Exhibit 10.1
$500,000,000
CREDIT AGREEMENT
dated as of
July 30, 1999
among
▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance Company,
▇▇▇▇ ▇▇▇▇▇▇▇ Capital Corporation,
The Banks Listed Herein,
BankBoston, N.A.,
as Administrative Agent,
Citicorp USA, Inc.,
as Syndication Agent,
The First National Bank of Chicago,
as Documentation Agent,
and
Comerica Bank, The Bank of Nova Scotia, Fleet National Bank,
Royal Bank of Canada and Wachovia Bank, as Co-Agents
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS................................................................ 1
SECTION 1.01. Definitions........................................................... 1
SECTION 1.02. Accounting Terms and Determinations................................... 11
SECTION 1.03. Types of Borrowings................................................... 11
ARTICLE II. THE CREDITS................................................................ 12
SECTION 2.01. Commitments to Lend................................................... 12
SECTION 2.02. Notice of Committed Borrowing......................................... 12
SECTION 2.03. Reserved.............................................................. 12
SECTION 2.04. Notice to Banks; Funding of Loans..................................... 13
SECTION 2.05. Notes................................................................. 13
SECTION 2.06. Maturity of Loans..................................................... 14
SECTION 2.07. Interest Rates........................................................ 14
SECTION 2.08. Facility Fee.......................................................... 16
SECTION 2.09. Optional Termination or Reduction of Commitments...................... 16
SECTION 2.10. Method of Electing Interest Rates..................................... 16
SECTION 2.11. Optional Prepayments.................................................. 17
SECTION 2.12. General Provisions as to Payments..................................... 18
SECTION 2.13. Funding Losses........................................................ 18
SECTION 2.14. Computation of Interest and Fees...................................... 19
SECTION 2.15. Withholding Tax Exemption............................................. 19
SECTION 2.16. Regulation D Compensation............................................. 19
ARTICLE III. CONDITIONS................................................................. 20
SECTION 3.01. Effectiveness......................................................... ▇▇
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▇▇▇▇▇▇▇ 3.02. Borrowings............................................................ 21
ARTICLE IV. REPRESENTATIONS AND WARRANTIES............................................. 22
SECTION 4.01. Existence and Power................................................... 22
SECTION 4.02. Authorization; No Contravention....................................... 22
SECTION 4.03. Binding Effect........................................................ 22
SECTION 4.04. Title to Properties................................................... 22
SECTION 4.05. Financial Information................................................. 23
SECTION 4.06. Litigation............................................................ 24
SECTION 4.07. Compliance with ERISA................................................. 24
SECTION 4.08. Compliance with Laws.................................................. 24
SECTION 4.09. Taxes................................................................. 24
SECTION 4.10. No Event of Default................................................... 24
SECTION 4.11. Not an Investment Company............................................. 24
SECTION 4.12. Full Disclosure....................................................... 25
SECTION 4.13. Year 2000 Compliance.................................................. 25
ARTICLE V. COVENANTS.................................................................. 25
SECTION 5.01. Information........................................................... 25
SECTION 5.02. Maintenance of Property; Insurance.................................... 28
SECTION 5.03. Conduct of Business and Maintenance of Existence...................... 28
SECTION 5.04. Compliance with Laws.................................................. 29
SECTION 5.05. Compliance with ERISA................................................. 29
SECTION 5.06. Taxes................................................................. 29
SECTION 5.07. Subsidiary Debt....................................................... 29
SECTION 5.08. Management Surplus.................................................... 30
SECTION 5.09. Capitalization Ratio.................................................. 30
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SECTION 5.10. Company Negative Pledge............................................... 30
SECTION 5.11. JHCC Negative Pledge.................................................. 31
SECTION 5.12. Consolidations, Mergers and Sales of Assets........................... 31
SECTION 5.13. Support Agreement; Company Assumption Agreement; Guarantee Agreement.. 32
SECTION 5.14. Use of Proceeds....................................................... 32
ARTICLE VI. DEFAULTS................................................................... 33
SECTION 6.01. Events of Default..................................................... 33
SECTION 6.02. Notice of Default..................................................... 35
ARTICLE VII. THE AGENT.................................................................. 36
SECTION 7.01. Appointment and Authorization......................................... 36
SECTION 7.02. Agent and Affiliates.................................................. 36
SECTION 7.03. Action by Agent....................................................... 36
SECTION 7.04. Consultation with Experts............................................. 36
SECTION 7.05. Liability of Agent.................................................... 36
SECTION 7.06. Indemnification....................................................... 36
SECTION 7.07. Credit Decision....................................................... 37
SECTION 7.08. Successor Agent....................................................... 37
SECTION 7.09. Agent's Fee........................................................... 37
ARTICLE VIII. CHANGE IN CIRCUMSTANCES.................................................... 37
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair.............. 37
SECTION 8.02. Illegality............................................................ 38
SECTION 8.03. Increased Cost and Reduced Return..................................... 38
SECTION 8.04. Base Rate Loans Substituted for Affected Fixed Rate Loan.............. 40
SECTION 8.05. Substitution of Bank.................................................. 40
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ARTICLE IX. MISCELLANEOUS.............................................................. 40
SECTION 9.01. Notices............................................................... 40
SECTION 9.02. No Waivers............................................................ 41
SECTION 9.03. Expenses; Documentary Taxes; Indemnification.......................... 41
SECTION 9.04. Sharing of Set-Offs................................................... 41
SECTION 9.05. Amendments and Waivers................................................ 42
SECTION 9.06. Successors and Assigns................................................ 42
SECTION 9.07. Collateral............................................................ 44
SECTION 9.08. Waiver of Certain Claims.............................................. 44
SECTION 9.09. Termination of JHCC as a Borrower..................................... 44
SECTION 9.10. Governing Law; Submission to Jurisdiction............................. 45
SECTION 9.11. Counterparts; Integration............................................. 45
SECTION 9.12. Waiver of Jury Trial.................................................. 45
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Exhibit A - Note
Exhibit B - Company Assumption Agreement
Exhibit C - Guarantee Agreement
Exhibit D - Opinion of the Second Vice President and Counsel of the
Company
Exhibit E - Opinion of Special Counsel for the Agent
Exhibit F - Assignment and Assumption Agreement
Exhibit G - JHCC Termination Notice
Exhibit H - Support Agreement
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CREDIT AGREEMENT
AGREEMENT dated as of July 30, 1999 among ▇▇▇▇ ▇▇▇▇▇▇▇ MUTUAL LIFE
INSURANCE COMPANY, ▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL CORPORATION, the BANKS listed on the
signature pages hereof and BANKBOSTON, N.A., as Agent.
W I T N E S S E T H:
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WHEREAS, the Borrowers (as hereinafter defined) desire to obtain
credit from the Banks (as hereinafter defined) pursuant to a 364-day Senior
Revolving Credit Facility (the "Facility");
WHEREAS, the Banks desire to extend credit to the Borrowers pursuant
to the Facility; and
WHEREAS, each Bank, in entering into this Agreement, expressly relies
on the Support Agreement (as hereinafter defined) pursuant to Section (6)
thereof;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have
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the following meanings:
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Agent and submitted to
the Agent (with a copy to the Company) duly completed by such Bank.
"Agent" means BankBoston, N.A. in its capacity as administrative agent
for the Banks hereunder, and its successors in such capacity.
"Applicable Lending Office" means, with respect to any Bank, (i) in
the case of its Base Rate Loans, its Base Rate Lending Office and (ii) in the
case of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Assignee" has the meaning set forth in Section 9.06(c).
"Authorized Officers" means, with respect to either Borrower,
individuals described as such in the most recent certificate with respect
thereto delivered to the Agent in
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accordance with Section 9.01 by the Secretary or an Assistant Secretary of such
Borrower; provided that the Agent may conclusively rely on any such certificate
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of a Borrower as to the Authorized Officers of such Borrower, whether or not, at
any applicable time, any individual identified as an Authorized Officer of such
Borrower in such certificate is, at such time, an officer of such Borrower,
until and unless the Agent shall have received a new certificate from such
Borrower which alters or supersedes such previous certificate.
"AVR" means the Asset Valuation Reserve established and required to be
maintained by the Company pursuant to, and as described in, the Purposes and
Procedures of the Securities Valuation Office of the NAIC, as such statement is
amended from time to time.
"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 9.06(c), and their respective
successors.
"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the rate of interest publicly announced by BankBoston, N.A. at its head
office in Boston, Massachusetts as its base rate for such day and (ii) the sum
of 1/2 of 1% plus the Federal Funds Effective Rate for such day.
"Base Rate Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in Boston, Massachusetts are authorized by
law to close.
"Base Rate Lending Office" means, as to each Bank, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Base Rate Lending Office) or such other
office as such Bank may hereafter designate as its Base Rate Lending Office by
notice to the Company and the Agent.
"Base Rate Loan" means (i) a Committed Loan which bears interest at
the Base Rate pursuant to the applicable Notice of Committed Borrowing or Notice
of Interest Rate Election or the provisions of Article VIII or (ii) an overdue
amount which was a Base Rate Loan immediately before it became overdue.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrower" means the Company or JHCC, as the context may require, and
"Borrowers" means both of the foregoing; provided that if JHCC shall have been
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terminated as a Borrower hereunder pursuant to Section 9.09, neither the term
"Borrower" nor the term "Borrowers" shall thereafter include or refer to JHCC.
"Borrowing" has the meaning set forth in Section 1.03.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the signature pages hereof, as such amount may
be reduced from time to time pursuant to Section 2.09 or terminated pursuant to
Section 2.01 or 2.09.
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"Committed Loan" means a Base Rate Loan or Euro-Dollar Loan made by a
Bank pursuant to Section 2.01; provided that, if any such loan or loans (or
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portions thereof) are combined or subdivided pursuant to a Notice of Interest
Rate Election, the term "Committed Loan" shall refer to the combined principal
amount resulting from such combination or to each of the separate principal
amounts resulting from such subdivision, as the case may be.
"Company" means ▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance Company, a legal
reserve mutual life insurance company organized under the laws of the
Commonwealth of Massachusetts, and its permitted successors.
"Company Assumption Agreement" means an agreement entered into by the
Company for the benefit of the Agent, the Banks and the holders from time to
time of the Notes issued by JHCC, substantially in the form of Exhibit B hereto.
"Consent Date" has the meaning set forth in Section 2.06(b).
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all obligations of
such Person to purchase securities (or other property) which arise out of or in
connection with the sale of the same or substantially similar securities (or
other property), (vi) all non-contingent obligations of such Person to reimburse
any bank or other Person in respect of amounts paid under a letter of credit or
similar instrument, (vii) all Debt of others secured by a Lien on the assets
generally of such Person, whether or not such Debt is assumed by such Person,
(viii) all Debt of others Guaranteed by such Person, and (ix) all redeemable
preferred stock issued by such Person other than any such preferred stock
redeemable at the sole option of such Person; provided, that the term Debt shall
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not include (x) the debt under the Credit Agreement, dated as of March 12, 1999,
among the Borrowers listed on Schedule 1 thereof, the Banks listed on Schedule 2
thereof, Fleet National Bank, as Administrative Agent, BankBoston, N.A., as
Syndication Agent, Citicorp USA, Inc., as Documentation Agent, and State Street
Bank and Trust Company, as Operations Agent, as such Credit Agreement may be
amended, supplemented or modified, or as such Credit Agreement may be
substituted for or replaced by a credit agreement of similar import, (y)
obligations recourse for the payment of which is limited to specified assets of
such Person and (z) obligations of a Person which is an insurance company (1)
which arise in connection with policies or contracts of insurance, funding
agreements and other similar contracts entered into in the ordinary conduct of
such Person's insurance business or (2) to the extent that recourse for the
payment of such obligations is limited to assets held in separate accounts of
such Person.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
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"Designated Deposit Account" means (i) in the case of the Company, the
deposit account number 279-80008 maintained with the Agent at the address of the
Agent specified in or pursuant to Section 9.01 or such other deposit account
maintained with the Agent at such address as the Company shall specify in
writing to the Agent and (ii) in the case of JHCC, the deposit account number
561-01317 maintained with the Agent at such address or such other deposit
account maintained with the Agent at such address as JHCC shall specify in
writing to the Agent.
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 3.01.
"Eligible Affiliate" means a Person (1) that is a Parent or subsidiary
of a Bank hereunder or has the same Parent as a Bank hereunder and (2) that is
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(a) a commercial bank organized under the laws of the United States of America,
or any state thereof, and having total assets in excess of $1,000,000,000; (b) a
savings and loan association or savings bank organized under the laws of the
United States of America, or any state thereof, and having a tangible net worth
of at least $1,000,000,000; (c) a commercial bank organized under the laws of
any other country which is a member of the Organization for Economic Cooperation
and Development ("OECD"), or a political subdivision of any such country, and
having total assets in excess of $10,000,000,000, provided that such bank is
acting through a branch or agency located in the United States of America; or
(d) any other Person consented to by the Agent and the Borrower (such consent
not to be unreasonably withheld).
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment, including, without limitation, ambient air, surface water,
ground water or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"Equivalent Rating" means a senior unsecured long-term debt rating of
an NRSRO, which rating is (i) requested by a Borrower as an alternative to a
rating from S&P, (ii) acceptable to the Agent in its sole discretion, and (iii)
equivalent to the Level I Rating, Level II Rating, Level III Rating or Level IV
Rating, as the case may be, from S&P, as determined by the Agent, subject to the
approval of the Required Banks.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means the Company and all members of a controlled group
of corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Company, are treated as a single
employer under Section 414 of the Internal Revenue Code, but only to the extent
that either Borrower could have liability under ERISA with respect to the
actions or inactions of such members.
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"Euro-Dollar Business Day" means any Base Rate Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London or such other eurodollar interbank market as may be
selected by the Agent in its sole discretion acting in good faith.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Euro-
Dollar Lending Office) or such other office, branch or affiliate of such Bank as
it may hereafter designate as its Euro-Dollar Lending Office by notice to the
Company and the Agent.
"Euro-Dollar Loan" means (i) a Committed Loan which bears interest at
a Euro-Dollar Rate pursuant to the applicable Notice of Committed Borrowing or
Notice of Interest Rate Election or (ii) an overdue amount which was a Euro-
Dollar Loan immediately before it became overdue.
"Euro-Dollar Margin" has the meaning set forth in Section 2.07(c).
"Euro-Dollar Rate" has the meaning set forth in Section 2.07(c).
"Euro-Dollar Reference Banks" means the principal Euro-Dollar Lending
Offices of such Banks as may be selected by the Agent in its sole discretion
acting in good faith.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in Boston, Massachusetts with deposits exceeding five billion
dollars in respect of "Eurocurrency liabilities" (or in respect of any other
category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents).
"Event of Default" has the meaning set forth in Section 6.01.
"Excluded Subsidiary" means (i) a limited partnership of which any
Subsidiary serves as general partner or a trust over which any Subsidiary
exercises control, which limited partnership or trust was formed primarily for
the purpose of making debt or equity investments in other entities and in which
entities other than the Company and the Subsidiaries own, following the close of
the syndication period with respect thereto, 20% or more of the equity or
beneficial interest, as the case may be, and (ii) any Subsidiary the beneficial
or equity interest in which is directly or indirectly acquired by the Company in
connection with workouts, either in a bankruptcy proceeding or otherwise, of
investments previously made by the Company or any Subsidiary.
"Facility" has the meaning set forth in the preamble to this
Agreement.
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"Federal Funds Effective Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day by the Federal Reserve Bank of Boston; provided that (i) if such day is not
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a Base Rate Business Day, the Federal Funds Effective Rate for such day shall be
such rate on such transactions on the next preceding Base Rate Business Day as
so published on the next succeeding Base Rate Business Day, and (ii) if no such
rate is so published on such next succeeding Base Rate Business Day, the Federal
Funds Effective Rate for such day shall be the average of the quotations for
such day on such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by the Agent.
"Granting Bank" has the meaning set forth in Section 9.06(f).
"Group of Loans" means at any time a group of Loans made to a Borrower
consisting of (i) all Committed Loans made to such Borrower which are Base Rate
Loans at such time or (ii) all Committed Loans made to such Borrower which are
Euro-Dollar Loans having the same Interest Period and bearing interest at the
same type of interest rate at such time; provided that, if Committed Loans of
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any particular Bank made to such Borrower are converted to or made as Base Rate
Loans pursuant to Section 8.02 or 8.04, such Loans shall be included in the same
Group or Groups of Loans from time to time as they would have been in if they
had not been so converted or made.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt (whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Debt of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); provided that the term Guarantee shall not include
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endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Guarantee Agreement" means an agreement entered into by the Company
for the benefit of the Agent, the Banks and the holders from time to time of the
Notes issued by JHCC, substantially in the form of Exhibit C hereto.
"Interest Period" means, with respect to each Euro-Dollar Loan, a
period commencing on the date of Borrowing specified in the applicable Notice of
Committed Borrowing or on the date specified in the applicable Notice of
Interest Rate Election and ending one, two, three or six months thereafter, as
the applicable Borrower may elect in the applicable Notice; provided that:
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(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the
next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business
Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
"Internal Revenue Code" means the Internal Revenue Code of 1986 and
the regulations thereunder, all as amended and in effect from time to time.
"JHCC" means ▇▇▇▇ ▇▇▇▇▇▇▇ Capital Corporation, a Delaware corporation,
and its permitted successors.
"JHSI" means ▇▇▇▇ ▇▇▇▇▇▇▇ Subsidiaries, Inc., a Delaware corporation,
and its successors.
"Level I Rating" means a senior unsecured long-term debt rating of AAA
from S&P, or an Equivalent Rating.
"Level II Rating" means a senior unsecured long-term debt rating of at
least AA+ from S&P, or an Equivalent Rating.
"Level III Rating" means a senior unsecured long-term debt rating of
at least AA- from S&P, or an Equivalent Rating.
"Level IV Rating" means a senior unsecured long-term debt rating of
below AA- from S&P, or an Equivalent Rating.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, the Company or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"Loan" means a Base Rate Loan or a Euro-Dollar Loan, and "Loans" means
Base Rate Loans, Euro-Dollar Loans or any combination of the foregoing.
"Management Surplus" means, at any date, the sum at such date, without
duplication, of (a) Surplus of the Company and (b) AVR of the Company and any
other reserve established and maintained by the Company with respect to its
invested assets (except for
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reserves established for separate accounts), either voluntarily or pursuant to
requirements of applicable law, the NAIC, the Insurance Department of the
Commonwealth of Massachusetts or any other state or federal regulatory authority
having jurisdiction over the Company, in addition to or in substitution for or
replacement of AVR (other than an interest maintenance reserve or other similar
reserve).
"Material Adverse Effect" means a material adverse effect on the
ability of either Borrower to perform its obligations under this Agreement or
the Notes.
"Material Debt" means (i) for purposes of Section 6.01(e), Debt (other
than the Notes or Permitted Collateralization Obligations) of one or both
Borrowers, arising in one or more related or unrelated transactions, in an
aggregate principal amount in excess of (A) for purposes of subsections 6.01(e)
(i) (A) and 6.01(e) (ii), $50,000,000 and (B) for purposes of subsection 6.01(e)
(i) (B), $75,000,000 and (ii) for purposes of Section 6.01(f), Debt (other than
Permitted Collateralization Obligations) of one or more Subsidiaries of the
Company each of which is not a Borrower, arising in one or more related or
unrelated transactions, in an aggregate principal amount in excess of
$75,000,000; provided that for purposes of this definition, Debt of the Company
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or any Subsidiary referred to in the exception contained in the definition of
"Permitted Collateralization Obligation" shall, at any date, be deemed to be in
an amount equal to the amount of such Debt then due.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $75,000,000.
"Material Subsidiary" means, at any date, (i) unless JHCC shall have
been terminated as a Borrower hereunder pursuant to Section 9.09, JHCC and (ii)
any Subsidiary the principal activities of which consist of activities other
than the ownership or management of, or investment in, other Subsidiaries and
the assets of which (other than, in the case of any Subsidiary that is an
insurance company, assets held in separate accounts of such Subsidiary) as of
such date exceed 15% of the Company's assets (other than assets held in separate
accounts of the Company), as reflected on the most recent statutory financial
statements of the Company delivered or required to be delivered to the Banks
pursuant to Section 4.05(a)(i) or 5.01(a) (i)
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a) (3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"NAIC" means the National Association of Insurance Commissioners or
any entity succeeding to its function of advising insurance companies as to the
values to be assigned to assets of such insurance companies included within one
or more categories of such assets.
"Notes" means promissory notes of either or both Borrowers,
substantially in the form of Exhibit A hereto, evidencing the obligations of
such Borrower or Borrowers to repay the Loans made to it or them, and "Note"
means any one of such promissory notes issued hereunder.
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"Notice of Committed Borrowing" has the meaning set forth in Section
2.02.
"Notice of Interest Rate Election" has the meaning set forth in
Section 2.10.
"NRSRO" means any nationally recognized statistical rating
organization.
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" has the meaning set forth in Section 9.06(b)
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Collateralization Assets" means assets pledged to secure
Permitted Collateralization Obligations.
"Permitted Collateralization Obligation" means any obligation relating
to REMICs, pass-through obligations, collateralized mortgage obligations,
collateralized bond obligations or similar instruments, except an obligation of
the Company or any Subsidiary (excluding any Subsidiary (other than JHCC, unless
JHCC shall have been terminated as a Borrower hereunder pursuant to Section
9.09) that is the issuer of the REMIC, pass-through obligation, collateralized
mortgage obligation, collateralized bond obligation or similar instrument) to
the extent that such obligation requires a cash payment by the Company or such
Subsidiary, recourse for the payment of which is not limited to specific assets
of the Company or such Subsidiary (excluding any obligation of the Company or
such Subsidiary (i) to make advances in connection with the servicing of such
REMIC, pass-through obligation, collateralized mortgage obligation,
collateralized bond obligation or similar instrument or (ii) to repurchase
collateral).
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other than
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Quarterly Date" means the last Euro-Dollar Business Day of each
March, June, September and December.
-9-
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks having at least 50% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding Notes evidencing at least 50% of the aggregate unpaid
principal amount of the Loans.
"S&P" means Standard & Poor's Corporation, and its successors.
"Senior Financial Officer" means (i) with respect to the Company, the
Chief Financial Officer, the Controller or the Treasurer of the Company and (ii)
with respect to JHCC, the President, any Vice President or the Treasurer of
JHCC.
"Signing Date" means the date upon which the Agent shall have received
counterparts hereof signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been received, receipt
by the Agent in form satisfactory to it of telegraphic, telex or other written
confirmation from such party of the execution and delivery of a counterpart
hereof by such party).
"SPC" has the meaning set forth in Section 9.06(f).
"Special Act" has the meaning set forth in Section 4.01.
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Company.
"Support Agreement" means the Support Agreement dated as of October
15, 1984 between the Company and JHCC, a copy of which is attached hereto as
Exhibit H, as the same may, subject to Section 5.13, be amended from time to
time.
"Surplus of the Company" means the statutory surplus of the Company
consisting of the excess of the admitted assets of the Company over the sum of
its capital and liabilities, except that surplus notes issued by the Company
shall not be considered as liabilities of the Company, but shall be considered
as part of the Surplus of the Company.
"Tax Group" means, for any applicable period, both Borrowers and all
corporations (within the meaning of the Internal Revenue Code) for the payment
of the federal income taxes of which either Borrower is jointly and severally
liable under the Internal Revenue Code for such period.
"Termination Date" means the 364th day after the Effective Date or,
if the maturity shall have been extended pursuant to Section 2.06(b) hereof, the
364th day after the Consent Date.
-10-
"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all benefits under such
Plan exceeds (ii) the fair market value of all Plan assets allocable to such
benefits (excluding any accrued but unpaid contributions), all determined as of
the then most recent valuation date for such Plan, but only to the extent that
such excess represents a potential liability of a member of the ERISA Group to
the PBGC or any other Person under Title IV of ERISA.
"Year 2000 Compliant" means the ability of computer applications,
imbedded microchips and other hardware and software systems used by a Borrower,
or its material vendors, properly to recognize and perform date sensitive
functions involving certain dates prior to January 1, 2000 and any date after
December 31, 1999.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
-----------------------------------
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made and all financial statements
required to be delivered hereunder shall be prepared in accordance with, in the
case of the Company or any of its insurance Subsidiaries, accounting practices
prescribed or permitted by insurance regulatory authorities (it being understood
that as of the date hereof such accounting practices are considered by the
Company's independent public accountants to be generally accepted accounting
principles) and, in the case of each non-insurance Subsidiary of the Company,
generally accepted accounting principles, in each case as in effect from time to
time, applied on a basis consistent (except, in the case of the Company or any
of its insurance Subsidiaries, for changes required by insurance regulatory
authorities and, in the case of each non-insurance Subsidiary of the Company,
for changes concurred in by the Company's independent public accountants) with
the most recent comparable financial statements thereof delivered to the Banks
pursuant to Section 4.05(a) or (b) or Section 5.01(a) or (b); provided that, if
--------
the Company notifies the Agent that it wishes to amend any covenant in Article V
to eliminate the effect of any change in, in the case of the Company or any of
its insurance Subsidiaries, accounting practices prescribed or permitted by
insurance regulatory authorities or, in the case of any non-insurance Subsidiary
of the Company, generally accepted accounting principles, on the operation of
such covenant (or if the Agent notifies the Company that the Required Banks wish
to amend Article V for such purpose), then the Borrowers' compliance with such
covenant shall be determined on the basis of, in the case of the Company and any
of its insurance Subsidiaries, accounting practices prescribed or permitted by
insurance regulatory authorities and, in the case of any non-insurance
Subsidiary of the Company, generally accepted accounting principles, in each
case in effect immediately before the relevant change in such accounting
practices or accounting principles, as the case may be, became effective, until
either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Company and the Required Banks.
SECTION 1.03. Types of Borrowings. The term "Borrowing" denotes the
-------------------
aggregation of Loans of one or more Banks to be made to a single Borrower
pursuant to Article II on a single date and for a single Interest Period.
Borrowings are classified for purposes of this Agreement by reference to the
pricing of Loans comprising such Borrowing (i.e., a "Base Rate Borrowing" is a
----
Borrowing composed of "Base Rate Loans" and a "Euro-Dollar Borrowing" is a
Borrowing composed of Euro-Dollar Loans).
-11-
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. Each Bank severally agrees, on
-------------------
the terms and conditions set forth in this Agreement, to make loans to either
Borrower pursuant to this Section from time to time before the Termination Date
in amounts such that the aggregate principal amount of Committed Loans by such
Bank at any one time outstanding to both Borrowers shall not exceed the amount
of its Commitment. Each Borrowing under this Section shall be in an aggregate
principal amount of $25,000,000 or any larger multiple of $1,000,000 (except
that any such Borrowing may be in the aggregate amount available in accordance
with Section 3.02(b)) and shall be made from the several Banks ratably in
proportion to their respective Commitments. Within the foregoing limits, either
Borrower may borrow under this Section, repay, or to the extent permitted by
Section 2.11, prepay Loans and reborrow at any time before the Termination Date
under this Section. The Commitments shall terminate at the close of business on
the Termination Date.
SECTION 2.02. Notice of Committed Borrowing. The applicable Borrower
-----------------------------
shall give the Agent notice executed on behalf of such Borrower by its
Authorized Officers (a "Notice of Committed Borrowing"), not later than 10:00
A.M. (Boston, Massachusetts time) on (x) the date of each Base Rate Borrowing
and (y) the third Euro-Dollar Business Day before each Euro-Dollar Borrowing,
specifying:
(a) the date of such Borrowing, which shall be a Base Rate Business
Day in the case of a Base Rate Borrowing or a Euro-Dollar Business Day in
the case of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing are to bear interest
initially at the Base Rate or at a Euro-Dollar Rate, and
(d) in the case of a Euro-Dollar Rate Borrowing, the duration of the
initial Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
SECTION 2.03. Reserved.
--------
SECTION 2.04. Notice to Banks; Funding of Loans.
---------------------------------
(a) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's share (if any) of
such Borrowing and such Notice of Borrowing shall not thereafter be revocable by
the Borrower.
-12-
(b) Not later than 2:00 P.M. (Boston, Massachusetts time) on the date
of each Borrowing, each Bank participating therein shall make available its
share of such Borrowing, in Federal or other funds immediately available in
Boston, Massachusetts, to the Agent at its address specified in or pursuant to
Section 9.01. Unless the Agent determines that any applicable condition
specified in Article III has not been satisfied, the Agent will deposit the
funds so received from the Banks on the day received in the applicable
Borrower's Designated Deposit Account.
(c) Unless the Agent shall have received notice from a Bank prior to
the date of (or, in the case of a Base Rate Borrowing, prior to 11:00 A.M.
(Boston, Massachusetts time) on the date of) any Borrowing that such Bank will
not make available to the Agent such Bank's share of such Borrowing, the Agent
may assume that such Bank has made such share available to the Agent on the date
of such Borrowing in accordance with subsection (b) of this Section 2.04 and the
Agent may, in reliance upon such assumption, make available to the applicable
Borrower on such date a corresponding amount. If and to the extent that such
Bank shall not have so made such share available to the Agent, such Bank and the
applicable Borrower severally agree to repay to the Agent forthwith on demand
such corresponding amount together with interest thereon, for each day from the
date such amount is made available to such Borrower until the date such amount
is repaid to the Agent, at (i) in the case of such Borrower, a rate per annum
equal to the higher of the Federal Funds Effective Rate and the interest rate
applicable thereto pursuant to Section 2.07 and (ii) in the case of such Bank,
the Federal Funds Effective Rate. If such Bank shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Bank's Loan
included in such Borrowing for purposes of this Agreement.
SECTION 2.05. Notes. (a) The Loans of each Bank to each Borrower
-----
shall be evidenced by a single Note of such Borrower payable to the order of
such Bank for the account of its Applicable Lending Office in an amount equal to
the aggregate unpaid principal amount of such Bank's Loans to such Borrower.
(b) Each Bank may, by notice to the Company and the Agent, request
that its Loans of a particular type to a Borrower be evidenced by a separate
Note of such Borrower in an amount equal to the aggregate unpaid principal
amount of such Loans, in which case any Note then held by such Bank that would
otherwise evidence Loans of such type shall be appropriately modified to reflect
the fact that it does not evidence Loans of such type. Each such Note shall be
in substantially the form of Exhibit A hereto with appropriate modifications to
reflect the fact that it evidences solely Loans of the relevant type. Each
reference in this Agreement to a "Note" or the "Notes" of such Bank shall be
deemed to refer to and include any or all of such Notes, as the context may
require.
(c) Upon receipt of each Bank's Notes pursuant to Section 3.01(b),
the Agent shall deliver such Notes by hand or overnight courier to such Bank.
Each Bank shall record the date and amount of each Loan made by it to a Borrower
and the date and amount of each payment of principal made by such Borrower with
respect thereto, and prior to any transfer of its Note of a Borrower, shall
endorse on the schedule forming a part thereof appropriate notations to evidence
the foregoing information with respect to each such Loan to such Borrower then
outstanding; provided that the failure of any Bank to make any such recordation
--------
or endorsement
-13-
shall not affect the obligations of such Borrower hereunder or under the Notes.
Each Bank is hereby irrevocably authorized by each Borrower so to endorse the
Note of such Borrower and to attach to and make a part of the Note of such
Borrower a continuation of any such schedule as and when required.
SECTION 2.06. Maturity of Loans. (a) Each Committed Loan included in
-----------------
any Committed Borrowing shall mature, and the principal amount thereof shall be
due and payable, on the Termination Date.
(b) The Borrowers may request a 364-day extension of the Termination
Date by delivering written notice thereof to the Agent no more than 60 and no
less than 45 days before the Termination Date. The Banks, in their sole
discretion, may but shall not be obligated to agree to such an extension. The
Banks shall advise the Borrowers of their respective decisions 30 days prior to
the Termination Date (the "Consent Date"), and if more than 50% of the Banks
agree to extend, the Termination Date will be extended until the 364/th/ day
after the Consent Date. Non-consenting Banks shall exit the Facility, and the
outstandings on their respective Commitments shall be paid by the Borrowers, on
the Termination Date as in effect prior to such extension. The Facility will
automatically be reduced by the non-consenting Banks' Commitments, but such non-
consenting Banks may be replaced by the Company at any time prior to maturity
with the assistance of and upon consultation with the Agent.
SECTION 2.07. Interest Rates. (a) Each Base Rate Loan shall bear
--------------
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the Base
Rate for such day. Such interest shall be payable quarterly in arrears on each
Quarterly Date, on the Termination Date, and on the date such Base Rate Loan is
converted to a Euro-Dollar Loan. Any overdue principal of or interest on any
Base Rate Loan shall bear interest, payable on demand, for each day until paid
at a rate per annum equal to the sum of 2% plus the rate otherwise applicable to
Base Rate Loans for such day.
(b) Intentionally omitted.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin
applicable on such day plus the Euro-Dollar Rate applicable for such Interest
Period, provided that after an Event of Default, each Euro-Dollar Margin shall
--------
be increased by 200 basis points. Such interest shall be payable for each
Interest Period on the last day thereof and, if such Interest Period is longer
than three months, at intervals of three months after the first day thereof.
"Euro-Dollar Margin" means:
(i) for any day on which the Company has a Level I Rating, .125 of 1%
per annum if the aggregate outstanding principal amount of the Loans is
less than or equal to
-14-
50% of the Commitments and .175 of 1% per annum if the aggregate
outstanding principal amount of the Loans is greater than 50% of the
Commitments;
(ii) for any day on which the Company has a Level II Rating, .150 of
1% per annum if the aggregate outstanding principal amount of the Loans is
less than or equal to 50% of the Commitments and .200 of 1% per annum if
the aggregate outstanding principal amount of the Loans is greater than 50%
of the Commitments;
(iii) for any day on which the Company has a Level III Rating, .180 of
1% per annum if the aggregate outstanding principal amount of the Loans is
less than or equal to 50% of the Commitments and .230 of 1% per annum if
the aggregate outstanding principal amount of the Loans is greater than 50%
of the Commitments; and
(iv) for any day on which the Company has a Level IV Rating, .210 of
1% per annum if the aggregate outstanding principal amount of the Loans is
less than or equal to 50% of the Commitments and .260 of 1% per annum if
the aggregate outstanding principal amount of the Loans is greater than 50%
of the Commitments.
The "Euro-Dollar Rate" applicable to any Interest Period means the
average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which deposits in dollars are offered to each of
the Euro-Dollar Reference Banks in the London interbank market, or such other
eurodollar interbank market as may be selected by the Agent in its sole
discretion acting in good faith, at approximately 11:00 A.M. (local time of such
market) two Euro-Dollar Business Days before the first day of such Interest
Period in an amount approximately equal to the principal amount of the Euro-
Dollar Loan of such Euro-Dollar Reference Bank to which such Interest Period is
to apply and for a period of time comparable to such Interest Period.
(d) Any overdue principal of or interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day from and including the date
payment thereof was due to but excluding the date of actual payment, at a rate
per annum equal to the sum of 2% plus the Euro-Dollar Margin applicable on such
day plus the higher of (i) the Euro-Dollar Rate applicable to such Loan and (ii)
the average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which one day (or, if such amount due remains
unpaid more than three Euro-Dollar Business Days, then for such other period of
time not longer than three months as the Agent may select) deposits in dollars
in an amount approximately equal to such overdue payment due to each of the
Euro-Dollar Reference Banks are offered to such Euro-Dollar Reference Bank in
the London interbank market or such other eurodollar interbank market as may be
selected by the Agent in its sole discretion acting in good faith for the
applicable period determined as provided above (or, if the circumstances
described in clause (a) or (b) of Section 8.01 shall exist, at a rate per annum
equal to the sum of 2% plus the rate applicable to Base Rate Loans for such
day).
(e) Intentionally omitted.
-15-
(f) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the applicable Borrower
and the participating Banks by telex or facsimile of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
(g) Each Euro-Dollar Reference Bank agrees to use its best efforts to
furnish quotations to the Agent as contemplated by this Section. If any Euro-
Dollar Reference Bank does not furnish a timely quotation, the Agent shall
determine the relevant interest rate on the basis of the quotation or quotations
furnished by the remaining Euro-Dollar Reference Bank or Banks or, if none of
such quotations is available on a timely basis, the provisions of Section 8.01
shall apply.
SECTION 2.08. Facility Fee. The Company shall pay to the Agent for
------------
the account of the Banks ratably a facility fee at the rate of (i) for any day
on which the Company has a Level I Rating, .035 of 1% per annum, (ii) for any
day on which the Company has a Level II Rating, .050 of 1% per annum, (iii) for
any day on which the Company has a Level III Rating, .070 of 1% per annum and
(iv) for any day on which the Company has a Level IV Rating, .100 of 1% per
annum. Such facility fee shall accrue from and including the Signing Date to
but excluding the Termination Date (or, if later, the date the Loans shall be
repaid in their entirety), on the total amount of the Facility. Accrued fees
under this Section shall be payable quarterly in arrears on each Quarterly Date
and upon the date of termination of the Commitments in their entirety (and, if
later, the date the Loans shall be repaid in their entirety).
SECTION 2.09. Optional Termination or Reduction of Commitments. (a)
------------------------------------------------
At any time prior to the Termination Date, the Company may, upon at least three
Base Rate Business Days' notice to the Agent, (i) terminate the Commitments in
full at any time, if no Loans are outstanding at such time, or (ii) ratably
reduce from time to time by (A) an aggregate amount of $25,000,000, (B) any
larger multiple of $25,000,000 or (C) the full amount thereof, the aggregate
amount of the Commitments in excess of the aggregate outstanding principal
amount of the Loans.
(b) Upon receipt of a notice of termination or reduction pursuant to
this Section, the Agent shall promptly notify each Bank of the contents thereof
and of such Bank's ratable share of such reduction and such notice shall not
thereafter be revocable by either Borrower.
SECTION 2.10. Method of Electing Interest Rates. (a) The Loans
---------------------------------
included in each Committed Borrowing shall bear interest initially at the type
of rate specified by the applicable Borrower in the applicable Notice of
Committed Borrowing. Thereafter, such Borrower may from time to time elect to
change or continue the type of interest rate borne by each Group of Loans made
to such Borrower (subject in each case to the provisions of Article VIII), as
follows:
(i) if such Loans are Base Rate Loans, such Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business Day;
and
-16-
(ii) if such Loans are Euro-Dollar Loans, such Borrower may elect to
convert such Loans to Base Rate Loans or elect to continue such Loans as
Euro-Dollar Loans for an additional Interest Period, in each case effective
on the last day of the then current Interest Period applicable to such
Loans.
Each such election shall be made by delivering a notice executed on behalf of
the applicable Borrower by its Authorized Officers (a "Notice of Interest Rate
Election") to the Agent at least three Euro-Dollar Business Days before the
conversion or continuation selected in such notice is to be effective (unless
the relevant Loans are to be continued as Base Rate Loans of the same type for
an additional Interest Period, in which case such notice shall be delivered to
the Agent at least three Base Rate Business Days before such conversion or
continuation is to be effective). A Notice of Interest Rate Election may, if it
so specifies, apply to only a portion of the aggregate principal amount of the
relevant Group of Loans; provided that (i) such portion is allocated ratably
--------
among the Loans comprising such Group and (ii) the portion to which such Notice
applies, and the remaining portion to which it does not apply, are each
$25,000,000 or any larger multiple of $1,000,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable
clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the new
type of Loans and, if such new Loans are Euro-Dollar Loans, the duration of
the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for an
additional Interest Period, the duration of such additional Interest
Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from a
Borrower pursuant to subsection (a) above, the Agent shall promptly notify each
Bank of the contents thereof and such notice shall not thereafter be revocable
by such Borrower. If a Borrower fails to deliver a timely Notice of Interest
Rate Election to the Agent for any Group of Euro-Dollar Loans made to such
Borrower, such Loans shall be converted into Base Rate Loans on the last day of
the then current Interest Period applicable thereto.
SECTION 2.11. Optional Prepayments. (a) A Borrower may, upon at
--------------------
least one Base Rate Business Day's notice to the Agent, prepay a Group of Base
Rate Loans made to such Borrower in whole at any time, or from time to time in
part in amounts aggregating $25,000,000 or any larger multiple of $1,000,000, by
paying the principal amount to be prepaid together with
-17-
accrued interest thereon to the date of prepayment. Each such optional
prepayment shall be applied to prepay ratably the Loans of the several Banks
included in such Group or Borrowing.
(b) A Borrower may, upon at least three Euro-Dollar Business Days'
notice to the Agent, prepay a Group of Euro-Dollar Loans made to such Borrower
on the last day of any Interest Period applicable to such Group, in whole at any
time, or from time to time in part in amounts aggregating $25,000,000 or any
larger multiple of $1,000,000, by paying the principal amount to be prepaid
together with accrued interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the Loans of the several
Banks included in such Group.
(c) Upon receipt of a notice of prepayment pursuant to this Section,
the Agent shall promptly notify each Bank of the contents thereof and of such
Bank's ratable share (if any) of such prepayment and such notice shall not
thereafter be revocable by either Borrower.
SECTION 2.12. General Provisions as to Payments.
---------------------------------
(a) The Borrowers shall make each payment of principal of, and
interest on, the Loans and of fees hereunder, not later than 12:00 Noon (Boston,
Massachusetts time) on the date when due, in Federal or other funds immediately
available in Boston, Massachusetts, to the Agent at its address referred to in
Section 9.01. The Agent will promptly distribute to each Bank its ratable share
of each such payment received by the Agent for the account of the Banks.
Whenever any payment of principal of, or interest on, the Base Rate Loans or of
fees shall be due on a day which is not a Base Rate Business Day, the date for
payment thereof shall be extended to the next succeeding Base Rate Business Day.
Whenever any payment of principal of, or interest on, the Euro-Dollar Loans
shall be due on a day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding Euro-Dollar Business
Day unless such Euro-Dollar Business Day falls in another calendar month, in
which case the date for payment thereof shall be the next preceding Euro-Dollar
Business Day. If the date for any payment of principal is extended by operation
of law or otherwise, interest thereon shall be payable for such extended time.
(b) Unless the Agent shall have received notice from a Borrower prior
to the date on which any payment is due from such Borrower to the Banks
hereunder that such Borrower will not make such payment in full, the Agent may
assume that such Borrower has made such payment in full to the Agent on such
date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount, if any,
then due such Bank from such Borrower. If and to the extent that such Borrower
shall not have so made such payment, each Bank shall repay to the Agent
forthwith on demand such amount, if any, distributed to such Bank together with
interest thereon, for each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the Agent, at the Federal
Funds Effective Rate.
SECTION 2.13. Funding Losses. If a Borrower makes any payment of
--------------
principal with respect to any Euro-Dollar Loan or any Euro-Dollar Loan is
converted to a Base Rate Loan (pursuant to Article VI or VIII or otherwise) on
any day other than the last day of an Interest
-18-
Period applicable thereto, or the end of an applicable period fixed pursuant to
Section 2.07(d), or if a Borrower fails to borrow or prepay any Euro-Dollar
Loans after notice has been given to any Bank in accordance with Section 2.04(a)
or 2.11(d), as applicable, such Borrower shall reimburse each Bank within 15
days after demand for any resulting loss or expense incurred by it (or by an
existing or prospective Participant in the related Loan), including (without
limitation) any loss incurred in obtaining, liquidating or employing deposits
from third parties, but excluding loss of margin for the period after any such
payment or conversion or failure to borrow or prepay, provided that such Bank
--------
shall have delivered to such Borrower a certificate signed by an officer of such
Bank with knowledge of and responsibility for such matters which sets forth the
amount of such loss or expense and a reasonable explanation of the basis
therefor, which certificate shall be conclusive in the absence of manifest
error.
SECTION 2.14. Computation of Interest and Fees. Interest on Base
--------------------------------
Rate Loans and facility fee and other fee calculations shall be computed on the
basis of a year of 365 days (or 366 days in a leap year) and paid for the actual
number of days elapsed (including the first day but excluding the last day).
Interest on Euro-Dollar Loans shall be computed on the basis of a year of 360
days and paid for the actual number of days elapsed (including the first day but
excluding the last day).
SECTION 2.15. Withholding Tax Exemption. At least five Base Rate
-------------------------
Business Days prior to the first date on which interest or fees are payable by
either Borrower hereunder for the account of any Bank, each Bank that is not
incorporated under the laws of the United States of America or a state thereof
agrees that it will deliver to each of the Company and the Agent two duly
completed copies of United States Internal Revenue Service Form 1001 or 4224,
certifying in either case that such Bank is entitled to receive payments from
both Borrowers under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes. Each Bank which so
delivers a Form 1001 or 4224 further undertakes to deliver to each of the
Company and the Agent two additional copies of such form (or a successor form)
on or before the date that such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form so delivered
by it, and such amendments thereto or extensions or renewals thereof as may be
reasonably requested by the Company or the Agent, in each case certifying that
such Bank is entitled to receive payments from both Borrowers under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes, unless an event (including, without limitation, any change
in any treaty, law or regulation or in the interpretation or administration
thereof) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Bank from duly completing and delivering any such form with respect
to it and such Bank advises the Company and the Agent that it is not capable of
receiving such payments without any deduction or withholding of United States
federal income tax.
SECTION 2.16. Regulation D Compensation. For so long as any Bank is
-------------------------
required, or is requested by any applicable regulatory authority, to maintain
and does maintain reserves against "Eurocurrency liabilities" (or any other
category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States
-19-
office of such Bank to United States residents), and as a result the cost to
such Bank (or its Euro-Dollar Lending Office) of making or maintaining its Euro-
Dollar Loans is increased, then such Bank may require the applicable Borrower to
pay, contemporaneously with each payment of interest on the Euro-Dollar Loans
made to such Borrower, additional interest on the related Euro-Dollar Loan of
such Bank for each day on which such Bank maintains such reserves at a rate per
annum up to but not exceeding the excess of (i) (A) the Euro-Dollar Rate
applicable to such Loan divided by (B) one minus the Euro-Dollar Reserve
-----
Percentage for such day over (ii) the Euro-Dollar Rate applicable to such Loan.
Any Bank wishing to require payment of such additional interest (x) shall so
notify the Company and the Agent, in which case such additional interest on the
Euro-Dollar Loans of such Bank shall be payable to such Bank at the place
indicated in such notice with respect to each Interest Period commencing at
least three Euro-Dollar Business Days after the giving of such notice and (y)
shall furnish to the Company at least five Euro-Dollar Business Days prior to
each date on which interest is payable on the Euro-Dollar Loans made to either
Borrower a certificate signed by an officer of such Bank with knowledge of and
responsibility for such matters setting forth the amount to which such Bank is
then entitled from such Borrower under this Section (which shall be consistent
with such Bank's good faith estimate of the level at which the related reserves
are maintained by it) and a reasonable explanation of the basis therefor. Each
such certificate shall be accompanied by such information as the Company may
reasonably request as to the computation set forth therein.
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness. This Agreement shall become effective
-------------
on the date that each of the following conditions shall have been satisfied (or
waived in accordance with Section 9.05):
(a) receipt by the Agent of counterparts hereof signed by each of the
parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Agent in form
satisfactory to it of telegraphic, telex or other written confirmation from
such party of the execution and delivery of a counterpart hereof by such
party);
(b) receipt by the Agent for the account of each Bank of a duly
executed Note of each Borrower dated on or before the Effective Date
complying with the provisions of Section 2.05;
(c) the fact that all amounts payable by the Borrowers on or before
the Effective Date (including the fees payable pursuant to Section 2.08)
shall have been paid in full;
(d) receipt by the Agent of a copy of the Support Agreement,
certified by the Company to be a true and complete copy thereof and to then
be in full force and effect;
-20-
(e) receipt by the Agent of an opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.,
Second Vice President and Counsel of the Company, substantially in the form
of Exhibit D hereto and covering such additional matters relating to the
transactions contemplated hereby as the Required Banks may reasonably
request;
(f) receipt by the Agent of an opinion of Goulston & Storrs, P.C.,
special counsel for the Agent, substantially in the form of Exhibit E
hereto and covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request; and
(g) receipt by the Agent of all documents it may reasonably request
relating to the existence of each Borrower, the corporate authority for and
the validity of this Agreement and the Notes, and any other matters
relevant hereto, all in form and substance satisfactory to the Agent;
provided that this Agreement shall not become effective or be binding on any
--------
party hereto unless all of the foregoing conditions are satisfied not later than
July 31, 1999. The Agent shall promptly notify the Company and the Banks of the
Effective Date, and such notice shall be conclusive and binding on all parties
hereto.
SECTION 3.02. Borrowings. The obligation of any Bank to make a Loan
----------
on the occasion of any Borrowing is subject to the satisfaction of the following
conditions:
(a) receipt by the Agent of a Notice of Borrowing as required by
Section 2.02;
(b) the fact that, immediately after such Borrowing, the aggregate
outstanding principal amount of the Loans will not exceed the aggregate
amount of the Commitments;
(c) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing;
(d) the fact that the representations and warranties of each Borrower
contained in this Agreement (other than, in the case of the demutualization
of the Company, the requirement to be a legal reserve mutual life insurance
company, as set forth in Section 4.01) and, if the Company shall have
executed and delivered a Company Assumption Agreement or a Guarantee
Agreement, in such Company Assumption Agreement or Guarantee Agreement, as
the case may be, shall be true on and as of the date of such Borrowing; and
(e) the fact that (i) the Support Agreement shall not have been
terminated pursuant to Section (8) thereof or otherwise and (ii) a notice
of termination pursuant to Section (9) of the Support Agreement shall not
have been given by either party thereto, unless, in either case, the
Company shall have, prior thereto, executed and delivered a Company
Assumption Agreement or a Guarantee Agreement or JHCC shall have been
terminated as a Borrower hereunder pursuant to Section 9.09.
-21-
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrowers on the date of such Borrowing as to the facts specified in clauses
(b), (c), (d) and (e) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrowers jointly and severally represent and warrant that:
SECTION 4.01. Existence and Power. The Company is a legal reserve
-------------------
mutual life insurance company duly organized in 1862 pursuant to a special act
of the Legislature of the Commonwealth of Massachusetts (the "Special Act") and
is validly existing and in good standing under the laws of the Commonwealth of
Massachusetts, and has all powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted. Each Material Subsidiary is a corporation duly incorporated, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
SECTION 4.02. Authorization; No Contravention. The execution,
-------------------------------
delivery and performance by each Borrower of this Agreement, the Support
Agreement and its Notes are within such Borrower's powers, have been duly
authorized by all necessary action, require no action by or in respect of, or
filing with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or, in
the case of the Company, the Special Act, as amended from time to time, and, in
the case of JHCC, the certificate of incorporation of JHCC, or the by-laws of
such Borrower or of any agreement, judgment, injunction, order, decree or other
instrument binding upon such Borrower or result in or require the creation or
imposition of any Lien on any asset of the Company or any Material Subsidiary.
SECTION 4.03. Binding Effect. Each of this Agreement and, unless the
--------------
Company shall have executed and delivered a Company Assumption Agreement or a
Guarantee Agreement, the Support Agreement constitutes a valid and binding
agreement of each Borrower and the Notes of each Borrower, when executed and
delivered in accordance with this Agreement, will constitute valid and binding
obligations of such Borrower.
SECTION 4.04. Title to Properties. Each Borrower has good and
-------------------
marketable title to its properties, assets and rights of every name and nature
now purported to be owned by it, the absence of which would have a Material
Adverse Effect with respect to either Borrower, free from all liens prohibited
by this Agreement, except for those defects in title and Liens that would not
have a Material Adverse Effect.
-22-
SECTION 4.05. Financial Information.
---------------------
(a) (i) The Annual Statement of the Company as of December 31, 1998,
as filed with the Insurance Department of the Commonwealth of Massachusetts,
together with the related exhibits, schedules and explanations therein contained
or thereto annexed, copies of which have been delivered to each of the Banks,
are a full and true statement of all assets and liabilities and of the condition
and affairs of the Company as of such date and of its income and deductions
therefrom for the year then ended (within the meaning of applicable regulations
and practices of the Insurance Department of the Commonwealth of Massachusetts),
and such Annual Statement is accompanied by an opinion of the Corporate Actuary
of the Company to the effect that the amounts carried in the balance sheet of
the Company contained therein of certain actuarial items (A) are computed in
accordance with commonly accepted actuarial standards consistently applied and
are fairly stated in accordance with sound actuarial principles, (B) are based
on actuarial assumptions which are in accordance with or stronger than those
called for in policy provisions, (C) meet the requirements of the insurance laws
of Massachusetts, (D) make a good and sufficient provision for all unmatured
obligations of the Company guaranteed under the terms of the policies included
in such items, (E) are computed on the basis of assumptions consistent with
those used in computing the corresponding items in the Annual Statement as of
the preceding year end (except as required or permitted under applicable
regulations of the Insurance Department of the Commonwealth of Massachusetts)
and (F) include provision for all actuarial reserves and related statement items
which ought to be established; and (ii) the audited statements of financial
position of the Company as of December 31, 1998 and the related summary of
operations and changes in policyholders' contingency reserves and statement of
cash flows for the fiscal year then ended, reported on by Ernst & Young, a copy
of which has been, in each case, delivered to each of the Banks, fairly present,
in conformity with generally accepted accounting principles and reporting
practices prescribed or permitted by insurance regulatory authorities, the
financial position of the Company at such date and the results of operations and
changes in policyholders' contingency reserves and cash flows of the Company for
such year.
(b) The audited balance sheet of JHCC as of December 31, 1998 and the
related statements of income and retained earnings and cash flows for the fiscal
year then ended, reported on by Ernst & Young, a copy of which has been, in each
case, delivered to each of the Banks, fairly present, in conformity with
generally accepted accounting principles, the financial position of JHCC as of
such date and its results of operations and cash flows for such fiscal year.
(c) The audited consolidated balance sheet of JHSI and its
consolidated subsidiaries as of December 31, 1998 and the related consolidated
statements of operations, shareholder's equity and cash flows for the fiscal
year then ended, reported on by Ernst & Young, a copy of which has been, in each
case, delivered to each of the Banks, fairly present, in conformity with
generally accepted accounting principles, the consolidated financial position of
JHSI and its consolidated subsidiaries as of such date and the consolidated
results of operations and cash flows of JHSI and its consolidated subsidiaries
for such fiscal year.
(d) From but excluding December 31, 1998 through the Effective Date,
there has been no material adverse change in the business, financial position,
results of operations or prospects of either Borrower.
-23-
SECTION 4.06. Litigation. There is no action, suit or proceeding
----------
pending against, or to the knowledge of either Borrower threatened against or
affecting, the Company or any Subsidiary before any court or arbitrator or any
governmental body, agency or official (i) which, if adversely determined, would
have a Material Adverse Effect or a material adverse effect on the ability of
either Borrower to perform its respective obligations under the Support
Agreement or (ii) which in any manner draws into question the validity or
enforceability of this Agreement, the Support Agreement or any of the Notes or,
if it has been executed and delivered, the Company Assumption Agreement or the
Guarantee Agreement.
SECTION 4.07. Compliance with ERISA. (a) Each member of the ERISA
---------------------
Group has (i) fulfilled its obligations under the minimum funding standards of
ERISA and the Internal Revenue Code with respect to each Plan and (ii) is in
compliance in all material respects with the presently applicable provisions of
ERISA and the Internal Revenue Code with respect to each Plan and (b) no member
of the ERISA Group has (i) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Internal Revenue Code
or (iii) incurred any liability under Title IV of ERISA other than a liability
to the PBGC for premiums under Section 4007 of ERISA, except where any failure
to fulfill such obligations or comply with such provisions referred to in clause
(a) above or any such waiver, failure or liability referred to in clause (b)
above would not, alone or in the aggregate, have a Material Adverse Effect.
SECTION 4.08. Compliance with Laws. Each Borrower and each Material
--------------------
Subsidiary is in compliance with all applicable laws, including, without
limitation, all Environmental Laws, except where any failure to comply with any
such laws would not, alone or in the aggregate, have a Material Adverse Effect.
SECTION 4.09. Taxes. Each member of the Tax Group has filed all
-----
United States Federal income tax returns and all other material tax returns
which are required to be filed by it and has paid all taxes due pursuant to such
returns or pursuant to any assessment received by any member of the Tax Group,
except where the failure to file such returns or pay such taxes would not, alone
or in the aggregate, have a Material Adverse Effect.
SECTION 4.10. No Event of Default. No Default or Event of Default
-------------------
has occurred and is continuing.
SECTION 4.11. Not an Investment Company. The Company is not an
-------------------------
investment company within the meaning of the Investment Company Act of 1940, as
amended. JHCC has been exempted from all provisions of the Investment Company
Act of 1940, as amended, including, without limitation, those relating to the
offering and sale of securities by JHCC, by order of the Securities and Exchange
Commission dated June 26, 1984 issued pursuant to Section 6(c) of such Act, and
such order remains in full force and effect and has not in any way been modified
or amended.
-24-
SECTION 4.12. Full Disclosure. All information heretofore furnished
---------------
by either Borrower to all the Banks for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all such information
hereafter furnished by either Borrower to all the Banks will be, true and
accurate in all material respects on the date as of which such information is
stated or certified. The Borrowers have disclosed to the Banks in writing any
and all matters concerning the Borrowers (other than general economic, political
and insurance-industry-wide conditions) which could reasonably be expected to
result in a Material Adverse Effect or which materially and adversely affect or
could reasonably be expected to affect materially and adversely (to the extent
either Borrower can now reasonably foresee) the ability of either Borrower to
perform its obligations under the Support Agreement. As of the Effective Date,
the Borrowers have disclosed to the Banks in writing any and all matters
concerning the Borrowers (other than general economic, political and insurance-
industry-wide conditions) which materially and adversely affect or could
reasonably be expected to affect materially and adversely (to the extent either
Borrower can reasonably foresee as of the Effective Date) the business, results
of operations or financial condition of the Company and the Material
Subsidiaries, taken as a whole.
SECTION 4.13. Year 2000 Compliance. Each Borrower has (i) reviewed
--------------------
the areas within its business and operations which could be adversely affected
by failure to become Year 2000 Compliant; (ii) developed a detailed plan and
timetable to become Year 2000 Compliant in a timely manner; and (iii) committed
adequate resources to supports its Year 2000 plan. Based upon such review and
plan each Borrower reasonably believes that it is Year 2000 Compliant or that it
will become Year 2000 Compliant on a timely basis, except to the extent that a
failure to do so will not have a Material Adverse Effect with respect to such
Borrower.
ARTICLE V
COVENANTS
The Borrowers jointly and severally agree that, so long as any Bank
has any Commitment hereunder or any amount payable under any Note remains
unpaid:
SECTION 5.01. Information. The Company will deliver to each of the
-----------
Banks:
(a) as soon as available and in any event within 90 days after the
end of each fiscal year of the Company,
(i) the Annual Statement of the Company as of the end of such
fiscal year, as filed with (and in the form required under applicable
law and regulations of) the Insurance Department of the Commonwealth
of Massachusetts (x) accompanied by an opinion of the Corporate
Actuary of the Company covering amounts carried on the balance sheet
of certain actuarial items of the Company in the form required under
applicable law and regulations of the Insurance Department of the
Commonwealth of Massachusetts and (y) certified
-25-
by a Senior Financial Officer of the Company on behalf of the Company
as to consistency with respect to accounting and actuarial policies
and that such Annual Statement is a full and true statement of all the
assets and liabilities and of the condition and affairs of the Company
as of the end of such fiscal year and of its income and deductions
therefrom for such fiscal year (within the meaning of applicable
regulations and practices of the Insurance Department of the
Commonwealth of Massachusetts); and
(ii) the audited statements of financial position of the
Company as of the end of such fiscal year and the related audited
summary of operations and changes in policyholders' contingency
reserves and statement of cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous
fiscal year, all reported on by Ernst & Young or other independent
public accountants of nationally recognized standing without
qualification as to the scope of the audit performed or any material
weakness noted in the Company's system of internal controls;
(b) unless JHCC shall have been terminated as a Borrower hereunder
pursuant to Section 9.09, as soon as available and in any event within 90 days
after the end of each fiscal year of JHCC, the audited balance sheet of JHCC as
of the end of such fiscal year and the related audited statements of income and
retained earnings and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, all reported
on by Ernst & Young or other independent public accountants of nationally
recognized standing without qualification as to the scope of the audit performed
or any material weakness noted in JHCC's system of internal controls;
(c) as soon as available and in any event within 45 days after the
end of each of the first three quarters of each fiscal year of the Company, the
Quarterly Statement of the Company as of the end of such quarter, as filed with
the Insurance Department of the Commonwealth of Massachusetts, certified
(subject to year-end accounting and actuarial adjustments) on behalf of the
Company by a Senior Financial Officer of the Company as to consistency with
respect to accounting and actuarial policies and that such Quarterly Statement
is a full and true statement of all the assets and liabilities and of the
condition and affairs of the Company as of the end of such quarter, and of its
income and deductions therefrom for such quarter and for the portion of the
Company's fiscal year ended at the end of such quarter (within the meaning of
applicable regulations and practices of the Insurance Department of the
Commonwealth of Massachusetts);
(d) unless JHCC shall have been terminated as a Borrower hereunder
pursuant to Section 9.09, as soon as available and in any event within 45 days
after the end of each of the first three quarters of each fiscal year of JHCC,
the unaudited balance sheet of JHCC as of the end of such quarter and the
related unaudited statements of income for the portion of JHCC's fiscal year
ended at the end of such quarter, all certified (subject to normal year-end
adjustments) as to fairness of presentation, generally accepted accounting
principles and consistency, in each case by a Senior Financial Officer of JHCC;
-26-
(e) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (c) above, a certificate of a Senior
Financial Officer of the Company (i) setting forth in reasonable detail the
calculations required to establish whether the Borrowers were in compliance with
the requirements of Sections 5.08 and 5.09 on the date of such financial
statements and (ii) stating whether any Default exists on the date of such
certificate and, if any Default then exists, setting forth the details thereof
and the action which the Borrowers are taking or propose to take with respect
thereto;
(f) within 15 days after any Senior Financial Officer of either
Borrower obtains knowledge of any Default, if such Default is then continuing, a
certificate of a Senior Financial Officer of the Company setting forth the
details thereof and the action which the Borrowers are taking or propose to take
with respect thereto;
(g) promptly upon the mailing thereof to the policyholders of the
Company generally and, following the demutualization of the Company, to the
shareholders of the public holding company of the Company, copies of all
financial statements, reports and proxy statements so mailed;
(h) promptly upon the filing thereof, (i) in addition to the Annual
Statement and Quarterly Statement referred to in clauses (a) (i) and (c) above,
copies of all other financial statements of the Company filed with the Insurance
Department of the Commonwealth of Massachusetts, and (ii) copies of all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent), including without limitation the
preliminary and final prospectuses for an initial public offering of the
Company, and all reports on Forms 10-K, 10-Q and 8-K (or their equivalents), if
any, which the Company or, unless JHCC shall have been terminated as a Borrower
hereunder pursuant to Section 9.09, JHCC shall have filed with the Securities
and Exchange Commission with respect to debt securities or preferred or common
stock issued by the Company or JHCC, as the case may be;
(i) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement or makes any
amendment to any Plan or Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a
-27-
bond or other security, a certificate of a Senior Financial Officer of the
Company setting forth details as to such occurrence and action, if any, which
the Company or applicable member of the ERISA Group is required or proposes to
take; and
(j) from time to time such additional information regarding the
financial position, results of operations or business of the Borrowers as the
Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Maintenance of Property; Insurance.
----------------------------------
(a) Each Borrower will keep, and the Company will cause each Material
Subsidiary to keep, all property material to their respective businesses in good
working order and condition, ordinary wear and tear excepted.
(b) Each Borrower will maintain, and the Company will cause each
Material Subsidiary to maintain (in the name of such Borrower or in such
Material Subsidiary's own name, as applicable), with financially sound and
responsible insurance companies, insurance on all their respective properties
and against such other risks, in each case in at least such amounts (and with
such risk retentions) as are usually insured against by companies of established
repute engaged in the same or a similar business.
SECTION 5.03. Conduct of Business and Maintenance of Existence. Each
------------------------------------------------
Borrower will continue, and the Company will cause each Material Subsidiary to
continue, to engage in business of the same general type as now conducted by
such Borrower and such Material Subsidiary, as the case may be, and each
Borrower will preserve, renew and keep in full force and effect, and the Company
will cause each Material Subsidiary to preserve, renew and keep in full force
and effect, its existence and its rights, privileges and franchises which are
material to the conduct of such business; provided that nothing in this Section
--------
shall prohibit:
(a) any consolidation or merger of either Borrower permitted under
Section 5.12(i);
(b) any sale, lease or transfer of assets by JHCC permitted under
Section 5.12(ii);
(c) the consolidation or merger of a Material Subsidiary (other than
JHCC, unless JHCC shall have been terminated as a Borrower hereunder pursuant to
Section 9.09) with or into another Person, if, after giving effect thereto, no
Default shall have occurred and be continuing;
(d) the termination of the existence of a Material Subsidiary:
(i) pursuant to clause (a) or (c) above;
-28-
(ii) in the case of JHCC (if JHCC is at such time a Borrower),
if the Company shall have executed and delivered a Company
Assumption Agreement;
(iii) in the case of any other Material Subsidiary (and, if JHCC
has been terminated as a Borrower hereunder pursuant to Section
9.09 and is at the applicable time a Material Subsidiary, JHCC),
if after giving effect thereto, no Default shall have occurred
and be continuing; or
(e) the conversion of the Company from a mutual life insurance
company to a stock life insurance company (i.e., demutualization), provided that
the Company remains in compliance with all of the other covenants and other
provisions of this Agreement (other than the requirement to be a legal reserve
mutual life insurance company, as set forth in Section 4.01).
SECTION 5.04. Compliance with Laws. Each Borrower will comply, and
--------------------
the Company will cause each Material Subsidiary to comply, in all material
respects with all applicable laws, ordinances, rules, regulations and
requirements of governmental authorities (including, without limitation,
Environmental Laws and the rules, regulations and requirements thereunder),
except where a failure to comply therewith would not, alone or in the aggregate,
have a Material Adverse Effect.
SECTION 5.05. Compliance with ERISA. Each Borrower will fulfill, and
---------------------
the Company will cause each member of the ERISA Group to fulfill, its
obligations under the minimum funding standards of ERISA and the Internal
Revenue Code with respect to each Plan, and each Borrower will comply, and the
Company will cause each member of the ERISA Group to comply, with all applicable
provisions of ERISA and the Internal Revenue Code with respect to each Plan,
except where such failure or non-compliance, alone or in the aggregate, would
not have a Material Adverse Effect.
SECTION 5.06. Taxes. Each member of the Tax Group will file all
-----
United States Federal income tax returns and all other material tax returns
which are required to be filed by it and will pay all taxes due pursuant to such
returns or pursuant to any assessment received by it, except where a failure to
file any such returns or pay any such taxes would not, alone or in the
aggregate, have a Material Adverse Effect.
SECTION 5.07. Subsidiary Debt. The Company will not permit any
---------------
Subsidiary to incur, assume or at any time be liable with respect to any Debt
except:
(a) Debt of JHCC under this Agreement and the Notes;
(b) Debt, the proceeds of which are on-lent to the Company;
(c) Debt owing to the Company or any other Subsidiary of the
Company or any combination thereof;
(d) Permitted Collateralization Obligations;
-29-
(e) Debt of Excluded Subsidiaries; and
(f) Debt not otherwise permitted by the foregoing clauses of
this Section so long as the aggregate principal amount of such
Debt outstanding at any time, together with the aggregate
principal amount then outstanding of Debt secured by Liens
permitted by clause (j) of Section 5.10, does not exceed
$6,000,000,000.
SECTION 5.08. Management Surplus. The Company will not, at any time,
------------------
permit Management Surplus to be less than $3,750,000,000.
SECTION 5.09. Capitalization Ratio. The Company will not, at any
--------------------
time, permit Management Surplus to be less than 5% of the assets of the Company
(other than assets held in separate accounts of the Company).
SECTION 5.10. Company Negative Pledge. The Company shall not create,
-----------------------
assume or suffer to exist any Lien on any asset now owned or hereafter acquired
by it (other than assets held in separate accounts of the Company), except:
(a) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset,
provided that such Lien attaches to such asset concurrently with or within 90
--------
days after the acquisition thereof;
(b) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into the Company and not
created in contemplation of such event;
(c) any Lien existing on any asset prior to the acquisition thereof
by the Company and not created in contemplation of such acquisition;
(d) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that such Debt is not increased and is not
--------
secured by any additional assets;
(e) Liens on Permitted Collateralization Assets;
(f) Liens, if any, arising out of loans of securities, in the
ordinary course of the investment business of the Company;
(g) any Liens arising in connection with policies or contracts of
insurance, funding agreements and other similar contracts entered into in the
ordinary conduct of the insurance business of the Company;
(h) easements, rights-of-way and similar Liens on real property that
do not in the aggregate materially impair the Company's use of such property;
-30-
(i) Liens not otherwise permitted by the foregoing clauses of this
Section which (i) do not secure Debt and (ii) do not secure obligations in an
aggregate amount exceeding $5,000,000,000; and
(j) Liens that secure Debt and that are not otherwise permitted by
the foregoing clauses of this Section, so long as the aggregate principal amount
at any time outstanding of the Debt secured thereby (together with the aggregate
principal amount then outstanding of Debt permitted by clause (f) of Section
5.07) does not exceed $6,000,000,000.
SECTION 5.11. JHCC Negative Pledge. Unless JHCC shall have been
--------------------
terminated as a Borrower hereunder pursuant to Section 9.09, JHCC will not
create, assume or suffer to exist any Lien that secures Debt on any asset now
owned or hereafter acquired by it unless it shall make or cause to be made
effective provision whereby the obligations of JHCC hereunder and under its
Notes shall be secured equally and ratably with all other obligations secured
thereby; and, if such provision is not made, and notwithstanding that such
failure constitutes an Event of Default, an equitable Lien, equally and ratably
securing the obligations of JHCC hereunder and under its Notes, shall exist, to
the extent permitted by law, on such asset.
SECTION 5.12. Consolidations, Mergers and Sales of Assets. Neither
-------------------------------------------
Borrower will (i) consolidate or merge with or into any other Person, except
that:
(a) JHCC may consolidate or merge with or into (A) the Company if the
Company is the surviving corporation or (B) another Subsidiary if (1) JHCC is
the surviving corporation or (2) (x) prior thereto, the Company shall have
executed and delivered a Company Assumption Agreement or (y) the Subsidiary that
is the surviving corporation shall assume all of the obligations of JHCC
hereunder and under the Notes and either (I) the Company agrees in writing that
such Subsidiary shall have all of the benefits of the Support Agreement and that
all of the obligations of such Subsidiary hereunder and under the Notes shall
constitute Covered Credit (as defined in Section (5) of the Support Agreement)
and that the Agent, each of the Banks and each holder from time to time of any
Note issued by JHCC and assumed by such Subsidiary or issued by such Subsidiary
shall constitute a Covered Creditor (as so defined) or (II) the Company executes
a Guarantee Agreement modified in such manner as shall be satisfactory to the
Required Banks to reflect the fact that such Subsidiary shall thereafter be a
Borrower hereunder; provided that after giving effect thereto, no Default shall
--------
have occurred and be continuing; and
(b) the Company may consolidate or merge with or into any other
Person so long as the Company shall be the surviving corporation and, after
giving effect thereto, no Default shall have occurred and be continuing; or
(ii) sell, lease or otherwise transfer, directly or indirectly, all or
substantially all of its assets to any other Person except, in the case of JHCC,
to the Company.
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SECTION 5.13. Support Agreement; Company Assumption Agreement;
------------------------------------------------
Guarantee Agreement.
-------------------
(a) No term or provision of the Support Agreement shall be amended,
modified, waived or supplemented, and the Support Agreement shall not be
terminated, novated or otherwise changed, without the express prior written
consent of the Required Banks unless, prior thereto, the Company shall have
executed and delivered a Company Assumption Agreement or a Guarantee Agreement
or JHCC shall have been terminated as a Borrower hereunder pursuant to Section
9.09.
(b) The Company and JHCC hereby expressly agree with each other, the
Agent, the Banks and the holders from time to time of the Notes that (i) the
benefits of the Support Agreement shall extend to the Banks, the Agent and the
holders from time to time of the Notes with respect to all obligations of JHCC
hereunder or under the Notes, in either case whether now existing or hereafter
arising, (ii) all of the obligations of JHCC hereunder or under the Notes, in
either case whether now existing or hereafter arising, constitute Covered Credit
(as defined in Section (5) of the Support Agreement) and the Agent, each of the
Banks and each holder from time to time of any Note issued by JHCC constitutes a
Covered Creditor (as so defined) and (iii) so long as any Bank has any
Commitment hereunder, the Company will not terminate the Support Agreement,
pursuant to Section (8) or (9) thereof or otherwise, unless, prior thereto, the
Company shall have executed and delivered a Company Assumption Agreement or a
Guarantee Agreement or JHCC shall have been terminated as a Borrower hereunder
pursuant to Section 9.09.
(c) If the Company shall have executed and delivered a Company
Assumption Agreement or a Guarantee Agreement, no term or provision of such
Company Assumption Agreement or Guarantee Agreement, as the case may be, shall
be amended, modified, waived or supplemented, and such Company Assumption
Agreement or Guarantee Agreement, as the case may be, shall not be terminated,
novated or otherwise changed, without the express prior written consent of the
Required Banks.
SECTION 5.14. Use of Proceeds.
---------------
(a) The proceeds of the Loans made under this Agreement will be used
for general corporate purposes (including the back-up of commercial paper) of
the Borrowers and their Subsidiaries in the ordinary course of business.
(b) None of such proceeds will be used, directly or indirectly, for
the purpose, whether immediate, incidental or ultimate, of buying or carrying
any "margin stock", within the meaning of Regulation U, in violation of the
Securities Exchange Act of 1934, as amended, or the applicable margin
regulations of the Board of Governors of the Federal Reserve System, in each
case as in effect from time to time, and following the application by the
applicable Borrower of such proceeds, the value of all "margin stock" owned by
such Borrower (other than, in the case where the Company is the Borrower,
"margin stock" held in separate accounts of the Company) will not exceed 25% of
the assets of such Borrower (other than, in the case where the Company is the
Borrower, assets held in separate accounts of the Company).
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ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following
------------------
events ("Events of Default") shall have occurred and be continuing:
(a) either Borrower shall fail to pay when due any principal of any
Loan, or shall fail to pay within five days of the due date thereof any
interest, fees or other amount payable hereunder or under the Notes;
(b) either Borrower shall fail to observe or perform any covenant
contained in Sections 5.07 through 5.13, inclusive, and 5.14(b);
(c) either Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause
(a) or (b) above) for 30 days after written notice thereof has been given
to the Company by the Agent at the request of any Bank and for an
additional 60 days thereafter if the Borrowers are diligently proceeding to
cure such failure;
(d) any representation or warranty made, or deemed made pursuant to
Section 3.02, by either Borrower hereunder shall prove to have been
incorrect in a material respect as of the date when made, or deemed made
pursuant to Section 3.02, and shall continue to be incorrect in a material
respect at the time it is discovered to have been incorrect;
(e) any event or condition shall occur and continue which (A) results
in the acceleration of the maturity of any Material Debt of the Borrowers
prior to the date such Material Debt would otherwise be due and payable,
which acceleration has not been waived, revoked, rescinded or annulled, or
(B) enables (without further notice or opportunity to cure) the holder or
holders of any such Material Debt or any Person acting on such holder's or
holders' behalf to accelerate the maturity thereof or (ii) the principal
amount of any such Material Debt shall otherwise be due in full and not
paid;
(f) any event or condition shall occur and continue which results in
the acceleration of the maturity of any Material Debt of any Subsidiaries
(other than JHCC, unless JHCC shall have been terminated as a Borrower
hereunder pursuant to Section 9.09, or any Excluded Subsidiary), prior to
the date such Material Debt would otherwise be due and payable, which
acceleration has not been waived, revoked, rescinded or annulled, or the
principal amount of any such Material Debt shall otherwise be due in full
and not paid;
(g) the Support Agreement shall cease for any reason to be in full
force and effect or either party thereto shall so assert in writing,
unless, prior thereto, the Company
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shall have executed and delivered a Company Assumption Agreement or a
Guarantee Agreement or JHCC shall have been terminated as a Borrower
hereunder pursuant to Section 9.09;
(h) either Borrower shall fail for any reason to remain in compliance
with the terms of, or perform its obligations under, the Support Agreement,
unless, prior thereto, the Company shall have executed and delivered a
Company Assumption Agreement or a Guarantee Agreement or JHCC shall have
been terminated as a Borrower hereunder pursuant to Section 9.09;
(i) either Borrower or any Material Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, rehabilitation,
conservatorship, reorganization or other relief with respect to itself or
its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, rehabilitator, conservator, custodian or other similar official
of it or any substantial part of its property, or shall consent to any such
relief or to the appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced against it, or shall
make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing;
(j) an involuntary case or other proceeding shall be commenced
against either Borrower or any Material Subsidiary seeking liquidation,
rehabilitation, conservatorship, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, rehabilitator, conservator, custodian or
other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 90 days; or an order for relief shall be entered
against either Borrower or any Material Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(k) any member or members of the ERISA Group shall fail to pay when
due an amount or amounts aggregating in excess of $75,000,000 which it or
they shall have become liable to pay under Title IV of ERISA with respect
to a Plan; or notice of intent to terminate a Material Plan shall be filed
under Title IV of ERISA by any member of the ERISA Group, any plan
administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect
of, or to cause a trustee to be appointed to administer any Material Plan;
or a condition shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any Material Plan must be terminated; or
there shall occur a complete or partial withdrawal from, or a default,
within the meaning of Section 4219(c) (5) of ERISA, with respect to, one or
more Multiemployer Plans which could cause one or more members of the ERISA
Group to incur current payment obligations in excess of $75,000,000 in the
aggregate;
-34-
(l) one or more judgments or orders for the payment of money in
excess of $250,000,000 in the aggregate shall be rendered against the
Company or any Material Subsidiary and such judgments or orders shall
continue unsatisfied and unstayed for a period of 10 days;
(m) any Person or group of related Persons shall have obtained
(whether after the demutualization of the Company or otherwise) the right
to vote more than 30% of the voting rights for the election of directors of
the Company;
(n) JHCC shall cease for any reason to be a wholly owned Subsidiary,
unless (i) JHCC shall have been consolidated or merged with or into the
Company or the Company shall have executed and delivered a Company
Assumption Agreement, in either case in accordance with the terms hereof,
or (ii) JHCC shall have been terminated as a Borrower hereunder pursuant to
Section 9.09;
(o) if the Company shall have executed and delivered a Company
Assumption Agreement or a Guarantee Agreement, such Company Assumption
Agreement or Guarantee Agreement, as the case may be, shall cease for any
reason to be in full force and effect or the Company shall so assert in
writing; or
(p) if the Company shall have executed and delivered a Company
Assumption Agreement or a Guarantee Agreement, the Company shall fail for
any reason to remain in compliance with the terms of, or perform its
obligations under, such Company Assumption Agreement or Guarantee
Agreement, as the case may be;
then, and in every such event, the Agent shall (i) if requested by Banks having
more than 50% in aggregate amount of the Commitments, by notice to the Borrowers
terminate the Commitments and they shall thereupon terminate, and (ii) if
requested by Banks holding Notes evidencing more than 50% in aggregate principal
amount of the Loans, by notice to the Borrowers declare the Notes (together with
accrued interest thereon) to be, and the Notes (together with accrued interest
thereon) shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Borrower; provided that in the case of any of the Events
--------
of Default specified in clause (i) or (j) above with respect to either Borrower,
without any notice to either Borrower or any other act by the Agent or the
Banks, the Commitments shall thereupon terminate and the Notes (together with
accrued interest thereon) shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Borrower. After an Event of Default, each Euro-Dollar
Margin shall be increased by 200 basis points.
SECTION 6.02. Notice of Default. The Agent shall give notice to the
-----------------
Company under Section 6.01(c) promptly upon being requested to do so by any Bank
and shall thereupon notify all the Banks thereof.
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ARTICLE VII
THE AGENT
SECTION 7.01. Appointment and Authorization. Each Bank irrevocably
-----------------------------
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the Notes as are delegated to
the Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
SECTION 7.02. Agent and Affiliates. BankBoston, N.A. (and any
--------------------
successor by merger) shall have the same rights and powers under this Agreement
as any other Bank and may exercise or refrain from exercising the same as though
it were not the Agent, and BankBoston, N.A. (and any successor by merger) 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 any affiliate of any
thereof as if it were not the Agent hereunder.
SECTION 7.03. Action by Agent. The obligations of the Agent
---------------
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Agent shall not be required to take any action
with respect to any Default, except as expressly provided in Article VI.
SECTION 7.04. Consultation with Experts. The Agent may consult with
-------------------------
legal counsel (who may be counsel for either Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
SECTION 7.05. Liability of Agent. Neither the Agent nor any of its
------------------
directors, officers, agents or employees shall be liable for any action taken or
not taken by it in connection herewith (i) with the consent or at the request of
the Required Banks or (ii) in the absence of its own gross negligence or willful
misconduct. Neither the Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection with
this Agreement or any borrowing hereunder; (ii) the performance or observance of
any of the covenants or agreements of either Borrower; (iii) the satisfaction of
any condition specified in Article III, except receipt of items required to be
delivered to the Agent; or (iv) the validity, effectiveness or genuineness of
this Agreement, the Notes or any other instrument or writing furnished in
connection herewith. The Agent shall not incur any liability by acting in
reliance upon any notice, consent, certificate, statement or other writing
(which may be a bank wire, telex, facsimile transmission or similar writing)
believed by it to be genuine or to be signed by the proper party or parties.
SECTION 7.06. Indemnification. Each Bank shall, ratably in
---------------
accordance with its Commitment, indemnify the Agent (to the extent not
reimbursed by the Borrowers) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from the Agent's gross negligence or willful misconduct) that the Agent
may suffer or incur in connection with this Agreement or any action taken or
omitted by the Agent hereunder.
-36-
SECTION 7.07. Credit Decision. Each Bank acknowledges that it has,
---------------
independently and without reliance upon the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
SECTION 7.08. Successor Agent. The Agent may resign at any time by
---------------
giving written notice thereof to the Banks and the Company. Upon any such
resignation, the Required Banks shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed by the Required
Banks, and shall have accepted such appointment, within 30 days after the
retiring Agent gives notice of resignation, then the retiring Agent may, on
behalf of the Banks, appoint a successor Agent, which shall be a commercial bank
organized or licensed under the laws of the United States of America or of any
State thereof and having a combined capital and surplus of at least $50,000,000.
Upon the acceptance of its appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Article shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent.
SECTION 7.09. Agent's Fee. The Company shall pay to the Agent for
-----------
its own account fees in the amounts and at the times previously agreed upon in
writing between the Company and the Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
-------------------------------------------------
Unfair. If on or prior to the first day of any Interest Period for any Euro-
------
Dollar Loan:
(a) the Agent is advised by the Euro-Dollar Reference Banks that
deposits in dollars (in the applicable amounts) are not being offered to
the Euro-Dollar Reference Banks in the relevant market for such Interest
Period, or
(b) Banks having 50% or more of the aggregate principal amount of the
affected Loans advise the Agent that the Euro-Dollar Rate, as determined by
the Agent, will not adequately and fairly reflect the cost to such Banks of
funding their Euro-Dollar Loans for such Interest Period, the Agent shall
forthwith give notice thereof to the Company and the Banks, whereupon until
the Agent notifies the Company that the circumstances giving rise to such
suspension no longer exist, (i) the obligations of the Banks to make Euro-
Dollar Loans, or to convert outstanding Loans into Euro-Dollar
-37-
Loans, shall be suspended and (ii) each outstanding Euro-Dollar Loan shall
be converted into a Base Rate Loan on the last day of the then current
Interest Period applicable thereto. Unless a Borrower notifies the Agent at
least two Base Rate Business Days before the date of any Euro-Rate
Borrowing for which a Notice of Borrowing has previously been given by such
Borrower that it elects not to borrow on such date, such Borrowing shall
instead be made as a Base Rate Borrowing.
SECTION 8.02. Illegality. If, on or after the date of this
----------
Agreement, the adoption of any applicable law, rule or regulation, or any change
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 Bank (or its
Euro-Dollar Lending Office) with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency shall
make it unlawful or impossible for any Bank (or its Euro-Dollar Lending Office)
to make, maintain or fund its Euro-Dollar Loans to either Borrower and such Bank
shall so notify the Agent, the Agent shall forthwith give notice thereof to the
other Banks and the Company, whereupon until such Bank notifies the Company and
the Agent that the circumstances giving rise to such suspension no longer exist,
the obligation of such Bank to make Euro-Dollar Loans to such Borrower, or to
convert outstanding Loans made to such Borrower into Euro-Dollar Loans, shall be
suspended. Before giving any notice to the Agent pursuant to this Section, such
Bank shall designate a different Euro-Dollar Lending Office if such designation
will avoid the need for giving such notice and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank.
SECTION 8.03. Increased Cost and Reduced Return.
---------------------------------
(a) If on or after the date hereof, in the case of any Committed Loan
or any obligation to make Committed Loans, the adoption of any applicable law,
rule, regulation or treaty, 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 Bank (or its Applicable Lending Office) 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 Bank (or its Applicable Lending Office) to
any tax, duty or other charge with respect to its Euro-Dollar Loans, its
Notes or its obligation to make Euro-Dollar Loans, or shall change the
basis of taxation of payments to any Bank (or its Applicable Lending
Office) of the principal of or interest on its Euro-Dollar Loans or any
other amounts due under this Agreement in respect of its Euro-Dollar Loans
or its obligation to make Euro-Dollar Loans (except for changes in the rate
of tax imposed, or the imposition of tax, on the overall net income of such
Bank or its Applicable Lending Office imposed by the jurisdiction in which
such Bank's principal executive office or Applicable Lending Office is
located); or
(ii) shall impose, modify or deem applicable any reserve (including,
without limitation, any such requirement imposed by the Board of Governors
of the Federal
-38-
Reserve System, but excluding with respect to any Euro-Dollar Loan any such
requirement with respect to which such Bank is entitled to compensation
during the relevant Interest Period under Section 2.16), special deposit,
insurance assessment or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Bank (or its
Applicable Lending Office) or shall impose on any Bank (or its Applicable
Lending Office) or on the United States market for certificates of deposit
or the London interbank market or other eurodollar interbank market
selected by the Agent any other condition affecting its Euro-Dollar Loans,
its Notes or its obligation to make Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making or maintaining any Euro-Dollar Loan, or
to reduce the amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under its Note with respect
thereto, by an amount deemed by such Bank to be material, then, within 15 days
after demand by such Bank (with a copy to the Agent), the applicable Borrower
shall pay to such Bank such additional amount or amounts as will compensate such
Bank for such increased cost or reduction.
(b) Without duplication of any amounts paid under subsection (a)
above or amounts for which any Bank is entitled to compensation during the
relevant Interest Period under Section 2.16, if any Bank shall have determined
that, after the date hereof, the adoption of any applicable law, rule or
regulation regarding capital adequacy, 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 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 capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within 15 days after
demand by such Bank (with a copy to the Agent), the applicable Borrower shall
pay to such Bank such additional amount or amounts as will compensate such Bank
(or its Parent) for such reduction.
(c) Each Bank will promptly notify the Company and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder that is signed by an officer of such Bank
with knowledge of and responsibility for such matters and that sets forth such
amount or amounts and a reasonable explanation of the basis therefor shall be
conclusive in the absence of manifest error. In determining such amount, such
Bank may use any reasonable averaging and attribution methods.
-39-
SECTION 8.04. Base Rate Loans Substituted for Affected Euro-Dollar
----------------------------------------------------
Loans. If (i) the obligation of any Bank to make or maintain Euro-Dollar Loans
-----
to either Borrower has been suspended pursuant to Section 8.02 or (ii) any Bank
has demanded compensation under Section 8.03(a) or 2.16 and the Company shall,
by at least five Euro-Dollar Business Days' prior notice to such Bank through
the Agent, have elected that the provisions of this Section shall apply to such
Bank, then, unless and until such Bank notifies the Company that the
circumstances giving rise to such suspension or demand for compensation no
longer apply:
(a) all Loans to such Borrower which would otherwise be made by such
Bank as (or continued as or converted into) Euro-Dollar Loans shall instead be
Base Rate Loans (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans to such Borrower has been
repaid (or converted to a Base Rate Loan), all payments of principal which would
otherwise be applied to repay such Euro-Dollar Loans shall be applied to repay
its Base Rate Loans instead.
If such Bank notifies the Company that the circumstances giving rise
to such notice no longer apply, the principal amount of each such Base Rate Loan
shall be subject to the provisions of Section 2.10 in the same manner as the
Euro-Dollar Loans in the Group of Loans in which such Base Rate Loan is
included, effective as of the first day of the next succeeding Interest Period
applicable thereto.
SECTION 8.05. Substitution of Bank. If (i) the obligation of any
--------------------
Bank to make Euro-Dollar Loans to either Borrower has been suspended pursuant to
Section 8.02 or (ii) any Bank has demanded compensation from either Borrower
under Section 8.03 or 2.16, the Company shall have the right (a) with the
assistance of and upon consultation with the Agent, to seek a substitute bank or
banks (which may be one or more of the Banks) to purchase the Notes and assume
the Commitment of such Bank or (b) to terminate the Commitment of such Bank;
provided that after giving effect to such termination, the aggregate Commitments
--------
terminated pursuant to this subsection (b) do not exceed 20% of the initial
aggregate amount of the Commitments (with appropriate adjustments to take
account of optional reductions of Commitments pursuant to Section 2.09).
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other
-------
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (x) in the case of either Borrower or the Agent, at its address or telex
or facsimile transmission number set forth on the signature pages hereof, (y) in
the case of any Bank, at its address or telex or facsimile transmission number
set forth in its Administrative Questionnaire or (z) in the case of any party,
such other address or telex or facsimile transmission number as such party may
hereafter specify for the purpose by notice to
-40-
the Agent and the Company. Each such notice, request or other communication
shall be effective (i) if given by telex, when such telex is transmitted to the
telex number specified in or pursuant to this Section and the appropriate answer
back is received, (ii) if given by mail, 72 hours after such communication is
deposited in the mails with first class postage prepaid, addressed as aforesaid
or (iii) if given by any other means, when delivered at the address specified in
or pursuant to this Section; provided that notices to the Agent under Article II
--------
or Article VII I, certificates as to the Authorized Officers of any Borrower and
notices designating a new Designated Deposit Account shall not be effective
until received.
SECTION 9.02. No Waivers. No failure or delay by the Agent or any
----------
Bank in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise hereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes; Indemnification. (a) The
--------------------------------------------
Company shall pay (i) all reasonable and documented out-of-pocket expenses of
the Agent, including all reasonable and documented fees and disbursements of
special counsel for the Agent, in connection with the preparation of this
Agreement, any waiver or consent hereunder or any amendment hereof or any
Default or alleged Default hereunder and (ii) if an Event of Default occurs, all
reasonable and documented out-of-pocket expenses incurred by the Agent and each
Bank, including reasonable fees and disbursements of counsel, in connection with
such Event of Default and collection, bankruptcy, insolvency and other
enforcement proceedings resulting therefrom. The Company will indemnify each
Bank against any transfer taxes, documentary taxes, assessments or charges made
by any governmental authority by reason of the execution and delivery of this
Agreement or the original issuance of any Note.
(b) The Company agrees to indemnify the Agent and each Bank and hold
the Agent and each Bank harmless from and against any and all liabilities,
losses, damages, costs and expenses of any kind, including, without limitation,
the reasonable and documented fees and disbursements of counsel, which may be
incurred by any Bank or by the Agent in connection with its actions as Agent
hereunder in connection with any investigative, administrative or judicial
proceeding (whether or not the Agent or such Bank shall be designated a party
thereto) relating to or arising out of this Agreement or any actual or proposed
use of proceeds of Loans hereunder; provided that neither the Agent nor any Bank
--------
shall have the right to be indemnified hereunder for its own gross negligence or
willful misconduct as determined by a court of competent jurisdiction
SECTION 9.04. Sharing of Set-Offs. Each Bank agrees that if it
-------------------
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to any Note of a Borrower held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest due with respect to any Note of such Borrower held by
such other Bank, the Bank receiving such proportionately greater payment shall
purchase such participations in the Notes of such Borrower held by the other
Banks, and such other adjustments shall be made, as may be required so that all
such payments of principal and interest with respect
-41-
to the Notes of such Borrower held by the Banks shall be shared by the Banks pro
rata; provided that nothing in this Section shall impair the right of any Bank
--------
to exercise any right of set-off or counterclaim it may have and to apply the
amount subject to such exercise to the payment of indebtedness of such Borrower
other than its indebtedness under the Notes. Each Borrower agrees, to the
fullest extent it may effectively do so under applicable law, that any holder of
a participation in a Note of such Borrower, whether or not acquired pursuant to
the foregoing arrangements, may exercise rights of set-off or counterclaim and
other rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of such Borrower in the amount of such
participation.
SECTION 9.05. Amendments and Waivers. Any provision of this
----------------------
Agreement or the Notes may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by each Borrower and the Required Banks
(and, if the rights or duties of the Agent are affected thereby, by the Agent);
provided that no such amendment or waiver shall, unless signed by all the Banks,
--------
(i) increase or decrease the Commitment of any Bank (except for a ratable
decrease in the Commitments of all Banks) or subject any Bank to any additional
obligation, (ii) reduce the principal of or rate of interest on any Loan or any
fees hereunder, (iii) postpone the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder or for any reduction or termination
of any Commitment, (iv) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number of Banks, which
shall be required for the Banks or any of them to take any action under this
Section or any other provision of this Agreement or (v) change any of the
provisions of Article VII concerning the Agent's rights, powers and obligations.
SECTION 9.06. Successors and Assigns. (a) The provisions of this
----------------------
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that neither Borrower may
assign or otherwise transfer any of its rights under this Agreement without the
prior written consent of all Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Bank of a
participating interest to a Participant, whether or not upon notice to the
Company and the Agent, such Bank shall remain responsible for the performance of
its obligations hereunder, and the Borrowers and the Agent shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement. Any agreement pursuant to which any Bank
may grant such a participating interest shall provide that such Bank shall
retain the sole right and responsibility to enforce the obligations of the
Borrowers hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; provided
--------
that such participation agreement may provide that such Bank will not agree to
any modification, amendment or waiver of this Agreement described in clause (i),
(ii) or (iii) of Section 9.05 without the consent of the Participant. Each
Borrower agrees that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Article VIII and Section
2.16 with respect to its participating interest. An assignment or other
transfer which is not permitted by subsection (c) or (d) below shall be given
effect for purposes of this Agreement only to the extent of a participating
interest granted in accordance with this subsection (b).
-42-
(c) Any Bank may at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement and the Notes of each Borrower, and
such Assignee shall assume such rights and obligations, pursuant to an
Assignment and Assumption Agreement in substantially the form of Exhibit F
hereto executed by such Assignee and such transferor Bank, with (and subject to)
the subscribed consent of the Borrowers and the Agent (which consent shall not,
in any such case, be unreasonably withheld); provided that (i) no such consent
--------
shall be required if such Assignee is, prior to such assignment, a Bank
hereunder or an Eligible Affiliate of such Bank, (ii) any such assignment shall
be in respect of a portion of such transferor Bank's Commitment in an amount
equal to or greater than $5,000,000 or, if a Bank has a Commitment which is less
than $5,000,000, such assignment shall be in respect of all of the Commitment of
the transferor Bank, and (iii) no such consent shall be required from the
Borrowers if an Event of Default has occurred. Subject to the foregoing, upon
execution and delivery of such instrument and payment by such Assignee to such
transferor Bank of an amount equal to the purchase price agreed between such
transferor Bank and such Assignee, such Assignee shall be a Bank party to this
Agreement and shall have all the rights and obligations of a Bank with a
Commitment (together, if such Assignee is, prior to such assignment, a Bank
hereunder, with such Assignee's previously existing Commitment hereunder) as set
forth in such instrument of assumption, and the transferor Bank shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. Upon the consummation
of any assignment pursuant to this subsection (c), the transferor Bank, the
Agent and the Borrowers shall make appropriate arrangements so that, if
required, new Notes are issued to the Assignee. In connection with any such
assignment, the transferor Bank shall pay to the Agent an administrative fee for
processing such assignment in the amount of $3,500. If the Assignee is not
incorporated under the laws of the United States of America or a state thereof,
it shall, prior to the first date on which interest or fees are payable
hereunder for its account, deliver to the Company and the Agent certification as
to exemption from deduction or withholding of any United States federal income
taxes in accordance with Section 2.15.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Notes to a Federal Reserve Bank. No such
assignment shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's rights
shall be entitled to receive any greater payment under Section 2.16 or 8.03 than
such Bank would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Company's prior written
consent or by reason of the provisions of Section 8.02 or 8.03 requiring such
Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
(f) Notwithstanding anything to the contrary contained herein, any
Bank (a "Granting Bank") may grant to a special purpose funding vehicle (an
"SPC"), identified as such in writing from time to time by the Granting Bank to
the Agent and the Borrower, the option to provide to the Borrower all or any
part of any advance that such Granting Bank would otherwise
-43-
be obligated to make to the Borrower pursuant to this Agreement; provided that
--------
(i) an SPC shall be a Subsidiary or other affiliate of such Granting Bank, (ii)
nothing herein shall constitute a commitment by any SPC to make any advance, and
(iii) nothing herein shall relieve the Granting Bank of any of its obligations
under this Agreement and, if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such advance, the Granting Bank
shall be obligated to make such advance pursuant to the terms hereof. An SPC
shall not become a Bank hereunder or possess rights to vote, rights to receive
notice, or any other rights under this Agreement. The making of an advance by an
SPC hereunder shall utilize the Commitment of the Granting Bank to the same
extent, and as if, such advance were made by such Granting Bank. Each party
hereto hereby agrees that no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Bank). In furtherance of the foregoing, 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 commercial paper or other senior indebtedness of any SPC, it
will not institute against, or join any other person instituting against, such
SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section
9.06(f), any SPC may (i) with notice to, but without the prior written consent
of, the Borrower and the Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any advances to the Granting Bank,
(ii) with the prior written consent of the Borrower and the Agent and without
paying any processing fee therefor, assign all or a portion of its interests in
any advances to any financial institution providing liquidity and/or credit
support to or for the account of such SPC to support the funding or maintenance
of advances and (iii) disclose on a confidential basis any non-public
information relating to its advances to any rating agency, commercial paper
dealer or provider of any surety, guarantee or credit or liquidity enhancement
to such SPC. This section may not be amended without the written consent of the
SPC.
SECTION 9.07. Collateral. Each of the Banks represents to the Agent
----------
and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
SECTION 9.08. Waiver of Certain Claims. Each Borrower hereby
------------------------
expressly waives any claim, cause of action or remedy of such Borrower against
the Agent, any Bank or any Participant arising out of or relating to, directly
or indirectly, (i) any failure by any Bank to make any Loan or (ii) any failure
by the Agent or any Bank to comply with any interest rate election, in any such
case on account of or attributable to the fact that the applicable Notice of
Borrowing or Notice of Interest Rate Election, as the case may be, was not
signed by the Authorized Officers of such Borrower.
SECTION 9.09. Termination of JHCC as a Borrower. The Borrowers may,
---------------------------------
at any time (i) at which there shall be no Loans outstanding to JHCC or (ii)
after the Company shall have executed and delivered a Company Assumption
Agreement, upon written notice thereof to the Agent, executed on behalf of the
Company and JHCC and substantially in the form of Exhibit G hereto, terminate
JHCC as a Borrower hereunder. Immediately upon the receipt by the
-44-
Agent of such notice, all commitments of the Banks to make Loans to JHCC, and
all rights of JHCC hereunder, shall terminate and JHCC shall immediately cease
to be a Borrower hereunder; provided that, unless the Company shall have
--------
executed and delivered a Company Assumption Agreement, all obligations of JHCC
as a Borrower hereunder arising in respect of any period in which JHCC was, or
on account of any action or inaction by JHCC as, a Borrower hereunder shall
survive such termination and if the Company shall have executed and delivered a
Company Assumption Agreement, the liability of JHCC (but not of the Company)
with respect to such obligations shall terminate.
SECTION 9.10. Governing Law; Submission to Jurisdiction. THIS
-----------------------------------------
AGREEMENT AND EACH NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. EACH BORROWER HEREBY SUBMITS TO
THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS AND OF ANY MASSACHUSETTS STATE COURT SITTING IN
SUFFOLK COUNTY FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH BORROWER
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
SECTION 9.11. Counterparts; Integration. This Agreement may be
-------------------------
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof (other
than the agreement referred to in Section 7.09).
SECTION 9.12. Waiver of Jury Trial. EACH OF THE BORROWERS, THE AGENT
--------------------
AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
-45-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
▇▇▇▇ ▇▇▇▇▇▇▇ MUTUAL LIFE
INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Title: Vice President and Treasurer
----------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: Assistant Treasurer
----------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇-▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Facsimile transmission number:
(▇▇▇) ▇▇▇-▇▇▇▇
Telex number: 62021772
▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Title: President
----------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Title: Treasurer
----------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇-▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Facsimile transmission number:
(▇▇▇) ▇▇▇-▇▇▇▇
Telex number: 62021772
Commitments
-----------
$ 50,000,000 BANKBOSTON, N.A. ("Administrative Agent")
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Title: Managing Director, Financial
Institutions Division
$ 50,000,000 CITICORP USA, INC. ("Syndication Agent")
By: ___________________________
Title:_________________________
$ 50,000,000 THE FIRST NATIONAL BANK OF CHICAGO
("Documentation Agent")
By: ___________________________
Title:_________________________
$ 48,000,000 COMERICA BANK ("Co-Agent")
By: ___________________________
Title:_________________________
$ 40,000,000 THE BANK OF NOVA SCOTIA ("Co-Agent")
By: ___________________________
Title:_________________________
$ 40,000,000 FLEET NATIONAL BANK ("Co-Agent")
By: ___________________________
Title:_________________________
Commitments
-----------
$ 50,000,000 BANKBOSTON, N.A. ("Administrative Agent")
By: ___________________________
Title: Managing Director, Financial
Institutions Division
$ 50,000,000 CITICORP USA, INC. ("Syndication Agent")
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Title:Vice President
-------------------------
$ 50,000,000 THE FIRST NATIONAL BANK OF CHICAGO
("Documentation Agent")
By: ___________________________
Title:_________________________
$ 48,000,000 COMERICA BANK ("Co-Agent")
By: ___________________________
Title:_________________________
$ 40,000,000 THE BANK OF NOVA SCOTIA ("Co-Agent")
By: ___________________________
Title:_________________________
$ 40,000,000 FLEET NATIONAL BANK ("Co-Agent")
By: ___________________________
Title:_________________________
Commitments
-----------
$ 50,000,000 BANKBOSTON, N.A. ("Administrative Agent")
By: ___________________________
Title: Managing Director, Financial
Institutions Division
$ 50,000,000 CITICORP USA, INC. ("Syndication Agent")
By: ___________________________
Title:_________________________
$ 50,000,000 THE FIRST NATIONAL BANK OF CHICAGO
("Documentation Agent")
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Title:First Vice President
-------------------------
$ 48,000,000 COMERICA BANK ("Co-Agent")
By: ___________________________
Title:_________________________
$ 40,000,000 THE BANK OF NOVA SCOTIA ("Co-Agent")
By: ___________________________
Title:_________________________
$ 40,000,000 FLEET NATIONAL BANK ("Co-Agent")
By: ___________________________
Title:_________________________
Commitments
-----------
$ 50,000,000 BANKBOSTON, N.A. ("Administrative Agent")
By: ___________________________
Title: Managing Director, Financial
Institutions Division
$ 50,000,000 CITICORP USA, INC. ("Syndication Agent")
By: ___________________________
Title:_________________________
$ 50,000,000 THE FIRST NATIONAL BANK OF CHICAGO
("Documentation Agent")
By: ___________________________
Title:_________________________
$ 48,000,000 COMERICA BANK ("Co-Agent")
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Title:Vice President
-------------------------
$ 40,000,000 THE BANK OF NOVA SCOTIA ("Co-Agent")
By: ___________________________
Title:_________________________
$ 40,000,000 FLEET NATIONAL BANK ("Co-Agent")
By: ___________________________
Title:_________________________
Commitments
-----------
$ 50,000,000 BANKBOSTON, N.A. ("Administrative Agent")
By: ___________________________
Title: Managing Director, Financial
Institutions Division
$ 50,000,000 CITICORP USA, INC. ("Syndication Agent")
By: ___________________________
Title:_________________________
$ 50,000,000 THE FIRST NATIONAL BANK OF CHICAGO
("Documentation Agent")
By: ___________________________
Title:_________________________
$ 48,000,000 COMERICA BANK ("Co-Agent")
By: ___________________________
Title:_________________________
$ 40,000,000 THE BANK OF NOVA SCOTIA ("Co-Agent")
By: /s/ [SIGNATURE ILLEGIBLE]^^
---------------------------
Title: Authorized Signatory
-------------------------
$ 40,000,000 FLEET NATIONAL BANK ("Co-Agent")
By: ___________________________
Title:_________________________
Commitments
-----------
$ 50,000,000 BANKBOSTON, N.A. ("Administrative Agent")
By: ___________________________
Title: Managing Director, Financial
Institutions Division
$ 50,000,000 CITICORP USA, INC. ("Syndication Agent")
By: ___________________________
Title:_________________________
$ 50,000,000 THE FIRST NATIONAL BANK OF CHICAGO
("Documentation Agent")
By: ___________________________
Title:_________________________
$ 48,000,000 COMERICA BANK ("Co-Agent")
By: ___________________________
Title:_________________________
$ 40,000,000 THE BANK OF NOVA SCOTIA ("Co-Agent")
By: ___________________________
Title:_________________________
$ 40,000,000 FLEET NATIONAL BANK ("Co-Agent")
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
---------------------------
Title:Vice President
-------------------------
Commitments
-----------
$ 40,000,000 ROYAL BANK OF CANADA ("Co-Agent")
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------
Title: Senior Manager
------------------------
$ 40,000,000 WACHOVIA BANK, N.A. ("Co-Agent")
By: ___________________________
Title:_________________________
$ 30,000,000 BANQUE NATIONALE DE PARIS
By: ___________________________
Title:_________________________
By: ___________________________
Title:_________________________
$ 22,000,000 THE CHASE MANHATTAN BANK
By: ___________________________
Title:_________________________
$ 20,000,000 BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By: ___________________________
Title:_________________________
Commitments
-----------
$ 40,000,000 ROYAL BANK OF CANADA ("Co-Agent")
By: ___________________________
Title: ________________________
$ 40,000,000 WACHOVIA BANK, N.A. ("Co-Agent")
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------------------
Title:Senior Vice President
-------------------------
$ 30,000,000 BANQUE NATIONALE DE PARIS
By: ___________________________
Title:_________________________
By: ___________________________
Title:_________________________
$ 22,000,000 THE CHASE MANHATTAN BANK
By: ___________________________
Title:_________________________
$ 20,000,000 BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By: ___________________________
Title:_________________________
Commitments
-----------
$ 40,000,000 ROYAL BANK OF CANADA ("Co-Agent")
By: ___________________________
Title: ________________________
$ 40,000,000 WACHOVIA BANK, N.A. ("Co-Agent")
By: ___________________________
Title:_________________________
$ 30,000,000 BANQUE NATIONALE DE PARIS
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Title:Vice President
-------------------------
By: /s/ [SIGNATURE ILLEGIBLE]^^
---------------------------
Title:Vice President
-------------------------
$ 22,000,000 THE CHASE MANHATTAN BANK
By: ___________________________
Title:_________________________
$ 20,000,000 BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By: ___________________________
Title:_________________________
Commitments
-----------
$ 40,000,000 ROYAL BANK OF CANADA ("Co-Agent")
By: ___________________________
Title: ________________________
$ 40,000,000 WACHOVIA BANK, N.A. ("Co-Agent")
By: ___________________________
Title:_________________________
$ 30,000,000 BANQUE NATIONALE DE PARIS
By: ___________________________
Title:_________________________
By: ___________________________
Title:_________________________
$ 22,000,000 THE CHASE MANHATTAN BANK
By: /s/ [SIGNATURE ILLEGIBLE]^^
---------------------------
Title:Vice President
-------------------------
$ 20,000,000 BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By: ___________________________
Title:_________________________
Commitments
-----------
$ 40,000,000 ROYAL BANK OF CANADA ("Co-Agent")
By: ___________________________
Title: ________________________
$ 40,000,000 WACHOVIA BANK, N.A. ("Co-Agent")
By: ___________________________
Title:_________________________
$ 30,000,000 BANQUE NATIONALE DE PARIS
By: ___________________________
Title:_________________________
By: ___________________________
Title:_________________________
$ 22,000,000 THE CHASE MANHATTAN BANK
By: ___________________________
Title:_________________________
$ 20,000,000 BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Title:Managing Director
-------------------------
Commitments
-----------
$ 20,000,000 CREDIT SUISSE FIRST BOSTON
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------
Title:Director
-----------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Title:Vice President
-----------------------
$ 20,000,000 THE NORTHERN TRUST COMPANY
By: _________________________
Title:_______________________
$ 20,000,000 STATE STREET BANK AND TRUST COMPANY
By: _________________________
Title:_______________________
$ 10,000,000 THE BANK OF NEW YORK
By: _________________________
Title:_______________________
__________________
Total Commitments
$500,000,000
BANKBOSTON, N.A., as Agent
By:_____________________
Title: Managing Director, Financial Institutions
Division
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile transmission number: (▇▇▇) ▇▇▇-▇▇▇▇
Telex number: 4996527
Commitments
-----------
$ 20,000,000 CREDIT SUISSE FIRST BOSTON
By: _________________________
Title:_______________________
By: _________________________
Title:_______________________
$ 20,000,000 THE NORTHERN TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Title:Vice President
-----------------------
$ 20,000,000 STATE STREET BANK AND TRUST COMPANY
By: _________________________
Title:_______________________
$ 10,000,000 THE BANK OF NEW YORK
By: _________________________
Title:_______________________
__________________
Total Commitments
$500,000,000
BANKBOSTON, N.A., as Agent
By:_____________________
Title: Managing Director, Financial Institutions
Division
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile transmission number: (▇▇▇) ▇▇▇-▇▇▇▇
Telex number: 4996527
Commitments
-----------
$ 20,000,000 CREDIT SUISSE FIRST BOSTON
By: _________________________
Title:_______________________
By: _________________________
Title:_______________________
$ 20,000,000 THE NORTHERN TRUST COMPANY
By: _________________________
Title:_______________________
$ 20,000,000 STATE STREET BANK AND TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
-------------------------
Title:Vice President
-----------------------
$ 10,000,000 THE BANK OF NEW YORK
By: _________________________
Title:_______________________
__________________
Total Commitments
$500,000,000
BANKBOSTON, N.A., as Agent
By:_____________________
Title: Managing Director, Financial Institutions
Division
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile transmission number: (▇▇▇) ▇▇▇-▇▇▇▇
Telex number: 4996527
Commitments
-----------
$ 20,000,000 CREDIT SUISSE FIRST BOSTON
By: _________________________
Title:_______________________
By: _________________________
Title:_______________________
$ 20,000,000 THE NORTHERN TRUST COMPANY
By: _________________________
Title:_______________________
$ 20,000,000 STATE STREET BANK AND TRUST COMPANY
By: _________________________
Title:_______________________
$ 10,000,000 THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------
Title:Vice President
-----------------------
__________________
Total Commitments
$500,000,000
BANKBOSTON, N.A., as Agent
By:_____________________
Title: Managing Director, Financial Institutions
Division
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile transmission number: (▇▇▇) ▇▇▇-▇▇▇▇
Telex number: 4996527
Commitments
-----------
$ 20,000,000 CREDIT SUISSE FIRST BOSTON
By:________________________
Title:_____________________
By:________________________
Title:_____________________
$ 20,000,000 THE NORTHERN TRUST COMPANY
By:________________________
Title:_____________________
$ 20,000,000 STATE STREET BANK AND TRUST COMPANY
By:________________________
Title:_____________________
$ 10,000,000 THE BANK OF NEW YORK
By:________________________
Title:_____________________
__________________
Total Commitments
$500,000,000
BANKBOSTON, N.A., as Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Managing Director, Financial
Institutions Division
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile transmission number:
(▇▇▇) ▇▇▇-▇▇▇▇
Telex number: 4996527
EXHIBIT A
NOTE
Boston, Massachusetts
July ___, 1999
For value received, [▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance Company, a legal
reserve mutual life insurance company organized under the laws of the
Commonwealth of Massachusetts] [▇▇▇▇ ▇▇▇▇▇▇▇ Capital Corporation, a Delaware
corporation] (the "Borrower"), promises to pay to the order of
________________________________ (the "Bank"), for the account of its Applicable
Lending Office, the unpaid principal amount of each Loan made by the Bank to the
Borrower pursuant to the Credit Agreement referred to below on the Termination
Date provided, or as otherwise provided, in the Credit Agreement. The Borrower
promises to pay interest on the unpaid principal amount of each such Loan on the
dates and at the rate or rates provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States in Federal or other immediately available funds at the office of
BankBoston, N.A., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇.
All Loans made by the Bank and all repayments of the principal thereof
shall be recorded by the Bank and, prior to any transfer hereof, appropriate
notations to evidence the foregoing information with respect to each such Loan
then outstanding shall be endorsed by the Bank on the schedule attached hereto,
or on a continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such recordation or
--------
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement dated as
of July ___, 1999 among the Borrower, the banks listed on the signature pages
thereof and BankBoston, N.A., as Agent (as the same may be amended from time to
time, the "Credit Agreement"). Terms defined in the Credit Agreement are used
herein with the same meanings. Reference is made to the Credit Agreement for
provisions for the prepayment hereof and the acceleration of the maturity
hereof.
[▇▇▇▇ ▇▇▇▇▇▇▇ MUTUAL LIFE
INSURANCE COMPANY]
[▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL
CORPORATION]
By________________________
Title:
By________________________
Title:
A-1
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
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Amount of
Amount of Principal Notation
Date Loan Repaid Made by
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A-2
EXHIBIT B
COMPANY ASSUMPTION AGREEMENT
----------------------------
AGREEMENT, dated as of _____________, _____, made by ▇▇▇▇ ▇▇▇▇▇▇▇ MUTUAL
LIFE INSURANCE COMPANY, a legal reserve mutual life insurance company organized
under the laws of the Commonwealth of Massachusetts (the "Company"), in favor of
the Banks and the Agent party to the Credit Agreement referred to herein and the
holders from time to time of the Notes issued by JHCC (as defined below)
thereunder.
W I T N E S S E T H:
--------------------
WHEREAS, ▇▇▇▇ ▇▇▇▇▇▇▇ Capital Corporation ("JHCC") is a party to a Credit
Agreement (as amended from time to time, the "Credit Agreement") dated as of
July ___, 1999 among the Company, JHCC, the Banks listed on the signature pages
thereof and BankBoston, N.A., as agent (the "Agent");
WHEREAS, the Company owns, directly or indirectly, all of the common stock
of JHCC; and
[WHEREAS, as of the date hereof [describe transaction by which JHCC's
corporate existence is being terminated] [describe merger or consolidation of
JHCC into another Subsidiary], and under Section [5.03] [5.12] of the Credit
Agreement it is a condition to such [termination] [merger] [consolidation] that
the Company execute and deliver this Agreement;]
[WHEREAS, the Support Agreement, dated as of October 15, 1984 between JHCC
and the Company (the "Support Agreement") is being terminated as of the date
hereof, and under Section 5.13 of the Credit Agreement it is a condition to such
termination that the Company execute and deliver this Agreement;]
[WHEREAS, the Borrowers desire to terminate JHCC as a Borrower under the
Credit Agreement as of the date hereof, and under Section 9.09 of the Credit
Agreement it is a condition to such termination that the Company execute and
deliver this Agreement;]
NOW THEREFORE, in consideration of the premises the Company hereby agrees
as follows:
SECTION 1. Definitions. Capitalized terms used and not otherwise defined
-----------
herein shall have the respective meanings given them in the Credit Agreement.
SECTION 2. Assumption. The Company hereby unconditionally and irrevocably
----------
assumes, as principal obligor, all of the obligations of JHCC under the Credit
Agreement and the Notes issued by JHCC thereunder, including, without
limitation, the obligations of JHCC to pay
B-1
in full when due (whether at stated maturity, upon acceleration or otherwise)
the principal of and interest on such Notes and all other amounts payable by
JHCC under the Credit Agreement.
SECTION 3. Representations and Warranties. The Company hereby represents
------------------------------
and warrants that:
(a) Authorization; No Contravention. The execution, delivery and
-------------------------------
performance by the Company of this Agreement are within the Company's powers,
have been duly authorized by all necessary action, require no action by or in
respect of, or filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or the Special Act, as amended from time to time, or the by-laws of
the Company or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or result in or require the creation or
imposition of any Lien on any asset of the Company or any Material Subsidiary.
(b) Binding Effect. This Agreement constitutes a valid and binding
--------------
agreement of the Company.
SECTION 4. Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made as specified in Section 9.01 of the Credit
Agreement.
SECTION 5. Priority. The obligations of the Company under this Agreement,
--------
and the obligations assumed by the Company hereunder, are unsecured and rank
equally with other unsecured and unsubordinated obligations of the Company,
subject to the requirements of Section 180F, Chapter 175, of the Massachusetts
General Laws as to priorities of distribution in any liquidation proceedings
begun in Massachusetts against an insolvent Massachusetts insurer.
SECTION 6. Governing Law. This Agreement shall be governed by, and
-------------
construed in accordance with, the laws of the Commonwealth of Massachusetts.
SECTION 7. Severability. Any provision of this Agreement which is
------------
illegal, invalid, prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such illegality, invalidity,
prohibition or unenforceability without invalidating the remaining provisions
hereof and any such illegality, invalidity, prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
SECTION 8. Entire Agreement. This Agreement and the Credit Agreement
----------------
embody the entire agreement of the Company with respect to the subject matter
hereof and supersede any prior written or oral agreements and understandings
relating to the subject matter hereof.
B-2
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and delivered by its officers thereunto duly authorized as of the date
first above written.
▇▇▇▇ ▇▇▇▇▇▇▇ MUTUAL LIFE
INSURANCE COMPANY
By:__________________________
Authorized Officer
By:__________________________
Authorized Officer
B-3
EXHIBIT C
GUARANTEE AGREEMENT
-------------------
GUARANTEE AGREEMENT, dated as of _____________, _____, made by ▇▇▇▇ ▇▇▇▇▇▇▇
MUTUAL LIFE INSURANCE COMPANY, a legal reserve mutual life insurance company
organized under the laws of the Commonwealth of Massachusetts (the "Company"),
in favor of the Banks and the Agent party to the Credit Agreement referred to
herein and the holders from time to time of the Notes issued by JHCC (as defined
below) thereunder.
W I T N E S S E T H:
--------------------
WHEREAS, ▇▇▇▇ ▇▇▇▇▇▇▇ Capital Corporation ("JHCC") is a party to a Credit
Agreement (as amended from time to time, the "Credit Agreement") dated as of
July ___, 1999 among the Company, JHCC, the Banks listed on the signature pages
thereof and BankBoston, N.A., as agent (the "Agent");
WHEREAS, the Company owns directly or indirectly, all of the common stock
of JHCC; and
WHEREAS, the Support Agreement, dated as of October 15, 1984 between the
Company and JHCC (the "Support Agreement") is being terminated as of the date
hereof, and under Section 5.13 of the Credit Agreement it is a condition to such
termination that the Company execute and deliver this Guaranty Agreement;
NOW THEREFORE, in consideration of the premises, the Company hereby agrees
as follows:
SECTION 1. Definitions. Capitalized terms used and not otherwise defined
-----------
herein shall have the respective meanings given them in the Credit Agreement.
SECTION 2. Guarantee. The Company hereby unconditionally and irrevocably
---------
guarantees as principal and not merely as surety the full and punctual payment
when due (whether at stated maturity, upon acceleration or otherwise) of the
principal of and interest on each Note issued by JHCC under the Credit Agreement
and the full and punctual payment of all other amounts payable by JHCC under the
Credit Agreement.
SECTION 3. Guarantee Absolute. The Company agrees that the guarantee
------------------
contained in this Guarantee Agreement is a guarantee of payment and not of
collection or collectibility, and that the obligations of the Company hereunder
shall be primary, absolute and unconditional and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
C-1
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of JHCC under the Credit Agreement or
any Note, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to the Credit
Agreement or any Note;
(iii) any release, non-perfection or invalidity of any direct or
indirect security for any obligation of JHCC under the Credit Agreement or
any Note;
(iv) any change in the corporate existence, structure or ownership
of JHCC, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting JHCC or its assets or any resulting release or
discharge of any obligation of JHCC contained in the Credit Agreement or
any Note;
(v) the existence of any claim, set-off or other rights which the
company may have at any time against JHCC, the Agent, any Bank or any other
Person, whether in connection herewith or any unrelated transactions,
provided that nothing herein shall prevent the assertion of any such claim
--------
by separate suit or compulsory counterclaim or with respect to obligations
of the Company other than obligations hereunder;
(vi) any invalidity or unenforceability relating to or against JHCC
for any reason of the Credit Agreement or any Note, or any provision of
applicable law or regulation purporting to prohibit the payment by JHCC of
the principal of or interest on any Note or any other amount payable by
JHCC under the Credit Agreement; or
(vii) any other act or omission to act or delay of any kind by JHCC,
the Agent, any Bank or any other Person or any other circumstance
whatsoever which might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of the Company's obligations
hereunder.
SECTION 4. Representations and Warranties. The Company hereby represents
------------------------------
and warrants that:
(a) Authorization; No Contravention. The execution, delivery and
-------------------------------
performance by the Company of this Guarantee Agreement are within the Company's
powers, have been duly authorized by all necessary action, require no action by
or in respect of, or filing with, any governmental body, agency or official and
do not contravene, or constitute a default under, any provision of applicable
law or regulation or the Special Act, as amended from time to time, or the by-
laws of the Company or of any agreement, judgment, injunction, order, decree or
other instrument binding upon the Company or result in or require the creation
or imposition of any Lien on any asset of the Company or any Material
Subsidiary.
(b) Binding Effect. This Guarantee Agreement constitutes a valid and
--------------
binding agreement of the Company.
C-2
SECTION 5. Manner of Payment. Payment by the Company hereunder shall be
-----------------
made in such funds, to such Persons and at such times and places as are
specified for corresponding payments under the Credit Agreement.
SECTION 6. Enforcement of Guarantee. In no event shall any Bank, the
------------------------
Agent or any other Person have any obligation to proceed against JHCC or any
other Person or any property that may be pledged to secure the obligations of
JHCC under the Credit Agreement or the Notes before seeking satisfaction from
the Company.
SECTION 7. Waiver. The Company hereby irrevocably waives promptness,
------
diligence, acceptance hereof, presentment, demand, protest and any and all other
notice not provided for herein and any requirement that at any time any Bank,
the Agent or any other Person exhaust any right or take any action against JHCC
or any other Person and any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge, release or defense of the Company or
that might otherwise limit recourse against the Company.
SECTION 8. Waiver of Subrogation. The Company irrevocably waives any and
---------------------
all rights to which it may be entitled, by operation of law or otherwise, upon
making any payment hereunder to be subrogated to the rights of the payee against
JHCC with respect to such payment or otherwise to be reimbursed, indemnified or
exonerated by JHCC in respect thereof.
SECTION 9. Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made as specified in Section 9.01 of the Credit
Agreement.
SECTION 10. No Waiver; Remedies. No failure on the part of any Bank or
-------------------
the Agent to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 11. Continuing Guarantee; Reinstatement in Certain Circumstances.
------------------------------------------------------------
The guarantee contained in this Guarantee Agreement is a continuing guarantee
and the Company's obligations hereunder shall (i) unless the Company shall have
executed and delivered a Company Assumption Agreement or JHCC shall have
consolidated with or merged into the Company in accordance with Section
5.12(i)(a)(A) of the Credit Agreement, remain in full force and effect until the
indefeasible payment in full of the principal of and interest on the notes
issued by JHCC and all other amounts payable by JHCC under the Credit Agreement
and the expiration or earlier termination of the Commitments with respect to
JHCC under the Credit Agreement, (ii) be binding upon the Company and its
successors and assigns, and (iii) inure to the benefit of and be enforceable by
the Banks, the Agent and the holders from time to time of the Notes issued by
JHCC and their respective successors, transferees and assigns. If at any time
any payment of any of the principal of or interest on any Note or any other
amount payable by JHCC under the Credit Agreement is rescinded or must otherwise
be restored or returned upon the insolvency, bankruptcy or reorganization of
JHCC or otherwise, the Company's obligations hereunder with respect to such
payment shall be reinstated as though such payment had been due but not made at
such time.
C-3
SECTION 12. Stay of Acceleration. If acceleration of the time for payment
--------------------
of any amount payable by JHCC under the Credit Agreement or the Notes is stayed
upon the insolvency, bankruptcy or reorganization of JHCC, all such amounts
otherwise subject to acceleration under the terms of the Credit Agreement shall
nonetheless be payable by the Company hereunder forthwith on demand by the Agent
made at the request of the requisite proportion of the Banks specified in
Article VI of the Credit Agreement.
SECTION 13. Priority. The obligations of the Company under this Guarantee
--------
Agreement are unsecured and rank equally with other unsecured and unsubordinated
obligations of the Company, subject to the requirements of Section 180F, Chapter
175, of the Massachusetts General Laws as to priorities of distribution in any
liquidation proceedings begun in Massachusetts against an insolvent
Massachusetts insurer.
SECTION 14. Governing Law. This Guarantee Agreement shall be governed by,
-------------
and construed in accordance with, the laws of the Commonwealth of Massachusetts.
SECTION 15. Severability. Any provision of this Guarantee Agreement which
------------
is illegal, invalid, prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such illegality,
invalidity, prohibition or unenforceability without invalidating the remaining
provisions hereof and any such illegality, invalidity, prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 16. Entire Agreement. This Guarantee Agreement and the Credit
----------------
Agreement embody the entire agreement of the Company with respect to the subject
matter hereof and supersede any prior written or oral agreements and
understandings relating to the subject matter hereof and thereof.
IN WITNESS WHEREOF, the Company has caused this Guarantee Agreement to be
duly executed and delivered by its officers thereunto duly authorized as of the
date first above written.
▇▇▇▇ ▇▇▇▇▇▇▇ MUTUAL LIFE
INSURANCE COMPANY
By:__________________________
Authorized Officer
By:__________________________
Authorized Officer
C-4
EXHIBIT D
OPINION OF
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.,
SECOND VICE PRESIDENT AND
COUNSEL OF THE COMPANY
----------------------
July ___, 1999
The Banks and the Agent listed on
the signature pages of the below-
referenced Credit Agreement
c/o BankBoston, N.A.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: ▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance Company and
▇▇▇▇ ▇▇▇▇▇▇▇ Capital Corporation Credit Agreement
-------------------------------------------------
I have acted as counsel for ▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance
Company, a legal reserve mutual life insurance company organized under the laws
of the Commonwealth of Massachusetts ("▇▇▇▇ ▇▇▇▇▇▇▇"), and ▇▇▇▇ ▇▇▇▇▇▇▇ Capital
Corporation, a Delaware corporation and an indirect, wholly-owned subsidiary of
▇▇▇▇ ▇▇▇▇▇▇▇ ("JHCC"), in connection with the negotiation, execution and
delivery by ▇▇▇▇ ▇▇▇▇▇▇▇ and JHCC of the Credit Agreement, dated as of July ___,
1999, among ▇▇▇▇ ▇▇▇▇▇▇▇, JHCC, the Banks listed on signature pages of such
Credit Agreement (the "Banks") and BankBoston, N.A., as Agent (the "Agent") (the
"Credit Agreement"), and the execution and issuance thereunder of the Notes of
▇▇▇▇ ▇▇▇▇▇▇▇ (the "▇▇▇▇ ▇▇▇▇▇▇▇ Notes") and JHCC (the "JHCC Notes").
All terms capitalized herein which are not otherwise defined have the
meanings attributed thereto in the Credit Agreement.
In so acting, I have reviewed, among other things, the Credit
Agreement, the Notes and the Support Agreement and such other documents as I
have deemed necessary or appropriate as a basis for the opinions expressed
below. In my examination I have assumed the genuineness of all signatures
(other than signatures of officers of ▇▇▇▇ ▇▇▇▇▇▇▇ and JHCC), the authenticity
of all documents submitted to me as originals (other than the Credit Agreement,
the Support Agreement and the Notes), the conformity
D-1
to original documents of all documents submitted to me as certified or
photostatic copies, and the authenticity of the originals of such copies. I have
also examined and relied upon the representations and warranties as to factual
matters contained in and made pursuant to the Credit Agreement and the Support
Agreement and I have examined and relied upon the originals or copies certified,
or otherwise identified to my satisfaction, of such records, documents,
certificates and other instruments, and I have made such other investigations,
as in my judgment are necessary or appropriate to enable me to render the
opinion below.
Subject to the qualifications discussed below, I am of the following
opinion:
1. ▇▇▇▇ ▇▇▇▇▇▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ is a legal reserve mutual life insurance
------------
company duly organized in 1862 pursuant to the Special Act and is
validly existing and in good standing under the laws of the
Commonwealth of Massachusetts, and has all powers, and to my
knowledge, all material governmental licenses, consents and approvals
required to carry on its business as now conducted and to execute and
deliver the Credit Agreement, the ▇▇▇▇ ▇▇▇▇▇▇▇ Notes and the Support
Agreement.
2. JHCC. JHCC is a corporation duly incorporated, validly existing and
----
in good standing under the laws of the State of Delaware, and has all
corporate powers and, to my knowledge, all material governmental
licenses, consents and approvals required to carry on its business as
now conducted and to execute and deliver the Credit Agreement, the
JHCC Notes and the Support Agreement.
3. The Credit Agreement. The Credit Agreement has been duly authorized,
--------------------
executed and delivered by both ▇▇▇▇ ▇▇▇▇▇▇▇ and JHCC, and constitutes
the legal, valid and binding obligation of ▇▇▇▇ ▇▇▇▇▇▇▇ and JHCC,
enforceable against ▇▇▇▇ ▇▇▇▇▇▇▇ and JHCC, as the case may be, in
accordance with its terms.
4. The ▇▇▇▇ ▇▇▇▇▇▇▇ Notes. The ▇▇▇▇ ▇▇▇▇▇▇▇ Notes have been duly
----------------------
authorized, executed and delivered by ▇▇▇▇ ▇▇▇▇▇▇▇, and each ▇▇▇▇
▇▇▇▇▇▇▇ Note issued on the date hereof is a legal, valid and binding
obligation of ▇▇▇▇ ▇▇▇▇▇▇▇, enforceable against ▇▇▇▇ ▇▇▇▇▇▇▇ in
accordance with its terms.
5. The JHCC Notes. The JHCC Notes have been duly authorized, executed
--------------
and delivered by JHCC, and each JHCC Note issued on the date hereof is
a legal, valid and binding obligation of JHCC, enforceable against
JHCC in accordance with its terms.
6. Ranking. (a) The obligations of ▇▇▇▇ ▇▇▇▇▇▇▇ under the Credit
-------
Agreement, the ▇▇▇▇ ▇▇▇▇▇▇▇ Notes and the Support Agreement will rank
D-2
equally with other unsecured and unsubordinated obligations of ▇▇▇▇
▇▇▇▇▇▇▇, subject to the requirements of section one hundred and eighty
F of Chapter 175 of the Massachusetts General Laws, which section
establishes priorities of distribution in any liquidation proceeding
begun in the Commonwealth of Massachusetts against an insolvent
Massachusetts insurer, and (b) the obligations of JHCC under the
Credit Agreement and the JHCC Notes will rank equally with other
unsecured and unsubordinated obligations of JHCC.
7. Support Agreement. The Support Agreement has been duly authorized,
-----------------
executed and delivered by ▇▇▇▇ ▇▇▇▇▇▇▇ and JHCC and constitutes the
legal, valid and binding obligation of ▇▇▇▇ ▇▇▇▇▇▇▇ and JHCC
enforceable against ▇▇▇▇ ▇▇▇▇▇▇▇ or JHCC, as the case may be, in
accordance with its terms, and the provisions thereof which purport to
create a direct right of the holders of any JHCC Notes to enforce ▇▇▇▇
▇▇▇▇▇▇▇'▇ obligations under the Support Agreement in the event of
JHCC's failure to meet its obligations under the JHCC Notes are
legally effective for such purpose.
8. Governmental Consents. No consent or action of, or filing with, any
---------------------
governmental or public regulatory body or authority, including,
without limitation, the Executive Office of Consumer Affairs and
Business Regulation, Division of Insurance, of the Commonwealth of
Massachusetts, is required to authorize, or is otherwise required in
connection with, the execution, delivery and performance by ▇▇▇▇
▇▇▇▇▇▇▇ or JHCC of the Credit Agreement or the Support Agreement or
their respective obligations thereunder or by ▇▇▇▇ ▇▇▇▇▇▇▇ of the ▇▇▇▇
▇▇▇▇▇▇▇ Notes or JHCC of the JHCC Notes or their respective
obligations thereunder.
9. Conflict with Instruments, Etc. Neither the execution and delivery by
-------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ and JHCC of the Credit Agreement, the Notes or the
Support Agreement, nor the fulfillment of, nor compliance with, the
terms and provisions thereof, will violate any law or any regulation,
order, writ, injunction or decree of any court or governmental
instrumentality or result in any breach of any of the terms,
conditions or provisions of, or constitute a default under, or result
in the creation or imposition of, any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the properties or
assets of ▇▇▇▇ ▇▇▇▇▇▇▇ or JHCC pursuant to the terms of, the Special
Act, the Certificate of Incorporation of JHCC, or the By-Laws of ▇▇▇▇
▇▇▇▇▇▇▇ or JHCC, or any mortgage, indenture, agreement or instrument
of which I am aware and to which ▇▇▇▇ ▇▇▇▇▇▇▇ or JHCC is a party or by
which it is bound.
10. Litigation. To my knowledge, there is no action, suit or proceeding
----------
pending or threatened against or affecting either Borrower before any
D-3
court or arbitrator or any governmental body, agency or official (i)
which, if adversely determined, would have a Material Adverse Effect
or a material adverse effect on the ability of either Borrower to
perform its respective obligations under the Support Agreement or (ii)
which in any manner draws into question the validity or enforceability
of the Credit Agreement, the Support Agreement or any of the Notes.
11. Not an Investment Company. ▇▇▇▇ ▇▇▇▇▇▇▇ is not an investment company
-------------------------
within the meaning of the Investment Company Act of 1940, as amended.
JHCC has been exempted from all provisions of the Investment Company
Act of 1940, as amended, including, without limitation, those relating
to the offering and sale of securities by JHCC, by order of the
Securities and Exchange Commission dated June 26, 1984 issued pursuant
to Section 6(c) of such Act, and to my knowledge such order remains in
full force and effect and has not in any way been modified or amended.
The opinions expressed above are subject to the following
qualifications:
(a) I express no opinion as to any laws other than the laws of the
Commonwealth of Massachusetts, the Federal laws of the United States
of America and, to the extent set forth in the foregoing opinions with
respect to JHCC, the corporate laws of the State of Delaware;
(b) I have assumed the requisite corporate power and authority on the part
of the Agent and the Banks to enter into the Credit Agreement and to
make Loans thereunder and the due authorization, execution and
delivery of the Credit Agreement by the Agent and the Banks;
(c) I express no opinion as to the enforceability of Section 9.12 of the
Credit Agreement;
(d) I express no opinion as to the effect on the opinions herein stated of
(i) the compliance or noncompliance by the Agent or any Bank with any
state, Federal or other laws or regulations applicable to it or (ii)
the legal or regulatory status or the nature of the business of the
Agent or any Bank; and
(e) The enforceability of the Credit Agreement, the Notes and the Support
Agreement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors'
rights generally, by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or
at law), and with respect to the enforceability of the Credit
Agreement, the ▇▇▇▇ ▇▇▇▇▇▇▇ Notes and the Support Agreement against
▇▇▇▇ ▇▇▇▇▇▇▇, such enforceability may be further limited by the
requirements of section one hundred and eighty F of Chapter 175 of the
Massachusetts General Laws,
D-4
which section establishes priorities of distribution in any
liquidation proceeding begun in the Commonwealth of Massachusetts
against an insolvent Massachusetts insurer.
I am delivering this opinion to you for your benefit pursuant to
Section 3.01(e) of the Credit Agreement. Goulston & Storrs may rely on this
opinion as if it were addressed to them. No Person other than you and Goulston
& Storrs is entitled to rely on this opinion without my prior written consent.
This opinion does not address facts and circumstances or changes in law arising
after the date hereof and I assume no responsibility to inform you of any such
changes which may come to my attention.
Very truly yours,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Second Vice President and Counsel
D-5
EXHIBIT E
OPINION OF
GOULSTON & STORRS, P.C., SPECIAL COUNSEL
FOR THE AGENT
----------------------------------------
July ___, 1999
To the Banks and the Agent
Referred to Below
c/o BankBoston, N.A., as Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We have participated in the preparation of the Credit Agreement (the
"Credit Agreement") dated as of July ___, 1999 among ▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life
Insurance Company, a legal reserve mutual life insurance company organized under
the laws of the Commonwealth of Massachusetts, and ▇▇▇▇ ▇▇▇▇▇▇▇ Capital
Corporation, a Delaware corporation (each, a "Borrower"), the banks listed on
the signature pages thereof (the "Banks") and BankBoston, N.A., as Agent (the
"Agent"), and have acted as special counsel for the Agent for the purpose of
rendering this opinion pursuant to Section 3.01(f) of the Credit Agreement.
Terms defined in the Credit Agreement are used herein as therein defined.
We have made such examination of law and have examined such certificates,
documents, and opinions of counsel for each Borrower as we have deemed necessary
for the purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that the Credit
Agreement constitutes a valid and binding agreement of each Borrower and that
the Notes of each Borrower constitute valid and binding obligations of such
Borrower.
Our opinions set forth herein are subject to the following limitations and
qualifications:
A. In our examination and in rendering this opinion, we have assumed the
genuineness of all signatures, the legal capacity of natural persons,
the power and authority of all natural persons (other than officers of
the Agent),
E-1
the authenticity and completeness of all documents submitted to us as
originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies, the authenticity
of the originals of such latter documents and the accuracy and
completeness of information or documents furnished to us with respect
to the Credit Agreement and the Notes.
B. In rendering this opinion, we have relied without any independent
investigation on the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Second Vice
President and Counsel of the Company, delivered to you on the date
hereof, to the effect that each Borrower has all requisite power and
authority and has taken all necessary corporate or other action to
authorize it to execute, deliver and perform the Credit Agreement and
any other related documents as may be executed in connection therewith
to which it is a party and to effect the transactions contemplated
thereby; that each Borrower has executed and delivered the Credit
Agreement and such other related documents; and that the same
constitute legal, valid and binding obligations of such Borrower. We
have also assumed that each Bank has all requisite power and authority
and has taken all necessary corporate or other action to authorize it
to execute, deliver and perform the Credit Agreement and any other
related documents as may be executed in connection therewith to which
it is a party and to effect the transactions contemplated thereby;
that each Bank has executed and delivered the Credit Agreement and
such other related documents; and that the same constitute legal,
valid and binding obligations of such Bank. Our opinion does not take
account of, and we express no opinion with respect to, (i) any
requirement of law which may be applicable to the Borrower, the Agent,
or the Banks by reason of the legal or regulatory status of any
Borrower, the Agent or any Bank or by reason of any other facts
particularly pertaining to such Borrower, Agent or Bank, or (ii) any
approval or consent arising out of any contract or agreement (other
than the Credit Agreement) to which such Borrower, Agent or Bank is a
party or by which it is bound.
C. Our opinions set forth herein as to the validity and binding effect
are specifically qualified to the extent that the validity and binding
effect of any obligations of each Borrower under the Credit Agreement
and the Notes may be subject to or limited by (i) applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium and other statutory or decisional laws, heretofore or
hereafter enacted or in effect, affecting the rights and remedies of
creditors generally, (ii) the exercise of judicial or administrative
discretion in accordance with general equitable principles, (iii) the
application by courts of competent jurisdiction of laws containing
provisions determined to have a paramount public interest, (iv) each
Bank's implied duty of good faith, and (v) the availability or
enforceability of particular remedies, of exculpatory
E-2
provisions and of waivers contained in the Credit Agreement or the
Notes, which particular remedies, exculpatory provisions and waivers
of rights may be limited by equitable principles or applicable laws,
rules, regulations, court decisions and constitutional requirements.
D. This opinion is limited to the legal matters explicitly addressed
herein and does not extend, by implication or otherwise, to any other
matter. This opinion is not subject to, and shall not be governed by
or interpreted in accordance with, the Third-Party Legal Opinion
Report (including the Legal Opinion Accord and the "guidelines" set
forth therein) of the ABA Section of Business Law (1991).
E. We are not passing upon and do not assume any responsibility for the
accuracy, sufficiency, completeness or fairness of any statements,
representations, warranties, descriptions, information or financial
data supplied to the Agent or the Banks with respect to the Credit
Agreement or the Notes or the transactions contemplated thereby or for
the fairness of such transactions themselves, and we make no
representation that we have independently verified the accuracy,
sufficiency, completeness or fairness of any of the foregoing.
F. We are members of the Bar of the Commonwealth of Massachusetts and the
foregoing opinion is limited to the laws of the Commonwealth of
Massachusetts and the federal laws of the United States of America.
Insofar as this opinion involves matters arising under the law of the
State of Delaware, we have relied without any independent
investigation on the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Second Vice
President and Counsel of the Company, delivered to you on the date
hereof. In giving the foregoing opinion, we express no opinion as to
the effect (if any) of any law of any jurisdiction (except the
Commonwealth of Massachusetts) in which any Bank is located which
limits the rate of interest that such Bank may charge or collect.
This opinion is rendered solely to you in connection with the above matter.
This opinion may not be relied upon by you for any other purpose or relied upon
by or furnished to any other Person without our prior written consent.
Very truly yours,
DMA/PAH/HSD/AJF
E-3
EXHIBIT F
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _______________, _____ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), ▇▇▇▇ ▇▇▇▇▇▇▇ MUTUAL LIFE INSURANCE
COMPANY (the "Company"), ▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL CORPORATION ("JHCC") and
BANKBOSTON, N.A., as Agent (the "Agent").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, this Assignment and Assumption Agreement (the "Agreement") relates
to the Credit Agreement dated as of July ___, 1999 among the Company, JHCC (the
Company and JHCC, collectively, the "Borrowers" and each, a "Borrower"), the
Assignor and the other Banks party thereto, as Banks, and the Agent (the "Credit
Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrowers in an aggregate principal amount at
any time outstanding not to exceed $_____________;
WHEREAS, Committed Loans made to the Borrowers by the Assignor under the
Credit Agreement in the aggregate principal amount of $___________ are
outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the rights
of the Assignor under the Credit Agreement in respect of a portion of its
commitment thereunder in an amount equal to $____________ (the "Assigned
Amount"), together with a corresponding portion of its outstanding Committed
Loans, and the Assignee proposes to accept assignment of such rights and assume
the corresponding obligations from the Assignor on such terms;
NOW THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
-----------
herein shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
----------
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the
F-1
corresponding portion of the principal amount of the Committed Loans made by the
Assignor outstanding at the date hereof. Upon the execution and delivery hereof
by the Assignor, the Assignee, each Borrower and the Agent and the payment of
the amounts specified in Section 3 required to be paid on the date hereof (i)
the Assignee shall, as of the date hereof, succeed to the rights and be
obligated to perform the obligations of a Bank under the Credit Agreement with a
Commitment in an amount equal to the Assigned Amount, and (ii) the Commitment of
the Assignor shall, as of the date hereof, be reduced by a like amount and the
Assignor released from its obligations under the Credit Agreement to the extent
such obligations have been assumed by the Assignee. The assignment provided for
herein shall be without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
--------
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount separately agreed between them It is
understood that participation and facility fees accrued to the date hereof are
for the account of the Assignor and facility fees accruing from and including
the date hereof in respect of the Assigned Amount are for the account of the
Assignee. Each of the Assignor and the Assignee hereby agrees that if it
receives any amount under the Credit Agreement which is for the account of the
other party hereto, it shall receive the same for the account of such other
party to the extent of such other party's interest therein and shall promptly
pay the same to such other party.
SECTION 4. Consent of the Borrowers and the Agent. Except as provided in
--------------------------------------
Section 9.06(c) of the Credit Agreement, this Agreement is conditioned upon the
consent of the Borrowers and the Agent pursuant to such Section 9.06(c). The
execution of this Agreement by each Borrower and the Agent is evidence of this
consent. Pursuant to Section 9.06(c) each Borrower agrees to execute and
deliver a Note payable to the order of the Assignee to evidence the assignment
and assumption provided for herein.
SECTION 5. Non-Reliance on Assignor. The Assignor makes no representation
------------------------
or warranty in connection with, and shall have no responsibility with respect
to, the solvency, financial condition, or statements of either Borrower, or the
validity and enforceability of the obligations of either Borrower in respect of
the Credit Agreement or any Note. The Assignee acknowledges that it has,
independently and without reliance on the Assignor, and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and will continue to be responsible for
making its own independent appraisal of the business, affairs and financial
condition of the Borrowers.
SECTION 6. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the Commonwealth of Massachusetts.
SECTION 7. Counterparts. This Agreement may be signed in any number of
------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
F-2
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date first above
written.
[ASSIGNOR]
By: ___________________________
Title:
[ASSIGNEE]
By: ___________________________
Title:
▇▇▇▇ ▇▇▇▇▇▇▇ MUTUAL LIFE
INSURANCE COMPANY
By ___________________________
Authorized Officer
By ___________________________
Authorized Officer
▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL CORPORATION
By ___________________________
Authorized Officer
By ___________________________
Authorized Officer
BANKBOSTON, N.A., as Agent
By ___________________________
Title:
F-3
EXHIBIT G
JHCC TERMINATION NOTICE
-----------------------
[Date]
To: BankBoston, N.A. (the "Agent")
From: ▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance Company (the "Company")
and ▇▇▇▇ ▇▇▇▇▇▇▇ Capital Corporation ("JHCC")
Re: Credit Agreement (the "Credit Agreement")
dated as of July ___, 1999 among the Company,
JHCC, the Banks listed on the signature pages
thereof and the Agent
---------------------------------------------
We hereby give notice pursuant to Section 9.09 of the Credit Agreement
that, effective as of the date hereof, JHCC is terminated as a Borrower under
the Credit Agreement and all commitments by the Banks to make Loans to JHCC
under the Credit Agreement are hereby terminated.
We hereby certify that the termination of JHCC as a Borrower under the
Credit Agreement complies with Section 9.09 of the Credit Agreement for the
reasons set forth below:
[1. There are no Loans outstanding to JHCC.
2. All obligations of JHCC as a Borrower under the Credit Agreement
arising in respect of any period in which JHCC was, or on account of any action
of inaction of JHCC as, a Borrower under the Credit Agreement shall survive the
termination effected by this notice.]/*/
[1. The Company has executed and delivered a Company Assumption
Agreement].
_______________________
/*/ Include this language if no Company Assumption Agreement has been executed
and delivered.
G-1
Terms used herein have the meanings assigned to them in the Credit
Agreement.
▇▇▇▇ ▇▇▇▇▇▇▇ MUTUAL
LIFE INSURANCE COMPANY
By ___________________________
Authorized Officer
By ___________________________
Authorized Officer
▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL
CORPORATION
By ___________________________
Authorized Officer
By ___________________________
Authorized Officer
G-2
EXHIBIT H
H-1
SUPPORT AGREEMENT dated as of October 15, 1984 between ▇▇▇▇ ▇▇▇▇▇▇▇ MUTUAL
LIFE INSURANCE COMPANY, a Massachusetts corporation ("▇▇▇▇ ▇▇▇▇▇▇▇"), and ▇▇▇▇
▇▇▇▇▇▇▇ CAPITAL CORPORATION, a Delaware corporation ("Capital").
WHEREAS, ▇▇▇▇ ▇▇▇▇▇▇▇ owns through ▇▇▇▇ ▇▇▇▇▇▇▇ Subsidiaries, Inc., a
Delaware corporation and a wholly-owned subsidiary of ▇▇▇▇ ▇▇▇▇▇▇▇, and
presently intends to continue to own, either directly or through one or more
wholly-owned subsidiaries, all of the outstanding shares of the capital stock of
Capital having general voting power; and
WHEREAS, it is in the interests of both ▇▇▇▇ ▇▇▇▇▇▇▇ and Capital and in
furtherance of Capital's corporate purposes that Capital be able to borrow money
from banks, other financial institutions and others, including borrowings in the
form of Commercial Paper (as hereinafter defined), and to incur such borrowings
at the most favorable prevailing rates and terms, and in this regard Capital has
requested ▇▇▇▇ ▇▇▇▇▇▇▇ to enter into this Agreement; and
WHEREAS, Capital intends to issue, from time to time, its short-term notes
having maturities not exceeding nine months from their dates of issue (such
notes herein referred to as "Commercial Paper') and to sell its Commercial Paper
in the commercial paper market, and to incur, from time to time, other
indebtedness for borrowed money, all in furtherance of its corporate purposes;
and
WHEREAS, Capital also intends to guarantee indebtedness for borrowed money
(including such indebtedness in the form of bonds, notes and other transferable
securities) incurred from
time to time by ▇▇▇▇ ▇▇▇▇▇▇▇ Overseas Finance N.V. and other direct or indirect
subsidiaries of ▇▇▇▇ ▇▇▇▇▇▇▇ (herein collectively referred to as "▇▇▇▇ ▇▇▇▇▇▇▇
companies"); and
WHEREAS, Capital intends that the proceeds of any such borrowings incurred
by it be used to make loans to ▇▇▇▇ ▇▇▇▇▇▇▇ and the ▇▇▇▇ ▇▇▇▇▇▇▇ companies; and
WHEREAS, in furtherance of the foregoing objectives, ▇▇▇▇ ▇▇▇▇▇▇▇ and
Capital are entering into this Agreement for the express benefit of the holder
or holders of the Commercial Paper of Capital, and, if and to the extent ▇▇▇▇
▇▇▇▇▇▇▇ may hereafter specifically agree in writing, the holder or holders of
other indebtedness for borrowed money of Capital and the holder or holders of
indebtedness for borrowed money incurred by one or more of the ▇▇▇▇ ▇▇▇▇▇▇▇
companies which has been guaranteed by Capital.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, ▇▇▇▇
▇▇▇▇▇▇▇ and Capital hereby agree as follows:
(1) Stock Ownership. ▇▇▇▇ ▇▇▇▇▇▇▇, during the term of this Agreement, will
---------------
continue to own, either directly or through one or more wholly-owned
subsidiaries, the legal title to and beneficial interest in all outstanding
shares of the capital stock of Capital having general voting power, and
will not directly or indirectly pledge or in any way encumber or otherwise
dispose of any such shares of stock.
-2-
(2) Maintenance of Tangible Net Worth. ▇▇▇▇ ▇▇▇▇▇▇▇, during the term of this
---------------------------------
Agreement will take such action as may be required to enable Capital to
have and maintain a "Tangible Net Worth" of at least $1,000,000. The term
"Tangible Net Worth" shall mean an amount equal to the capital stock and
surplus (including paid-in or capital surplus) accounts of Capital after
deducting therefrom the book amount of all intangible assets of Capital,
all determined in accordance with generally accepted accounting principles,
except that any Subordinated Loan made by ▇▇▇▇ ▇▇▇▇▇▇▇ or by any one or
more of the ▇▇▇▇ ▇▇▇▇▇▇▇ companies to Capital shall be considered part of
such capital stock and surplus accounts. The term "Subordinated Loan"
shall mean any loan or advance made to Capital by ▇▇▇▇ ▇▇▇▇▇▇▇ or by any of
the ▇▇▇▇ ▇▇▇▇▇▇▇ companies which by its terms is subordinated in right of
payment to all obligations for borrowed money issued or guaranteed by
Capital, except Subordinated Loans.
(3) Officer's Certificate; Payments to Capital. If at any time Capital shall
------------------------------------------
determine that its Tangible Net Worth shall be less than $1,000,000,
Capital shall promptly deliver to ▇▇▇▇ ▇▇▇▇▇▇▇ a certificate of the
President or any Vice President or the Treasurer of Capital ("Officer's
Certificate") setting forth the Tangible Net Worth of Capital as of the
date of said certificate and the amount of the payment ("Deficiency
Amount") required to be made under Section (2) in order to enable Capital
-3-
to have the amount of Tangible Net Worth provided for in Section (2), all
in reasonable detail and determined in accordance with Section (2). ▇▇▇▇
▇▇▇▇▇▇▇ shall pay, or shall cause to be paid, subject to subsequent
adjustment as provided for in Section (4), to Capital an amount equal to
the Deficiency Amount immediately upon receipt of the Officer's
Certificate. Any such payment shall be in the form of a capital
contribution, the purchase of additional shares of capital stock of Capital
or the making of Subordinated Loans, as ▇▇▇▇ ▇▇▇▇▇▇▇ shall determine.
(4) Adjustment of Deficiency Amount. ▇▇▇▇ ▇▇▇▇▇▇▇ shall not be deemed to have
-------------------------------
accepted an asserted Deficiency Amount certified to it under Section (3),
if within ten (10) days after receipt of such certification, it shall give
Capital written notice of its objections thereto and the reasons therefor
("Objection Notice"), provided that the giving of such Objection Notice
shall not relieve ▇▇▇▇ ▇▇▇▇▇▇▇ of its obligation to pay or cause to be
paid, to Capital an amount equal to the asserted Deficiency Amount in
accordance with Section (3). If such Objection Notice is given, ▇▇▇▇
▇▇▇▇▇▇▇ and Capital will attempt in good faith to agree upon the amount of
such deficiency. If ▇▇▇▇ ▇▇▇▇▇▇▇ and Capital cannot so agree within ten
(10) days after the Objection Notice is given, then
-4-
▇▇▇▇ ▇▇▇▇▇▇▇ and Capital agree that Ernst & Whinney shall be requested to
deliver to ▇▇▇▇ ▇▇▇▇▇▇▇ and Capital, within thirty (30) days after the
Objection Notice is given, a letter from Ernst & Whinney to ▇▇▇▇ ▇▇▇▇▇▇▇
and Capital (A) stating the actual deficiency as of the date of the
Officer's Certificate setting forth the asserted Deficiency Amount, as
computed by Ernst & Whinney from the books and records of Capital, (B)
demonstrating in reasonable detail the manner in which such actual
deficiency was computed, and (C) stating that such computation was made in
accordance with the terms of this Agreement. Such computation of the actual
deficiency shall be binding and conclusive upon ▇▇▇▇ ▇▇▇▇▇▇▇ and Capital.
If the amount of the actual deficiency as finally determined under this
Section (4) is different from the asserted Deficiency Amount, then the
amount of the Deficiency Amount asserted under Section (3) shall be
adjusted by refunds from Capital, or additional payments to Capital in the
manner provided in Section (3), as may be required. ▇▇▇▇ ▇▇▇▇▇▇▇ and
Capital shall bear equally any fees and disbursements incurred by Ernst &
Whinney in rendering any letter in accordance with the terms of this
Section (4). ▇▇▇▇ ▇▇▇▇▇▇▇ and Capital agree that other mutually acceptable
nationally recognized certified public accounting firms may be substituted
for Ernst & Whinney.
-5-
(5) Benefit of Agreement. This Agreement is made for the express benefit of
--------------------
the holder or holders from time to time of Capital's Commercial Paper and,
if and to the extent that ▇▇▇▇ ▇▇▇▇▇▇▇ may hereafter agree with Capital in
writing to expressly extend the benefits of this Agreement to the holder or
holders of other indebtedness for borrowed money of Capital or the holder
or holders of indebtedness for borrowed money incurred by one or more of
the ▇▇▇▇ ▇▇▇▇▇▇▇ companies which has been guaranteed by Capital, such
holder or holders as may be specifically described in any such writing, and
nothing in this Agreement shall be construed otherwise (such Commercial
Paper; such other indebtedness of Capital and such indebtedness guaranteed
by Capital being herein referred to as "Covered Credit"; such holder or
holders being herein referred to as "Covered Creditors"). Capital agrees
that it will not incur any indebtedness for borrowed money, other than with
respect to Commercial Paper and Subordinated Loans, or guarantee any
indebtedness incurred by one or more of the ▇▇▇▇ ▇▇▇▇▇▇▇ companies, unless
and until ▇▇▇▇ ▇▇▇▇▇▇▇ shall have expressly agreed in writing that such
indebtedness for borrowed money or such indebtedness guaranteed by Capital,
as the case may be, shall be Covered Credit and the holder or holders of
such indebtedness shall be Covered Creditors.
-6-
(6) Enforcement of Agreement. Capital agrees for the benefit of Covered
------------------------
Creditors that it will timely take any and all action under this Agreement
necessary to require ▇▇▇▇ ▇▇▇▇▇▇▇ to perform its obligations under this
Agreement. Capital and ▇▇▇▇ ▇▇▇▇▇▇▇ further agree that, if and to the
extent that Capital shall fail to take such action, any Covered Creditor
may do so. ▇▇▇▇ ▇▇▇▇▇▇▇ hereby makes a continuing offer to each person
who, in reliance on this Agreement and prior to the termination of this
Agreement, becomes a Covered Creditor, to perform its obligations under
Section (2) of this Agreement. Such offer shall be deemed to be accepted
by the act of such person becoming a Covered Creditor and shall give rise
to a direct right of action on the part of such person against ▇▇▇▇ ▇▇▇▇▇▇▇
to enforce ▇▇▇▇ ▇▇▇▇▇▇▇'▇ obligations under Section (2) of this Agreement
in the event of Capital's failure to do so.
(7) Not a Guaranty. This Agreement is not intended to be and is not, and
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nothing herein contained and nothing done by ▇▇▇▇ ▇▇▇▇▇▇▇ pursuant to this
Agreement shall be deemed to constitute, a guaranty by ▇▇▇▇ ▇▇▇▇▇▇▇ of the
payment of the interest or principal of any obligations, indebtedness or
liability of any kind or character and howsoever evidenced or arising of
Capital or any of the other ▇▇▇▇ ▇▇▇▇▇▇▇ companies to any person or persons
whomsoever.
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(8) Termination By Deposit of Funds. If and to the extent that ▇▇▇▇ ▇▇▇▇▇▇▇
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shall deposit or shall cause to be deposited, in trust at a bank or trust
company organized under the laws of any State of the United States or a
national building association, in any such case having capital stock,
surplus and undivided profits aggregating at least $50,000,000 (hereinafter
referred to as the "Depository"), money, or direct obligations of, or
obligations secured fully by direct obligations of, or obligations
unconditionally guaranteed as to payment of principal and interest by, the
United States of America, the principal of and interest on which when due
will provide funds in amount sufficient to pay when due and payable the
principal of, and premium, if any, and interest on, all Covered Credit
which is outstanding as of the close of business on the date of such
deposit, and, if such deposit shall be accompanied by an irrevocable
written direction from ▇▇▇▇ ▇▇▇▇▇▇▇ to the Depository to apply such deposit
to the payment of the principal of and premium, if any, and interest on,
such Covered Credit as and when the same shall become due and payable, then
this Agreement shall forthwith terminate and be of no further force and
effect.
(9) Amendment, Modification; Termination By Notice. This Agreement may be
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amended or modified only by an agreement in writing executed by both of the
parties hereto, and, in addition to the termination provisions of Section
(8), this Agreement may be terminated by either party hereto
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by written notice given to the other party not less than thirty (30) days
in advance of the date specified in such notice for such termination ("Cut-
off Date'); provided, however, that no such amendment or modification, and
no such termination shall relieve ▇▇▇▇ ▇▇▇▇▇▇▇ of any of its obligations
under this Agreement or in any way affect adversely the rights of Covered
Creditors under this Agreement unless and until all Covered Credit which
is outstanding as of the close of business on the effective date of such
amendment or modification or the Cut-off Date shall either (A) have been
paid in full or (B) have been unconditionally guaranteed as to payment of
principal, premium, if any, and interest by ▇▇▇▇ ▇▇▇▇▇▇▇ pursuant to an
agreement entered into between ▇▇▇▇ ▇▇▇▇▇▇▇ and Capital for the benefit of
Covered Creditors.
(10) Communications. All communications provided for herein shall be delivered,
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or mailed (by first class mail, postage prepaid), addressed (A) if to ▇▇▇▇
▇▇▇▇▇▇▇, to ▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance Company, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Vice President and
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Treasurer, or (B) if to Capital, to ▇▇▇▇ ▇▇▇▇▇▇▇ Capital Corporation, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: President.
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(11) Other. This Agreement is intended to take effect as a sealed instrument.
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This Agreement shall be binding upon ▇▇▇▇ ▇▇▇▇▇▇▇, its successors and
assigns, and shall inure to the benefit of Capital, its successors and
assigns.
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This Agreement constitutes the entire agreement of ▇▇▇▇ ▇▇▇▇▇▇▇ and Capital
with respect to the subject matter hereof. The headings of this Agreement
are for reference only and shall not affect the meaning hereof. This
Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, ▇▇▇▇ ▇▇▇▇▇▇▇ and Capital have caused this Agreement to
be executed and delivered by their respective officers thereunto duly authorized
as of the date first above written.
▇▇▇▇ ▇▇▇▇▇▇▇ MUTUAL LIFE
INSURANCE COMPANY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL CORPORATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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