiaries
which at any one time in the aggregate do not exceed an amount equal to (x)
$30,000,000, minus (y) the aggregate outstanding principal amount of
indebtedness in connection with which liens permitted by Section 7.12(i)
exist, (ix) other indebtedness outstanding on the date hereof and listed in
Schedule 7.11 or hereafter incurred in connection with liens permitted by
Section 7.12, and (x) indebtedness incurred by the Company in connection
with any sale and leaseback involving only Scheduled Properties or any
indebtedness secured only by a lien on Scheduled Properties, to the extent
such lease or other indebtedness is either non-recourse to the Company or
the present value of such lease payments or the principal amount of such
indebtedness, as the case may be does not exceed 75% of the appraised value
of such Scheduled Properties.
SECTION 7.12 LIENS. Not, and not permit any Subsidiary to, create
or permit to exist any mortgage, pledge, title retention lien, or other
lien, encumbrance or security interest with respect to any assets now owned
or hereafter acquired, except (i) in connection with the acquisition of
real or personal property after the date hereof, and attaching only to the
real or personal property being acquired, if the indebtedness of the
Company and all Subsidiaries secured thereby does not exceed in the
aggregate at any one time outstanding an amount equal to (x) $30,000,000,
minus (y) the then aggregate amount of Capitalized Lease Obligations
permitted by Section 7.11(viii); (ii) for current taxes, assessments and
governmental charges or levies not delinquent or being contested in good
faith and by appropriate proceedings for which adequate reserves have been
made; (iii) liens incurred or pledges or deposits made in connection with
worker's compensation, unemployment insurance, old-age pensions, social
security and public liability and similar legislation; (iv) liens, pledges
or deposits to secure the performance of bids, tenders, leases, contracts
(other than for the repayment of borrowed money), statutory and regulatory
obligations, surety and appeal bonds and other obligations of like nature,
incurred as an incident to the ordinary course of business; (v) statutory
liens of landlords and other liens imposed by law, such as carriers',
warehousemen's, mechanics', materialmen's and vendors' liens, incurred in
good faith in the ordinary course of business; (vi) liens arising in the
ordinary course of business for sums not due or sums being contested in
good faith and by appropriate proceedings and not involving any deposits or
advances or borrowed money or the deferred purchase price of property or
services; (vii) liens granted by any Subsidiary to secure indebtedness of
such Subsidiary to the Company or to any other Subsidiary or liens granted
by the Company to secure indebtedness of the Company to any Subsidiary;
(viii) liens in connection with Investment Borrowings; (ix) liens existing
or incurred on claims acquired property in the ordinary course of business
of Subsidiaries engaged in the title insurance business, (x) any other
liens securing indebtedness or obligations which in the aggregate do not
exceed $10,000,000; (xi) liens existing on the date hereof and disclosed on
Schedule 6.6 or in the financial statements delivered pursuant to Section
6.4 and (xii) liens granted in connection with indebtedness permitted under
Section 7.11(x).
SECTION 7.13 MERGERS, CONSOLIDATIONS, PURCHASES. Not, and not
permit any Subsidiary to, be a party to any merger or consolidation, or
purchase or otherwise acquire all or substantially all of the assets or
stock of any class of, or any partnership or joint venture interest in, any
other person or entity, except for (i) any such merger or consolidation by
any wholly-owned Subsidiary into the Company or into, with or to any other
wholly-owned Subsidiary and any such purchase or other acquisition by the
Company or any wholly-owned Subsidiary of the assets or stock of any
wholly-owned Subsidiary and (ii) any such merger, consolidation, purchase,
or other acquisition of assets or stock by the Company or any Subsidiary if
(x) in the case of a merger or consolidation involving the Company, the
surviving corporation shall be the Company, (y) as of the date of the
execution of the agreement providing for such merger, consolidation,
purchase, or other acquisition, the fair value of the consideration to be
paid in connection therewith shall not exceed $60,000,000, and (z) no Event
of Default or Unmatured Event of Default shall have occurred and be
continuing at the time of such merger, consolidation, purchase, or other
acquisition, or shall occur as a result of such merger, consolidation,
purchase, or other acquisition. For the purposes of this Section 7.13, the
consideration to be paid in connection with any merger, consolidation,
purchase, or other acquisition shall be valued in accordance with generally
accepted accounting principles.
SECTION 7.14 ASSET DISPOSITIONS. Not, and not permit any
Subsidiary to sell, transfer, convey or lease all or any substantial part
of its assets except in the ordinary course of business; provided, however,
there shall be excluded from the restrictions of this Section 7.14 (i)
sales or other dispositions of the stock or assets of the Company or a
Subsidiary required by governmental or regulatory authorities; (ii) Net
Asset Sales in an amount not exceeding 10% of Adjusted Total Assets in each
fiscal year; (iii) sales or other dispositions of Unrestricted Assets; and
(iv) sales or other dispositions of assets by a Subsidiary to the Company
or another Subsidiary, or by the Company to a Subsidiary. For purposes of
this Section 7.14, sales of Scheduled Properties shall be included in
computing Net Asset Sales but the Company shall not be in default hereunder
if Net Asset Sales exceed the amount permitted by Section 7.14(ii) solely
as a result of such inclusion.
SECTION 7.15 LEVERAGE RATIO. Not permit the Leverage Ratio as at
the close of any fiscal quarter to be greater than 0.45 to 1.0.
SECTION 7.16 EXISTING BUSINESS. Carry on, and cause each
Subsidiary to carry on, its title insurance, escrow, trust company and/or
other real estate related services, business, or businesses in
substantially the same manner as presently being conducted.
SECTION 7.17 OTHER AGREEMENTS. Not enter into any agreement
containing any material provision which would be violated or breached in a
material way by the performance of its obligations hereunder or under any
instrument or document delivered or to be delivered by it hereunder or in
connection herewith.
SECTION 8. CONDITIONS OF LENDING.
Notwithstanding any other provisions of this Agreement, the Lenders,
at their sole option and in their sole discretion, need not make any Loans
available to the Company unless the conditions precedent described below
are fulfilled:
SECTION 8.1 DOCUMENTS. The obligation of each Lender to make its
Loan is, in addition to the conditions precedent specified in Section 8.2,
subject to the condition precedent that the Administrative Agent shall have
received all of the following, each duly executed and dated as of the date
hereof, in form and substance satisfactory to the Administrative Agent:
SECTION 8.1.1 NOTES. The Administrative Agent shall have received,
for the account of each Lender, its Note duly executed and delivered by the
Company.
SECTION 8.1.2 CORPORATE DOCUMENTS. Certified copies of the
articles of incorporation and bylaws of the Company and certified copies of
resolutions of the Board of Directors of the Company authorizing the
execution, delivery and performance, respectively, of this Agreement, the
Notes, and other documents provided for in this Agreement.
SECTION 8.1.3 INCUMBENCY AND SIGNATURES. A certificate of the
Secretary or an Assistant Secretary of the Company certifying the names of
the officer or officers of the Company authorized to sign this Agreement
and the Notes and other documents provided for in this Agreement, together
with a sample of the true signature of each such officer.
SECTION 8.1.4 CONFIRMATORY CERTIFICATE. A certificate signed by
the President, the Chief Financial Officer or the Treasurer of the Company
as to the matters set out in Section 8.2 .
SECTION 8.1.5 GOOD STANDING. Certificate of the Secretary of State
of Illinois as to the good standing of the Company.
SECTION 8.1.6 INSTRUCTIONS. Written instructions from the Company
to the Administrative Agent directing the distribution of the proceeds of
the initial Revolving Loans made pursuant to this Agreement.
SECTION 8.1.7 OTHER. Such other documents as the Administrative
Agent or any Lender may reasonably request.
SECTION 8.2 FURTHER CONDITIONS. The obligation of each Lender to
make its Loan is subject to the following further conditions precedent:
(a) no Event of Default, or Unmatured Event of Default, has occurred and is
continuing or will result from the making of the Loans, (b) the warranties
of the Company contained in Section 6 are true and correct as of each
borrowing of a Loan hereunder, with the same effect as though made on the
Loan Date, (except for the warranties made as of a specific date, which
were true and correct as of such date), (c) all governmental approvals and
court orders that are necessary for the Company to consummate the
transactions contemplated by this Agreement and the Notes and to perform
its obligations thereunder have been received, (d) after giving effect to
the Loans, the aggregate principal amount of all such Loans shall not
exceed the Commitment, (e) such loan shall not violate any order, judgment
or decree of any court or other authority or any provision of law
applicable to the Administrative Agent or the Lenders, as then in effect,
and (f) the Administrative Agent shall have received the Notes, the
Borrowing Notice and the fees as required hereunder.
SECTION 9. EVENTS OF DEFAULT AND THEIR EFFECT.
SECTION 9.1 EVENTS OF DEFAULT. Each of the following shall
constitute an Event of Default under this Agreement:
SECTION 9.1.1 NON-PAYMENT OF NOTES, ETC. Default, and the
continuance thereof for one day, in the payment when due of any principal
of the Notes or default, and continuance thereof for five days, in the
payment when due of any interest on the Notes or any fees payable or
amounts due by the Company hereunder.
SECTION 9.1.2 NON-PAYMENT OF OTHER INDEBTEDNESS. Default in the
payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any other indebtedness for borrowed money or
the deferred purchase price of property of, or guaranteed by, the Company
or any Subsidiary (except any such indebtedness of any Subsidiary to the
Company or to any other Subsidiary) in excess of $10,000,000 or default in
the performance or observance of any obligation or condition with respect
to any such other indebtedness in excess of $10,000,000 if the effect of
such default is to accelerate the maturity of any such indebtedness or to
permit the holder or holders thereof, or any trustee or agent for such
holders, to cause such indebtedness to become due and payable prior to its
expressed maturity, and such default shall not have been remedied or
discharged within any applicable grace period.
SECTION 9.1.3 BANKRUPTCY, INSOLVENCY, ETC. The Company or any
Subsidiary admits in writing its inability to pay debts as they become due;
or the Company or any Subsidiary applies for, consents to, or acquiesces in
the appointment of, a trustee, receiver or other custodian for the Company
or such Subsidiary or any property thereof, or makes a general assignment
for the benefit of creditors; or, in the absence of such application,
consent or acquiescence, a trustee, receiver or other custodian is
appointed for the Company or any Subsidiary or for a substantial part of
the property of any thereof and is not discharged within 60 days; or any
bankruptcy, reorganization, debt arrangement, or other case or proceeding
under any bankruptcy or insolvency law, or any dissolution or liquidation
proceeding (except the voluntary dissolution, not under any bankruptcy or
insolvency law, of a Subsidiary other than a Title Insurance Subsidiary),
is commenced in respect of the Company or any Subsidiary, and if such case
or proceeding is not commenced by the Company or such Subsidiary, it is
consented to or acquiesced in by the Company or such Subsidiary or remains
for 60 days undismissed; or the Company or any Subsidiary takes any
corporate action to authorize, or in furtherance of, any of the foregoing.
SECTION 9.1.4 NON-COMPLIANCE WITH THIS AGREEMENT. Failure by the
Company to comply with or to perform any provision of this Agreement (and
not constituting an Event of Default under any of the preceding provisions
of this Section 9) and continuance of such failure for 30 days after notice
thereof to the Company from the Administrative Agent, or from any Lender.
SECTION 9.1.5 WARRANTIES. Any warranty made by the Company herein
is breached or is false or misleading in any material respect, or any
schedule, certificate, financial statement, report, notice, or other
writing furnished by the Company to the Administrative Agent or the Lenders
is false or misleading in any material respect, in each case on the date as
of which the facts therein set forth are stated or certified.
SECTION 9.1.6 CHANGE OF CONTROL. CTC, or a Subsidiary of CTC,
shall not own, directly or indirectly, 100% of the issued and outstanding
voting capital stock of the CTT.
SECTION 9.1.7 JUDGMENTS. Any judgment or order for the payment of
money in excess of $10,000,000 shall be rendered against the Company or any
of its Subsidiaries and either
(a) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order; or
(b) there shall be any period of 30 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect.
SECTION 9.1.8 PENSION PLANS. Any of the following events shall
occur with respect to any Pension Plan
(a) the institution of any steps by the Company, any member of its
Controlled Group or any other Person to terminate a Pension Plan if, as a
result of such termination, the Company or any such member could be
required to make a contribution to such Pension Plan, or could reasonably
expect to incur a liability or obligation to such Pension Plan, in excess
of $10,000,000; or
(b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a lien in excess of $ 10,000,000 under Section
302(f) of ERISA.
SECTION 9.2 EFFECT OF EVENT OF DEFAULT. If any Event of Default
described in Section 9.1.3 shall occur, the Notes shall become immediately
due and payable, all without notice of any kind; and in the case of any
other Event of Default, the Administrative Agent, upon the direction of the
Required Lenders, shall by written notice to the Company, declare the Notes
to be due and payable, whereupon the Notes shall become immediately due and
payable, all without any other notice of any kind.
SECTION 10. THE ADMINISTRATIVE AGENT
SECTION 10.1 ACTIONS. Each Lender hereby appoints LaSalle as its
Administrative Agent under and for purposes of this Agreement, the Notes
and each other Loan Document. Each Lender authorizes the Administrative
Agent to act on behalf of such Lender under this Agreement, the Notes and
each other Loan Document and, in the absence of other written instructions
from the Required Lenders received from time to time by the Administrative
Agent (with respect to which the Administrative Agent agrees that it will
comply, except as otherwise provided in this Section or as otherwise
advised by counsel), to exercise such powers hereunder and thereunder as
are specifically delegated to or required of the Administrative Agent by
the terms hereof and thereof, together with such powers as may be
reasonably incidental thereto. Each Lender hereby indemnifies (which
indemnity shall survive any termination of this Agreement) the
Administrative Agent, pro rata according to such Lender's Percentage, from
and against any and all liabilities, obligations, losses, damages, claims,
costs or expenses of any kind or nature whatsoever which may at any time be
imposed on, incurred by, or asserted against, the Administrative Agent in
any way relating to or arising out of this Agreement, the Notes and any
other Loan Document, including reasonable attorneys' fees, and as to which
the Administrative Agent is not reimbursed by the Company; provided,
however, that no Lender shall be liable for the payment of any portion of
such liabilities, obligations, losses, damages, claims, costs or expenses
which are determined by a court of competent jurisdiction in a final
proceeding to have resulted solely from the Administrative Agent's gross
negligence or wilful misconduct. The Administrative Agent shall not be
required to take any action hereunder, under the Notes or under any other
Loan Document, or to prosecute or defend any suit in respect of this
Agreement, the Notes or any other Loan Document, unless it is indemnified
hereunder to its satisfaction. If any indemnity in favor of the
Administrative Agent shall be or become, in the Administrative Agent's
determination, inadequate, the Administrative Agent may call for additional
indemnification from the Lenders and cease to do the acts indemnified
against hereunder until such additional indemnity is given.
SECTION 10.2 EXCULPATION. Neither the Administrative Agent nor
any of its directors, officers, employees or agents shall be liable to any
Lender for any action taken or omitted to be taken by it under this
Agreement or any other Loan Document, or in connection herewith or
therewith, except for its own wilful misconduct or gross negligence, nor
responsible for any recitals or warranties herein or therein, nor for the
effectiveness, enforceability, validity or due execution of this Agreement
or any other Loan Document, nor to make any inquiry respecting the
performance by the Company of its obligations hereunder or under any other
Loan Document. Any such inquiry which may be made by the Administrative
Agent shall not obligate it to make any further inquiry or to take any
action. The Administrative Agent shall be entitled to rely upon advice of
counsel concerning legal matters and upon any notice, consent, certificate,
statement or writing which the Administrative Agent believes to be genuine
and to have been presented by a proper Person.
SECTION 10.3 SUCCESSOR. The Administrative Agent may resign as
such at any time upon at least 30 days' prior notice to the Company and all
Lenders. If the Administrative Agent at any time shall resign, the
Required Lenders may appoint another Lender as a successor Administrative
Agent which shall thereupon become the Administrative Agent hereunder. If
no successor Administrative Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving notice of resignation,
then the retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent, which shall be one of the Lenders
or, with the approval of the Company (such approval not to be unreasonably
withheld), a commercial banking institution organized under the laws of the
U.S. (or any State thereof) or a U.S. branch or agency of a commercial
banking institution, and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall be entitled to receive from the retiring
Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under this Agreement.
After any retiring Administrative Agent's resignation hereunder as the
Administrative Agent, the provisions of
(a) this Section 10 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Administrative Agent
under this Agreement; and
(b) Section 10.2 and Section 10.3 shall continue to inure to its
benefit.
SECTION 10.4 LOANS BY LASALLE. LaSalle shall have the same rights
and powers with respect to (x) the Loans made by it or any of its
Affiliates, and (y) the Notes held by it or any of its Affiliates as any
other Lender and may exercise the same as if it were not the Administrative
Agent. LaSalle and its Affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with the Company or any
Subsidiary or Affiliate of the Company as if LaSalle were not the
Administrative Agent hereunder.
SECTION 10.5 CREDIT DECISIONS. Each Lender acknowledges that it
has, independently of the Administrative Agent and each other Lender, and
based on such Lender's review of the financial information of the Company,
this Agreement, the other Loan Documents (the terms and provisions of which
being satisfactory to such Lender) and such other documents, information
and investigations as such Lender has deemed appropriate, made its own
credit decision to extend its Commitment. Each Lender also acknowledges
that it will, independently of the Administrative Agent and each other
Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights
and privileges available to it under this Agreement or any other Loan
Document.
SECTION 10.6 COPIES, ETC.. The Administrative Agent shall give
prompt notice to each Lender of each notice or request required or
permitted to be given to the Administrative Agent by the Company pursuant
to the terms of this Agreement (unless concurrently delivered to the
Lenders by the Company). The Administrative Agent will distribute to each
Lender each document or instrument received for its account and copies of
all other communications received by the Administrative Agent from the
Company for distribution to the Lenders by the Administrative Agent in
accordance with the terms of this Agreement.
SECTION 11. MISCELLANEOUS PROVISIONS
SECTION 11.1 WAIVERS, AMENDMENTS, ETC.. The provisions of
this Agreement and of each other Loan Document may from time to time be
amended, modified or waived, if such amendment, modification or waiver is
in writing and consented to by the Company and the Required Lenders;
provided, however, that no such amendment, modification or waiver which
would:
(a) modify any requirement hereunder that any particular action be
taken by all the Lenders or by the Required Lenders shall be effective
unless consented to by each Lender;
(b) modify this Section 11.1, change the definition of Required
Lenders, increase the Commitment Amount or the Percentage of any Lender or
reduce the Facility Fee in Section 4.3 shall be made without the consent of
each Lender and each holder of a Note;
(c) extend the due date for, or reduce the amount of, any scheduled
repayment or prepayment of principal of or interest on the Notes (or reduce
the principal amount of or rate of interest on the Notes) shall be made
without the consent of the holder of that Note; or
(d) affect adversely the interests, rights or obligations of the
Administrative Agent qua the Administrative Agent shall be made without the
consent of the Administrative Agent.
No failure or delay on the part of the Administrative Agent, any Lender or
the holder of any Note in exercising any power or right under this
Agreement or any other Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power or right preclude
any other or further exercise thereof or the exercise of any other power or
right. No notice to or demand on the Company in any case shall entitle it
to any notice or demand in similar or other circumstances. No waiver or
approval by the Administrative Agent, any Lender or the holder of any Note
under this Agreement or any other Loan Document shall, except as may be
otherwise stated in such waiver or approval, be applicable to subsequent
transactions. No waiver or approval hereunder shall require any similar or
dissimilar waiver or approval thereafter to be granted hereunder.
SECTION 11.2 NOTICES. All notices and other communications
provided to any party hereto under this Agreement or any other Loan
Document shall be in writing or by Telex or by facsimile and addressed,
delivered or transmitted to such party at its address, Telex or facsimile
number set forth below its signature hereto or set forth in the Lender
Assignment Agreement or at such other address, Telex or facsimile number as
may be designated by such party in a notice to the other parties. Any
notice, if mailed and properly addressed with postage prepaid or if
properly addressed and sent by pre-paid courier service, shall be deemed
given when received; any notice, if transmitted by Telex or facsimile,
shall be deemed given when transmitted (answerback confirmed in the case of
Telexes).
SECTION 11.3 COSTS, EXPENSES AND TAXES. The Company agrees to pay
on demand all out-of-pocket costs and expenses of the Administrative Agent
(including the reasonable fees and out-of-pocket expenses of Lord, Bissell
& Brook, counsel for the Administrative Agent and of local counsel, if any,
who may be retained by said counsel) in connection with the preparation,
execution, delivery, administration, syndication and marketing of this
Agreement, the Notes and all other instruments or documents provided for
herein or delivered or to be delivered hereunder or in connection herewith,
in the case of the foregoing subject to limitations previously agreed by
the Company and the Administrative Agent, and all out-of-pocket costs and
expenses (including reasonable attorneys' fees and legal expenses) incurred
by the Administrative Agent in connection with the enforcement of this
Agreement, the Notes, any such other instruments or documents or any
collateral security. In addition, the Company agrees to pay, and to save
the Administrative Agent and the Lenders harmless from all liability for,
any stamp or other taxes (excluding franchise taxes and taxes imposed on or
measured by any Lender's net income or receipts) which may be payable in
connection with the execution or delivery of this Agreement, the borrowing
hereunder, or the issuance of the Notes or of any other instruments or
documents provided for herein or delivered or to be delivered hereunder or
in connection herewith. The Company also agrees to reimburse the
Administrative Agent and each Lender upon demand for all reasonable out-of-
pocket expenses (including attorneys' fees and legal expenses including the
allocated time charges of each Lender's legal departments, as their
respective internal counsel) incurred by the Administrative Agent or such
Lender in connection with (x) the negotiation of any restructuring or
work-out, whether or not consummated, of any Obligations and (y) the
enforcement of any Obligations.
SECTION 11.4 INDEMNIFICATION. In consideration of the execution
and delivery of this Agreement by each Lender and the extension of the
Commitments, the Company hereby indemnifies, exonerates and holds the
Administrative Agent and each Lender and each of their respective officers,
directors, employees and agents (collectively, the Indemnified Parties)
free and harmless from and against any and all actions, causes of action,
suits, losses, costs, liabilities and damages, and expenses incurred in
connection therewith (irrespective of whether any such Indemnified Party is
a party to the action for which indemnification hereunder is sought),
including reasonable attorneys' fees and disbursements (collectively, the
Indemnified Liabilities), incurred by the Indemnified Parties or any of
them as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of the Loans; or
(b) the entering into and performance of this Agreement and any
other Loan Document by any of the Indemnified Parties (including any action
brought by or on behalf of the Company as the result of any determination
by the Required Lenders pursuant to Section 8 not to fund the Loans);
except for (i) any such Indemnified Liabilities arising for the account of
a particular Indemnified Party by reason of the relevant Indemnified
Party's gross negligence or wilful misconduct or (ii) any such Indemnified
Liabilities resulting from claims by the Administrative Agent or any Lender
against any other Lender or any Lender against the Administrative Agent
that are not attributable to the Company's actions and for which the
Company otherwise has no liability. If and to the extent that the
foregoing undertaking may be unenforceable for any reason, the Company
hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible
under applicable law. Each Indemnified Party agrees to notify the Company
of any event which could give rise to any Indemnified Liabilities and to
consult with the Company to determine the best defense with respect to the
same.
SECTION 11.5 SURVIVAL. The obligations of the Company
under Sections 3.10, 3.11, 5.1, 11.3 and 11.4, and the obligations of the
Lenders under Section 11.1, shall in each case survive any termination of
this Agreement, the payment in full of all Obligations and the termination
of all Commitments. The representations and warranties made by the Company
in this Agreement and in each other Loan Document shall survive the
execution and delivery of this Agreement and each such other Loan Document.
SECTION 11.6 SEVERABILITY. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such provision and such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or such Loan
Document or affecting the validity or enforceability of such provision in
any other jurisdiction.
SECTION 11.7 CAPTIONS. Section captions used in this Agreement
are for convenience only, and shall not affect the construction of this
Agreement.
SECTION 11.8 EXECUTION IN COUNTERPARTS, EFFECTIVENESS, ETC. This
Agreement may be executed by the parties hereto in several counterparts,
each of which shall be deemed to be an original and all of which shall
constitute together but one and the same agreement. This Agreement shall
become effective when counterparts hereof executed on behalf of the Company
and each Lender (or notice thereof satisfactory to the Administrative
Agent) shall have been received by the Administrative Agent and notice
thereof shall have been given by the Administrative Agent to the Company
and each Lender.
SECTION 11.9 GOVERNING LAW. THIS AGREEMENT AND THE NOTES SHALL
EACH BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF ILLINOIS. All obligations of the Company and the rights of the
Administrative Agent and any Lender expressed herein or in the Notes shall
be in addition to and not in limitation of those provided by applicable
law. This Agreement, the Notes and the other Loan Documents constitute the
entire understanding among the parties hereto with respect to the subject
matter hereof and supersede any prior agreements, written or oral, with
respect thereto.
SECTION 11.10 SUCCESSORS AND ASSIGNS. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns; provided, however, that:
(a) the Company may not assign or transfer its rights
or obligations hereunder without the prior written consent of the
Administrative Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders are
subject to Section 11.11.
SECTION 11.11 SALE AND TRANSFER OF NOTES; PARTICIPATIONS IN NOTES.
Each Lender may assign, or sell participations in, its Note and Commitment
to one or more other Persons in accordance with this Section 11.11.
SECTION 11.11.1 ASSIGNMENTS. Any Lender,
(a) with the written consents of the Company and the Administrative
Agent (which consents shall not be unreasonably delayed or withheld and
which consent, in the case of the Company, shall be deemed to have been
given in the absence of a written notice delivered by the Company to the
Administrative Agent, on or before the tenth Business Day after receipt by
the Company of such Lender's request for consent, stating, in reasonable
detail, the reasons why the Company proposes to withhold such consent) may
at any time assign and delegate to one or more commercial banks or other
financial institutions, and
(b) with notice to the Company and the Administrative Agent, but
without the consent of the Company or the Administrative Agent, may assign
and delegate to any of its Affiliates or to any other Lender (each Person
described in either of the foregoing clauses as being the Person to whom
such assignment and delegation is to be made, being hereinafter referred to
as an Assignee Lender), all or any fraction of such Lender's Note and
Commitment (which assignment and delegation shall be of a constant, and not
a varying, percentage of all the assigning Lender's Note and Commitment) in
a minimum aggregate amount of $4,000,000; provided, however, that any such
Assignee Lender will comply, if applicable, with the provisions contained
in the penultimate sentence of Section 5.1 and further, provided, however,
that, the Company and the Administrative Agent shall be entitled to
continue to deal solely and directly with such Lender in connection with
the interests so assigned and delegated to an Assignee Lender until
(i) written notice of such assignment and delegation,
together with payment instructions, addresses and related information with
respect to such Assignee Lender, shall have been given to the Company and
the Administrative Agent by such Lender and such Assignee Lender,
(ii) such Assignee Lender shall have executed and delivered to
the Company and the Administrative Agent a Lender Assignment Agreement,
accepted by the Administrative Agent, and
(iii) the processing fees described below shall have been paid.
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights
and obligations hereunder have been assigned and delegated to such Assignee
Lender in connection with such Lender Assignment Agreement, shall have the
rights and obligations of a Lender hereunder and under the other Loan
Documents, and (y) the assignor Lender, to the extent that rights and
obligations hereunder have been assigned and delegated by it in connection
with such Lender Assignment Agreement, shall be released from its
obligations hereunder and under the other Loan Documents. Within five
Business Days after its receipt of notice that the Administrative Agent has
received an executed Lender Assignment Agreement, the Company shall execute
and deliver to the Administrative Agent (for delivery to the relevant
Assignee Lender) a new Note evidencing such Assignee Lender's assigned Note
and Commitment and, if the assignor Lender has retained a portion of its
Note and its Commitment hereunder, a replacement Note in the principal
amount of the portion of the Note and Commitment retained by the assignor
Lender hereunder (such Notes to be in exchange for, but not in payment of,
that Note then held by such assignor Lender). Each such Note shall be
dated the date of the predecessor Note. The assignor Lender shall ▇▇▇▇ the
predecessor Note exchanged and deliver it to the Company. Accrued
interest on that part of the predecessor Note evidenced by the new Note
shall be paid as provided in the Lender Assignment Agreement. Accrued
interest on that part of the predecessor Note evidenced by the replacement
Note shall be paid to the assignor Lender. Accrued interest shall be paid
at the same time or times provided in the predecessor Note and in this
Agreement. Such assignor Lender or such Assignee Lender must also pay a
processing fee to the Administrative Agent upon delivery of any Lender
Assignment Agreement in the amount of $3,000. Any attempted assignment and
delegation not made in accordance with this Section 11.11.1 shall be null
and void.
SECTION 11.11.2 PARTICIPATIONS. Any Lender may at any time sell to
one or more financial institutions (each of such financial institution
being herein called a Participant) participating interests in its Note or
Commitment, or other interests of such Lender hereunder; provided, however,
that
(a) no participation contemplated in this Section 11.11 shall
relieve such Lender from its Commitment or its other obligations hereunder
or under any other Loan Document,
(b) such Lender shall remain solely responsible for the performance
of its Commitment and such other obligations,
(c) the Company and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and each of the other Loan
Documents,
(d) no Participant, unless such Participant is an Affiliate of such
Lender, or is itself a Lender, shall be entitled to require such Lender to
take or refrain from taking any action hereunder or under any other Loan
Document, except that such Lender may agree with any Participant that such
Lender will not, without such Participant's consent, take any actions of
the type described in clause (b) or (c) of Section 11.1, and
(e) the Company shall not be required to pay any amount under
Section 5.1 that is greater than the amount which it would have been
required to pay had no participating interest been sold.
The Company acknowledges and agrees that each Participant, for purposes of
Sections 3.10, 3.11, 5.1, 5.3, 5.4, 11.3 and 11.4, shall be considered a
Lender.
SECTION 11.12 OTHER TRANSACTIONS. Nothing contained herein shall
preclude the Administrative Agent or any other Lender from engaging in any
transaction, in addition to those contemplated by this Agreement or any
other Loan Document, with the Company or any of its Affiliates in which the
Company or such Affiliate is not restricted hereby from engaging with any
other Person.
SECTION 11.13 FORUM SELECTION AND CONSENT TO JURISDICTION. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE
ADMINISTRATIVE AGENT, THE LENDERS OR THE COMPANY SHALL BE BROUGHT AND
MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS. THE
COMPANY HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS
SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH SUCH LITIGATION. THE COMPANY FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS.
THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO
THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE COMPANY HAS OR HEREAFTER
MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OF FROM ANY LEGAL
PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, THE COMPANY HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF
ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 11.14 WAIVER OF JURY TRIAL. THE ADMINISTRATIVE AGENT, THE
LENDERS AND THE COMPANY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE
ADMINISTRATIVE AGENT, THE LENDERS OR THE COMPANY. THE COMPANY ACKNOWLEDGES
AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS
PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT
IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
ADMINISTRATIVE AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH
SUCH OTHER LOAN DOCUMENT.
SECTION 11.15 CONFIDENTIALITY. The Administrative Agent and each
Lender shall hold nonpublic information obtained pursuant to the
requirements of this Agreement other than information (a) that is, or
generally becomes, available to the public, (b) that was or becomes
available to the Administrative Agent or any Lender on a nonconfidential
basis, or (c) that becomes available to the Administrative Agent or any
Lender from a Person or other source that is not to the knowledge of
Administrative Agent or such Lender (as the case may be), otherwise bound
by a confidentiality obligation to the Company, in accordance with its
customary procedures for treatment of confidential information and in
accordance with safe and sound banking practices and in any event, may make
disclosure reasonably required by any bona fide transferee or participant
in connection with the contemplated transfer of any Loan or Note or
participation therein or as required or requested by any governmental
agency or representative thereof pursuant to legal process.
SECTION 11.16 SPECIAL PURPOSE FUNDING VEHICLE. Notwithstanding
anything to the contrary contained herein, any Lender (a Granting Bank)
may grant to a special purpose funding vehicle (an SPC) of such Granting
Bank, identified as such in writing from time to time by the Granting Bank
to the Administrative Agent and the Company, the option to provide all or
any part of any Loan that such Granting Bank would otherwise be obligated
to make hereunder, provided that (i) nothing herein shall constitute a
commitment to make any Loan by any SPC, (ii) if an SPC elects not to
exercise such option or otherwise fails to provide all or any part of such
Loan, the Granting Bank shall be obligated to make such Loan pursuant to
the terms hereof, and (iii) the rights of any such SPC shall be derivative
of the rights of the Granting Bank, and each SPC shall be subject to all of
the restrictions upon the Granting Bank herein contained. Each SPC shall
be conclusively presumed to have made arrangements with its Granting Bank
for the exercise of voting and other rights hereunder in a manner which is
acceptable to the SPC, and the Administrative Agent, the other Lenders and
the Company shall be entitled to rely upon and deal solely with the
Granting Bank with respect to Loans made by or through its SPC. The making
of a Loan by an SPC hereunder shall utilize the Commitment of the Granting
Bank to the same extent, and as if, such Loan were made by the Granting
Bank. Each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and
one day after the payment in full of all outstanding senior indebtedness of
any SPC, it will not institute against, or join any other person in
instituting against, such SPC, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the laws
of the United States or any State thereof, provided that the Granting Bank
for each SPC hereby agrees to indemnify, save and hold harmless each other
party hereto for any loss, cost, damage and expense arising out of their
inability to institute any such proceeding against its SPC. In addition,
notwithstanding anything to the contrary contained in this Section 11.16,
any SPC may (i) with notice to, but without the prior written consent of,
the Company or the Administrative Agent and without paying any processing
fee therefor, assign all or a portion of its interests in any Loans to its
Granting Bank or to any financial institutions providing liquidity and/or
credit facilities to or for the account of such SPC to fund the Loans made
by such SPC or to support the securities (if any) issued by such SPC to
fund such Loans (but nothing contained herein shall be construed in
derogation of the obligation of the Granting Bank to make Loans hereunder),
provided that neither the consent of the SPC or of any such assignee shall
be required for amendments or waivers of provisions of the Loan Documents,
and (ii) disclose on a confidential basis (in the same manner described in
Section 11.15) any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of a surety, guarantee
or credit or liquidity enhancement to such SPC.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of
the day and year first above written.
CHICAGO TITLE CORPORATION
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: EVP, CFO and CAO
By: /S/ A. ▇▇▇▇▇ ▇▇▇▇
Its: VP and Treasurer
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: A. ▇▇▇▇▇ ▇▇▇▇
CHICAGO TITLE AND TRUST COMPANY
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: EVP, CFO and CAO
By: /S/ A. ▇▇▇▇▇ ▇▇▇▇
Its: VP and Treasurer
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: A. ▇▇▇▇▇ ▇▇▇▇
LASALLE BANK N.A.
as Administrative Agent
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇
Its: Senior Vice President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
PERCENTAGE LENDERS
40% LASALLE BANK N.A.
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
Domestic
Office: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
LIBOR Office: Same as above
20% CHASE BANK OF TEXAS, N.A.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Domestic
Office: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
LIBOR Office: Same as above
20% U.S. BANK NATIONAL ASSOCIATION
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Domestic
Office: ▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
LIBOR Office: Same as above
20% BANK OF MONTREAL
By:_____________________________________
Title:__________________________________
Domestic
Office: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇, ▇▇., Director
LIBOR Office: Same as above