EXHIBIT 10.1
================================================================================
$350,000,000
CREDIT AGREEMENT
DATED AS OF JUNE 29, 2004
AMONG
MONEYGRAM INTERNATIONAL, INC.,
THE LENDERS,
BANK ONE, NA
AS AGENT,
WACHOVIA BANK, NATIONAL ASSOCIATION
AND
BANK OF AMERICA, N.A.
AS CO-SYNDICATION AGENTS
AND
KEYBANK NATIONAL ASSOCIATION
AND
U.S. BANK NATIONAL ASSOCIATION
AS CO-DOCUMENTATION AGENTS
================================================================================
BANC ONE CAPITAL MARKETS, INC.
AND
WACHOVIA CAPITAL MARKETS, LLC
AS JOINT LEAD ARRANGERS AND JOINT BOOK RUNNERS
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.............................................1
ARTICLE II THE CREDITS...........................................16
2.1 Term Loans............................................16
2.2 Term Loan Amortization................................16
2.3 Commitment............................................16
2.4 Required Payments; Termination........................17
2.5 Ratable Loans.........................................17
2.6 Types of Advances.....................................17
2.7 Swing Line Loans......................................17
2.8 Facility Fee; Reductions and Increases in
Aggregate Revolving Credit Commitment.................19
2.9 Minimum Amount of Each Advance........................20
2.10 Optional Principal Payments...................... ....20
2.11 Method of Selecting Types and Interest
Periods for New Advances..............................20
2.12 Conversion and Continuation of Outstanding Advances...21
2.13 Changes in Interest Rate, etc.........................21
2.14 Rates Applicable After Default........................22
2.15 Method of Payment.....................................22
2.16 Noteless Agreement; Evidence of Indebtedness..........22
2.17 Telephonic Notices....................................23
2.18 Interest Payment Dates; Interest and Fee Basis........23
2.19 Notification of Advances, Interest Rates,
Prepayments and Revolving Credit Commitment
Reductions............................................24
2.20 Lending Installations.................................24
2.21 Non-Receipt of Funds by the Agent.....................24
2.22 Facility LCs..........................................24
2.23 Replacement of Lender.................................29
ARTICLE III YIELD PROTECTION; TAXES..............................29
3.1 Yield Protection.......................................29
3.2 Changes in Capital Adequacy Regulations................30
3.3 Availability of Types of Advances......................31
3.4 Funding Indemnification................................31
3.5 Taxes..................................................31
3.6 Lender Statements; Survival of Indemnity...............33
ARTICLE IV CONDITIONS PRECEDENT..................................33
4.1 Initial Credit Extension...............................33
4.2 Subsequent Credit Extensions...........................35
4.3 Each Credit Extension..................................35
ARTICLE V REPRESENTATIONS AND WARRANTIES.........................36
5.1 Existence and Standing.................................36
5.2 Authorization and Validity.............................36
-i-
5.3 No Conflict; Government Consent........................36
5.4 Financial Statements...................................37
5.5 Material Adverse Change................................37
5.6 Taxes..................................................37
5.7 Litigation and Contingent Obligations..................37
5.8 Subsidiaries...........................................37
5.9 ERISA..................................................37
5.10 Accuracy of Information...............................38
5.11 Regulation U..........................................38
5.12 Material Agreements...................................38
5.13 Compliance With Laws..................................38
5.14 Ownership of Properties...............................38
5.15 Plan Assets; Prohibited Transactions..................38
5.16 Environmental Matters.................................38
5.17 Investment Company Act................................39
5.18 Public Utility Holding Company Act....................39
5.19 Insurance.............................................39
5.20 Solvency..............................................39
ARTICLE VI COVENANTS.............................................40
6.1 Financial Reporting....................................40
6.2 Use of Proceeds........................................41
6.3 Notice of Default......................................41
6.4 Conduct of Business....................................41
6.5 Taxes..................................................41
6.6 Insurance..............................................42
6.7 Compliance with Laws...................................42
6.8 Maintenance of Properties..............................42
6.9 Inspection.............................................42
6.10 Dividends.............................................42
6.11 Indebtedness..........................................43
6.12 Merger................................................43
6.13 Sale of Assets........................................43
6.14 Investments and Acquisitions..........................43
6.15 Liens.................................................44
6.16 Affiliates............................................45
6.17 Amendments to Agreements..............................45
6.18 Contingent Obligations................................45
6.19 Inconsistent Agreements...............................45
6.20 Financial Covenants...................................45
6.21 Subsidiary Guarantees.................................46
ARTICLE VII DEFAULTS.............................................46
7.1 Representation or Warranty.............................46
7.2 Non-Payment............................................46
7.3 Specific Defaults......................................46
7.4 Other Defaults.........................................46
7.5 Cross-Default..........................................46
7.6 Insolvency; Voluntary Proceedings......................46
7.7 Involuntary Proceedings................................47
-ii-
7.8 Condemnation, Seizure..................................47
7.9 Judgments..............................................47
7.10 Unfunded Liabilities; Reportable Event................47
7.11 Change in Control.....................................47
7.12 Withdrawal Liability..................................47
7.13 Guaranty..............................................48
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES......48
8.1 Acceleration; Facility LC Collateral Account...........48
8.2 Amendments.............................................49
8.3 Preservation of Rights.................................50
ARTICLE IX GENERAL PROVISIONS....................................50
9.1 Survival of Representations............................50
9.2 Governmental Regulation................................50
9.3 Headings...............................................50
9.4 Entire Agreement.......................................50
9.5 Several Obligations; Benefits of this Agreement........50
9.6 Expenses; Indemnification..............................51
9.7 Left Blank Intentionally...............................51
9.8 Accounting.............................................51
9.9 Severability of Provisions.............................52
9.10 Nonliability of Lenders...............................52
9.11 Confidentiality.......................................52
9.12 Nonreliance...........................................52
9.13 Disclosure............................................52
9.14 USA PATRIOT ACT NOTIFICATION..........................53
9.15 Cash Collateral Release...............................53
ARTICLE X THE AGENT..............................................53
10.1 Appointment; Nature of Relationship...................53
10.2 Powers................................................53
10.3 General Immunity......................................54
10.4 No Responsibility for Loans, Recitals, etc............54
10.5 Action on Instructions of Lenders.....................54
10.6 Employment of Agents and Counsel......................54
10.7 Reliance on Documents; Counsel........................55
10.8 Agent's Reimbursement and Indemnification.............55
10.9 Notice of Default.....................................55
10.10 Rights as a Lender...................................55
10.11 Lender Credit Decision...............................56
10.12 Successor Agent......................................56
10.13 Agent and Arranger Fees..............................56
10.14 Delegation to Affiliates.............................57
10.15 Co-Documentation Agents, Syndication Agent, etc......57
ARTICLE XI SETOFF; RATABLE PAYMENTS..............................57
11.1 Setoff................................................57
11.2 Ratable Payments......................................57
-iii-
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS....57
12.1 Successors and Assigns................................57
12.2 Participations........................................58
12.3 Assignments...........................................59
12.4 Dissemination of Information..........................61
12.5 Tax Treatment.........................................61
ARTICLE XIII NOTICES.............................................61
13.1 Notices; Effectiveness; Electronic Communication......61
ARTICLE XIV COUNTERPARTS; INTEGRATION; EFFECTIVENESS;
ELECTRONIC EXECUTION........................................62
14.1 Counterparts; Effectiveness...........................62
14.2 Electronic Execution of Assignments...................62
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION;
WAIVER OF JURY TRIAL........................................63
15.1 CHOICE OF LAW.........................................63
15.2 CONSENT TO JURISDICTION...............................63
15.3 WAIVER OF JURY TRIAL..................................63
-iv-
EXHIBITS AND SCHEDULES
SCHEDULES
PRICING SCHEDULE
COMMITMENT SCHEDULE
Schedule 5.8 Subsidiaries (Section 5.8)
Schedule 5.14 Ownership of Properties (Section 5.14)
Schedule 6.11 Indebtedness (Section 6.11)
Schedule 6.15 Permitted Existing Liens (Section 6.15)
Schedule 6.18 Contingent Obligations
EXHIBITS
Exhibit A -- Form of Revolving Credit Note
Exhibit B -- Form of Term Note
Exhibit C -- Form of Swing Line Note
Exhibit D -- Form of Assignment and Assumption Agreement
Exhibit E -- Form of Money Transfer Instructions
Exhibit F -- Form of Compliance Certificate
-v-
CREDIT AGREEMENT
This Agreement, dated as of June 29, 2004, is among MoneyGram
International, Inc., a Delaware corporation, the Lenders and Bank One, NA, a
national banking association having its principal office in Chicago, Illinois,
as LC Issuer, as a Swing Line Lender and as Agent.
R E C I T A L S
A. The Borrower has requested the Lenders to make financial accommodations
to it in the aggregate principal amount of up to $350,000,000; and
B. The Lenders are willing to extend such financial accommodations on the
terms and conditions set forth below.
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements made herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquired Company" is defined in Section 6.14.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage
or voting power) of the outstanding ownership interests of a partnership or
limited liability company.
"Advance" means a borrowing hereunder, (i) made by the Lenders on the same
Borrowing Date, or (ii) converted or continued by the Lenders on the same date
of conversion or continuation, consisting, in either case, of the aggregate
amount of the several Loans of the same Type and, in the case of Eurodollar
Loans, for the same Interest Period. The term "Advance" shall include Swing Line
Loans unless otherwise expressly provided.
"Affected Lender" is defined in Section 2.23.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power
1
to direct or cause the direction of the management or policies of the controlled
Person, whether through ownership of stock, by contract or otherwise.
"Agent" means Bank One in its capacity as contractual representative of
the Lenders pursuant to Article X, and not in its individual capacity as a
Lender, and any successor Agent appointed pursuant to Article X.
"Agents" means, together, the Administrative Agent and Wachovia Bank,
National Association, as Co-Syndication Agent.
"Aggregate Outstanding Revolving Credit Exposure" means, at any time, the
aggregate of the Outstanding Revolving Credit Exposure of all the Lenders.
"Aggregate Revolving Credit Commitment" means the aggregate of the
Revolving Credit Commitments of all the Lenders, as reduced or increased from
time to time pursuant to the terms hereof. The initial Aggregate Revolving
Credit Commitment is $250,000,000.
"Aggregate Term Loan Commitment" means the aggregate of the Term Loan
Commitments of all the Lenders. The initial Aggregate Term Loan Commitment is
$100,000,000.
"Agreement" means this credit agreement, as it may be amended or modified
and in effect from time to time.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of the
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Fee Rate" means, at any time, the percentage rate per annum at
which facility fees are accruing on the Aggregate Revolving Credit Commitment
(without regard to usage) and LC Fees are accruing or are required to be paid on
outstanding Facility LCs, in each case at such time as set forth in the Pricing
Schedule.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Arrangers" means Banc One Capital Markets, Inc. and Wachovia Capital
Markets, Inc., and their respective successors, in their capacities as Joint
Lead Arranger and Joint Book Runner.
"Article" means an article of this Agreement unless another document is
specifically referenced.
2
"Authorized Officer" means any of the Chairman, Chief Executive Officer,
President, Chief Financial Officer, Treasurer, Assistant Treasurer or Controller
of the Borrower, acting singly.
"Bank One" means Bank One, NA, a national banking association having its
principal office in Chicago, Illinois, in its individual capacity, and its
successors.
"Base Dividend Amount" means (i) for calendar year 2004, $20,000,000 and
(ii) for each subsequent calendar year an amount equal to 30% of Consolidated
Net Income for the calendar year immediately preceding such calendar year.
"Borrower" means MoneyGram International, Inc., a Delaware corporation,
and its successors and assigns.
"Borrowing Date" means a date on which a Credit Extension is made
hereunder.
"Borrowing Notice" is defined in Section 2.11.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York City for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in United States
dollars are carried on in the London interbank market and (ii) for all other
purposes, a day (other than a Saturday or Sunday) on which banks generally are
open in Chicago for the conduct of substantially all of their commercial lending
activities and interbank wire transfers can be made on the Fedwire system.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person other than a corporation and
any and all warrants, rights or options to purchase any of the foregoing.
"Capitalized Lease" of a Person means any lease of Property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with GAAP.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with GAAP.
"Cash Collateral Agreement" means the cash collateral agreement entered
into between Travelers and the Agent on the date hereof.
"Change" is defined in Section 3.2.
"Change in Control" means the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934) of 20% or more of the outstanding shares of voting stock of the
Borrower.
3
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral Shortfall Amount" is defined in Section 8.1.
"Commitment" means a Revolving Credit Commitment or Term Loan Commitment.
"Commitment Schedule" means the Schedule attached hereto identified as
such.
"Consolidated EBIT" means Consolidated Net Income PLUS, to the extent
deducted from revenues in determining Consolidated Net Income, (i) Consolidated
Interest Expense, (ii) tax expense and (iii) nonrecurring and extraordinary
losses, MINUS, to the extent included in Consolidated Net Income, nonrecurring
and extraordinary gains, all calculated for the Borrower and its Subsidiaries on
a consolidated basis. For purposes hereof, Consolidated EBIT for the fiscal
quarters ending September 30, 2003, December 31, 2003 and March 31, 2004 shall
be deemed to be $28,103,000, $34,306,000 and $30,168,000 respectively. For any
computation period during which (i) an Acquired Company is acquired or (ii) a
Disposed Company is sold, Consolidated EBIT shall be calculated on a pro forma
basis as if such Acquired Company or Disposed Company, as the case may be, had
been acquired (and any related Indebtedness incurred) or sold (and any related
Indebtedness disposed), as the case may be, on the first day of such computation
period.
"Consolidated EBITDA" means Consolidated Net Income PLUS, to the extent
deducted from revenues in determining Consolidated Net Income, (i) Consolidated
Interest Expense, (ii) tax expense, (iii) depreciation, (iv) amortization, and
(v) nonrecurring and extraordinary losses, MINUS, to the extent included in
Consolidated Net Income, nonrecurring and extraordinary gains, all calculated
for the Borrower and its Subsidiaries on a consolidated basis. For purposes
hereof, Consolidated EBITDA for the fiscal quarters ending September 30, 2003,
December 31, 2003 and March 31, 2004 shall be deemed to be $34,944,000,
$41,611,000 and $37,391,000, respectively. For any computation period during
which (i) an Acquired Company is acquired or (ii) a Disposed Company is sold,
Consolidated EBITDA shall be calculated on a pro forma basis as if such Acquired
Company or Disposed Company, as the case may be, had been acquired (and any
related Indebtedness incurred) or sold (and any related Indebtedness disposed),
as the case may be, on the first day of such computation period.
"Consolidated Interest Expense" means, with reference to any period, the
interest expense of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period. For any computation period during which an
Acquired Company is acquired, Consolidated Interest Expense shall be calculated
on a pro forma basis as if any Indebtedness incurred in connection with the
acquisition of such Acquired Company had been incurred on the first day of such
computation period.
"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period.
"Consolidated Net Worth" means at any time the consolidated stockholders'
equity plus or minus the accumulated Other Comprehensive Income (Loss) of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such
time.
4
"Consolidated Total Capitalization" means, at any time, the sum of
Consolidated Total Indebtedness and Consolidated Net Worth, each calculated at
such time.
"Consolidated Total Indebtedness" means, at any time, the Indebtedness of
the Borrower and its Subsidiaries calculated on a consolidated basis as of such
time.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership;
provided that none of the above shall constitute a Contingent Obligation if such
other Person is a (i) Guarantor or (ii) Special Purpose Subsidiary.
"Controlled Group" means all members of a controlled group of corporations
or other business entities and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any of
its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Conversion/Continuation Notice" is defined in Section 2.12.
"Co-Syndication Agents" means Wachovia and Bank Of America, N.A. in their
respective roles as Co-Syndication Agent.
"Credit Extension" means the making of an Advance or the issuance of a
Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or the
issuance date for a Facility LC hereunder.
"Default" means an event described in Article VII.
"Disposed Company" means an entity or going business sold by the Borrower
or any of its Subsidiaries by way of sale of equity or substantially all of the
assets of such entity and otherwise permitted by this Agreement.
"Dollars" means lawful currency of the United States of America.
"Domestic Subsidiary" means any Subsidiary of the Borrower organized under
the laws of any jurisdiction within the United States of America.
"Effective Date" means the date upon which the initial Credit Extension is
made.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to (i) the
protection of the environment, (ii) the effect of the environment on human
5
health, (iii) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into surface water, ground water or land, or (iv)
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which, except as otherwise provided
in Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the applicable British Bankers' Association LIBOR rate
for deposits in U.S. dollars as reported on Telerate Page 3750, or if such
reporting service is not available, by any generally recognized financial
information service as of 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, and having a maturity equal to such
Interest Period, PROVIDED that, if no such British Bankers' Association LIBOR
rate is available to the Agent, the applicable Eurodollar Base Rate for the
relevant Interest Period shall instead be the rate determined by the Agent to be
the rate at which Bank One or one of its Affiliate banks offers to place
deposits in U.S. dollars with first-class banks in the interbank market at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period, in the approximate amount of Bank One's relevant
Eurodollar Loan and having a maturity equal to such Interest Period.
"Eurodollar Loan" means a Loan which, except as otherwise provided in
Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(ii) the Applicable Margin.
"Excluded Taxes" means, in the case of each Lender or applicable Lending
Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or (ii) the jurisdiction
in which the Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another document
is specifically referenced.
"Existing LC" means that certain Standby Letter of Credit ▇▇▇▇▇▇▇▇ issued
by Bank One, NA for the benefit of Travelers and/or Branch Banking and Trust
Company in the amount of $60,000,000.
"Facility LC" is defined in Section 2.22.1.
"Facility LC Application" is defined in Section 2.22.3.
6
"Facility LC Collateral Account" is defined in Section 2.22.11.
"Facility Termination Date" means the earlier of (i) June 30, 2008 or (ii)
any earlier date on which the Aggregate Commitment is reduced to zero or
otherwise terminated pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any such day which is
a Business Day, the average of the quotations at approximately 10:00 a.m.
(Chicago time) on such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by the Agent in its sole
discretion.
"Fitch" means Fitch, Inc.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) the Applicable Margin, in each case
changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan which, except as otherwise provided in
Section 2.11, bears interest at the Floating Rate.
"Form 10" means that certain filing on Securities and Exchange Commission
Form 10 of the Borrower filed with the Securities and Exchange Commission on
June 3, 2004 as amended by the filing on Securities and Exchange Commission Form
10-12B/A filed with the Securities and Exchange Commission on June 17, 2004.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States, applied in a manner consistent with that used
in preparing the financial statements referred to in Section 5.4.
"Guarantors" means, Travelers, MoneyGram Payment Systems, Inc., a Delaware
corporation, FSMC, Inc., a Minnesota corporation and CAG Inc., a Nevada
corporation, and each other Subsidiary which, after the date hereof, becomes a
Material Domestic Subsidiary of the Borrower, and its successors and assigns,
other than a Special Purpose Subsidiary.
"Guaranty" means that certain Guaranty dated as of the date hereof
executed by each Guarantor in favor of the Agent, for the ratable benefit of the
Lenders, as it may be amended or modified and in effect from time to time.
7
"Indebtedness" of a Person means, without duplication, such Person's (i)
obligations for borrowed money, (ii) obligations representing the deferred
purchase price of Property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (iii) obligations, whether or not assumed, secured by Liens or payable
out of the proceeds or production from Property now or hereafter owned or
acquired by such Person, (iv) obligations which are evidenced by notes,
acceptances, or other instruments, (v) Capitalized Lease Obligations, (vi)
Letters of Credit, (vii) Contingent Obligations, (viii) Rate Management
Obligations, (ix) Receivables Transaction Attributed Indebtedness and (x) any
other obligation for borrowed money or other financial accommodation which in
accordance with GAAP would be shown as a liability on the consolidated balance
sheet of such Person. For the purposes hereof, the amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in respect of
which such Contingent Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. Notwithstanding the foregoing, the following
shall not constitute Indebtedness: (i) obligations under Repurchase Agreements,
(ii) Payment Services Obligations, (iii) obligations to repay Payment
Instruments Funding Amounts, (iv) Rate Management Obligations (to the extent
incurred in the ordinary course of business and not for speculative purposes),
(v) ordinary course contractual obligations with clearing banks relative to
clearing accounts and (vi) Receivables Transactions Attributed Indebtedness so
long as the aggregate outstanding amount thereof at the time of determination is
not in excess of $450,000,000 (but any excess amount thereof over $450,000,000
shall constitute Indebtedness).
"Interest Period" means, with respect to a Eurodollar Advance, a period of
one, two, three or six months commencing on a Business Day selected by the
Borrower pursuant to this Agreement. Such Interest Period shall end on the day
which corresponds numerically to such date one, two, three or six months
thereafter, PROVIDED, HOWEVER, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Interest Period shall end on the last Business Day of such next, second, third
or sixth succeeding month. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, PROVIDED, HOWEVER, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than commission,
travel and similar advances to officers and employees made in the ordinary
course of business), extension of credit (other than accounts receivable arising
in the ordinary course of business on terms customary in the trade) or
contribution of capital by such Person; stocks, bonds, mutual funds, partnership
interests, notes, debentures or other securities owned by such Person; any
deposit accounts and certificate of deposit owned by such Person; and structured
notes, derivative financial instruments and other similar instruments or
contracts owned by such Person.
"LC Fee" is defined in Section 2.22.4.
"LC Issuer" means Bank One (or any subsidiary or affiliate of Bank One
designated by Bank One) in its capacity as issuer of Facility LCs hereunder.
8
"LC Obligations" means, at any time, the sum, without duplication, of (i)
the aggregate undrawn stated amount under all Facility LCs outstanding at such
time plus (ii) the aggregate unpaid amount at such time of all Reimbursement
Obligations.
"LC Payment Date" is defined in Section 2.22.5.
"Lenders" means the lending institutions listed on the signature pages of
this Agreement and their respective successors and assigns. Unless otherwise
specified, the term "Lenders" includes Bank One in its capacity as Swing Line
Lender.
"Lending Installation" means, with respect to a Lender or the Agent, the
office, branch, subsidiary or affiliate of such Lender or the Agent listed on
the signature pages hereof or on a Schedule or otherwise selected by such Lender
or the Agent pursuant to Section 2.20.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or under which the obligations thereunder
constitute a Contingent Obligation of such Person.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, encumbrance or preference, priority or other security
agreement of any kind or nature whatsoever (including, without limitation, the
interest of a vendor or lessor under any conditional sale, Capitalized Lease or
other title retention agreement). For the purposes hereof, none of the following
shall be deemed to be Liens: (i) set-off rights arising in the ordinary course
of business, (ii) restrictive contractual obligations with respect to assets
comprising the Payment Instruments Funding Amounts or Payment Services
Obligations, (iii) liens purported to be created under Repurchase Agreements, or
(iv) ordinary course of business contractual obligations with clearing banks
relative to clearing accounts.
"Loan" means a Revolving Loan, a Term Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, the Facility LC Applications and
any Notes issued pursuant to Section 2.16, the Guaranty and the Cash Collateral
Agreement.
"Loan Parties" means the Borrower and each Subsidiary of the Borrower that
is a party to a Loan Document.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents to
which it is a party, or (iii) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Agent or the Lenders thereunder. The
consummation of the Spin-Off Transaction substantially as described in the Form
10 shall in no event be deemed to create a Material Adverse Effect pursuant to
clause (i) above.
"Material Domestic Subsidiary" means a Domestic Subsidiary (other than a
Special Purpose Subsidiary) which either has (i) 5% or more of the assets
(valued at the greater of book or fair market value) of the Borrower and its
Subsidiaries determined on a consolidated basis as of the fiscal quarter end
next preceding the date of determination or (ii) is responsible for 5% or
9
more of Consolidated Net Income for the four quarter period ending on the fiscal
quarter end next preceding the date of determination.
"Material Indebtedness" means Indebtedness and/or Rate Management
Obligations in an outstanding principal or net payment amount of $20,000,000 or
more in the aggregate (or the equivalent thereof in any currency other than U.S.
dollars).
"Material Indebtedness Agreement" means any agreement under which any
Material Indebtedness was created or is governed or which provides for the
incurrence of Indebtedness in an amount which would constitute Material
Indebtedness (whether or not an amount of Indebtedness constituting Material
Indebtedness is outstanding thereunder).
"Modify" and "Modification" are defined in Section 2.22.1.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer (as
described in Section 4001(a)(3) of ERISA) is obligated to make contributions.
"Non-Equity Consideration" means, with respect to any Acquisition,
consideration paid and debt assumed in consideration thereof exclusive of any
common stock of the Borrower included in such consideration.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means any one or more of a Revolving Credit Note, Term Note or
Swing Line Note.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all Reimbursement Obligations, all accrued and unpaid
fees and all expenses, reimbursements, indemnities and other obligations of the
Borrower to the Lenders or to any Lender, the Agent or any indemnified party
arising under the Loan Documents.
"Other Comprehensive Income (Loss)" means comprehensive income or loss
under FASB Statement of Financial Accounting Standard Nos. 115 and 133.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Revolving Credit Exposure" means, as to any Lender at any
time, the sum of (i) the aggregate principal amount of its Revolving Loans
outstanding at such time, plus (ii) an amount equal to its Pro Rata Share of the
LC Obligations at such time, plus (iii) an amount equal to its Pro Rata Share of
the aggregate principal amount of Swing Line Loans outstanding at such time.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each calendar year quarter.
10
"Payment Instruments Funding Amounts" means amounts advanced to and
retained by the Borrower and its Subsidiaries as advance funding for the payment
instruments or obligations arising under an official check agreement or a
customer agreement entered into in the ordinary course of business.
"Payment Services Obligations" means the obligations of the Borrower and
its Subsidiaries in the ordinary course of their respective businesses to pay
outstanding payment instruments or obligations pursuant to an official check
agreement or customer agreement or as principal or issuer of a payment
instrument or obligation, including but not limited to money orders, money
transfers, stored value cards, rebates, WIC payments and similar obligations, as
reflected on the financial statements of the Borrower delivered by the Borrower
from time to time pursuant to Section 6.1(i) or (ii).
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Pricing Schedule" means the Schedule attached hereto identified as such.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
"Pro Rata Share" means, with respect to a Lender, a portion equal to a
fraction the numerator of which is such Lender's Revolving Credit Commitment
(or, if the Aggregate Revolving Credit Commitment has expired or been
terminated, its Outstanding Revolving Credit Exposure) and the denominator of
which is the Aggregate Revolving Credit Commitments (or, if the Aggregate
Revolving Credit Commitment has expired or been terminated, the Aggregate
Outstanding Revolving Credit Exposures).
"Purchasers" is defined in Section 12.3.1.
"Rate Management Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.
11
"Rate Management Transaction" means any transaction (including an
agreement with respect thereto) now existing or hereafter entered into by the
Borrower or any Subsidiary which is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
forward transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any
option with respect to any of these transactions) or any combination thereof,
whether linked to one or more interest rates, foreign currencies, commodity
prices, equity prices or other financial measures.
"Receivables Transaction" means any transaction or series of transactions
entered into by the Borrower or any Subsidiary pursuant to which the Borrower or
any Subsidiary may sell, convey or otherwise transfer to a Person accounts or
notes receivable and rights related thereto.
"Receivables Transaction Attributed Indebtedness" means, at any time, the
amount of obligations outstanding at such time under the legal documents entered
into as part of any Receivables Transaction that would be characterized as
principal if such Receivables Transaction were structured as a secured lending
transaction rather than as a purchase.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Borrower then outstanding under Section 2.22 to reimburse the
LC Issuer for amounts paid by the LC Issuer in respect of any one or more
drawings under Facility LCs.
"Rentals" of a Person means the aggregate fixed amounts payable by such
Person under any Operating Lease.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Single
Employer Plan, excluding, however, such events as to which the PBGC has by
regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event, PROVIDED, HOWEVER, that
a failure to meet the minimum funding standard of Section 412 of the Code and of
Section 302 of ERISA shall be a Reportable Event regardless of the issuance of
any such waiver of the notice requirement in accordance with either Section
4043(a) of ERISA or Section 412(d) of the Code.
"Repurchase Agreement" means an agreement of a Person to purchase
securities arising out of or in connection with the sale of the same or
substantially similar securities.
12
"Required Lenders" means Lenders in the aggregate having at least 51% of
the sum of (i) the Aggregate Term Loan Commitment or, after the Term Loan has
been made, the Term Balance, plus (ii) the Aggregate Revolving Credit Commitment
or, if the Aggregate Revolving Credit Commitment has been terminated, the sum of
(i) the aggregate unpaid principal amount of the outstanding Revolving Loans and
Swing Line Loans PLUS (ii) the aggregate amount of the outstanding Reimbursement
Obligations.
"Required Revolving Lenders" means Lenders in the aggregate having at
least 51% of the Aggregate Revolving Credit Commitment or, if the Aggregate
Revolving Credit Commitment has been terminated, the sum of (i) the aggregate
unpaid principal amount of the outstanding Revolving Loans and Swing Line Loans
PLUS (ii) the aggregate amount of the outstanding Reimbursement Obligations.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Restricted Payment" means any dividend or distribution in respect of the
Capital Stock of the Borrower or any redemption, repurchase, acquisition or
other retirement of the Capitol Stock of the Borrower.
"Revolving Credit Advance" means an Advance made by the Lenders to the
Borrower pursuant to Section 2.3.
"Revolving Credit Commitment" means, for each Lender, the obligation of
such Lender to make Loans to and participate in Facility LCs issued upon the
application of, the Borrower pursuant to Section 2.3 in an aggregate amount at
any one time outstanding not exceeding the amount set forth opposite its name
under the heading "Revolving Credit Commitment" on the Commitment Schedule, as
such amount may be increased or reduced from time to time pursuant to the terms
of this Agreement.
"Revolving Loan" means, with respect to a Lender, such Lender's loans made
pursuant to Section 2.3.
"Revolving Credit Note" means a promissory note in substantially the form
of EXHIBIT A hereto, with appropriate insertions, and payable to the order of a
Lender in the amount of its Revolving Credit Commitment, including any
amendment, modification, renewal or replacement of such promissory note.
"S&P" means Standard and Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc.
"Schedule" refers to a specific schedule to this Agreement, unless another
document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
13
"Separation Agreements" means one or more of the Separation and
Distribution Agreement, the Tax Sharing Agreement, the Interim Services
Agreement and the Employee Benefit Agreement entered into between the Borrower
and Viad with respect to the Spin-Off Transaction substantially as described in
the Form 10.
"Single Employer Plan" means a Plan (other than a Multiemployer Plan)
maintained by the Borrower or any member of the Controlled Group for employees
of the Borrower or any member of the Controlled Group.
"Special Purpose Subsidiary" means any Wholly-Owed Subsidiary of the
Borrower formed for the limited organizational purpose of isolating and
transferring a limited and specified pool of assets and related rights and
obligations with respect to Payment Service Obligations.
"Spin-Off Documents" means the operative documents pursuant to which the
Spin-Off Transaction is effected.
"Spin-Off Transaction" means the tax-free spin-off transaction pursuant to
which (i) Travelers merges into a Wholly-Owned Subsidiary of the Borrower and
thereby becomes a direct Wholly-Owned Subsidiary of the Borrower in exchange for
the Viad Payment, (ii) Viad declares and distributes a dividend of the
Borrower's common stock, constituting all of the outstanding Borrower common
stock on such date, (iii) Travelers pays to Viad approximately $35,000,000 in
respect of certain alternative minimum tax credits and approximately $7,250,000
with respect to deferred compensation obligations, (iv) Travelers declares and
pays a dividend to Viad in an amount estimated to be the equivalent to the net
income of Travelers from the beginning of fiscal year 2004 through the date of
the events described in clause (ii) hereof, and (v) all transactions related
thereto, all substantially as described in the Form 10.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture,
business trust or similar business organization more than 50% of the ownership
interests having ordinary voting power of which shall at the time be so owned or
controlled. Unless otherwise expressly provided, all references herein to a
"Subsidiary" shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the Borrower
and its Subsidiaries, Property which represents more than 10% of the
consolidated assets of the Borrower and its Subsidiaries or property which is
responsible for more than 10% of the Consolidated Net Income, in each case, as
would be shown in the consolidated financial statements of the Borrower and its
Subsidiaries as at the beginning of the twelve-month period ending with the
month in which such determination is made (or if financial statements have not
been delivered hereunder for that month which begins the twelve-month period,
then the financial statements delivered hereunder for the quarter ending
immediately prior to that month).
"Swing Line Borrowing Notice" is defined in Section 2.7.2.
"Swing Line Lenders" means Bank One and Wachovia.
14
"Swing Line Loan" means a Loan made available to the Borrower by the Swing
Line Lenders pursuant to Section 2.7.
"Swing Line Note" means a promissory note, in substantially the form of
EXHIBIT C hereto, with appropriate insertions, and payable to the order of a
Swing Line Lender in the principal amount of $35,000,000, including any
amendment, modification, renewal or replacement of such promissory note.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but EXCLUDING Excluded Taxes and Other Taxes.
"Term Balance" means, at any time, the then aggregate outstanding
principal amount of the Term Loans.
"Term Loan" means, with respect to each Lender, such Lender's pro-rata
portion of the term Advance made by the Lenders pursuant to Section 2.1 and,
with respect to all Lenders, the aggregate of all such pro-rata portions.
"Term Loan Commitment" means, for each Lender, the obligation of such
Lender to make a single Loan to the Borrower pursuant to Section 2.1 in an
amount not exceeding the amount set forth opposite its name under the heading
"Term Loan Commitment" on the Commitment Schedule.
"Term Note" means a promissory note, in substantially the form of EXHIBIT
B hereto, with appropriate insertions, and payable to the order of a Lender in
the amount of such Lender's Term Loan, including any amendment, modification,
renewal or replacement of such promissory note.
"Total Commitment" means, for each Lender, the aggregate of such Lender's
Revolving Credit Commitment and Term Loan Commitment.
"Transferee" is defined in Section 12.4.
"Travelers" means Travelers Express Company, Inc., a Minnesota
corporation.
"Type" means, with respect to any Advance, its nature as a Floating Rate
Advance or a Eurodollar Advance and with respect to any Loan, its nature as a
Floating Rate Loan or a Eurodollar Loan.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"Viad" means Viad Corp, a Delaware corporation.
15
"Viad Payment" means the $150,000,000 cash payment to be paid to Viad by
the Borrower in consideration of the merger of Travelers into a wholly owned
subsidiary of Borrower.
"Wachovia" means Wachovia Bank, National Association.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of the
outstanding voting securities of which shall at the time be owned or controlled,
directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries
of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of
such Person, or (ii) any partnership, limited liability company, association,
joint venture, business trust or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1 TERM LOANS. Each Lender severally (and not jointly) agrees, on the
terms and conditions set forth in this Agreement, to make a Term Loan to the
Borrower on the initial Borrowing Date in the amount of its respective Term Loan
Commitment. No amount of the Term Loan which is repaid or prepaid by the
Borrower may be reborrowed hereunder. Not later than noon Chicago time on the
initial Borrowing Date, each Lender shall make available funds equal to its Term
Loan Commitment in immediately available funds in Chicago, to the Agent at its
address specified pursuant to Article XIII.
2.2 TERM LOAN AMORTIZATION. Except as otherwise expressly provided herein,
the Term Loan shall be payable in two installments in the amounts and on the
dates, set forth below:
PAYMENT DATE AMOUNT
------------ ------
June 30, 2007 $50,000,000 or 50%
of the Term Balance, whichever
is less.
June 30, 2008 100% of the Term Balance
2.3 COMMITMENT. From and including the Effective Date and prior to the
Facility Termination Date, each Lender severally agrees, on the terms and
conditions set forth in this Agreement, to (i) make Revolving Loans to the
Borrower and (ii) participate in Facility LCs issued upon the request of the
Borrower, PROVIDED that, after giving effect to the making of each such Loan and
the issuance of each such Facility LC, such Lender's Outstanding Revolving
Credit Exposure shall not exceed in the aggregate the amount of its Revolving
Credit Commitment and the Aggregate Outstanding Revolving Credit Exposure shall
not exceed the
16
Aggregate Revolving Credit Commitment. Subject to the terms of this Agreement,
the Borrower may borrow, repay and reborrow Revolving Loans at any time prior to
the Facility Termination Date. The Revolving Credit Commitments to extend credit
hereunder shall expire on the Facility Termination Date. The LC Issuer will
issue Facility LCs hereunder on the terms and conditions set forth in Section
2.22.
2.4 REQUIRED PAYMENTS; TERMINATION.
Any outstanding Credit Extensions and Reimbursement Obligations and all
other unpaid Obligations shall be paid in full by the Borrower on the earlier of
(i) the Facility Termination Date and (ii) the Business Day next following the
date of the initial Credit Extension; provided, however, that no payment
pursuant to Section 2.4(ii) shall be required if, on or prior to such Business
Day the conditions set forth in Section 4.2(ii) have been satisfied.
2.5 RATABLE LOANS. Each Revolving Credit Advance hereunder shall consist
of Revolving Loans made from the several Lenders ratably according to their Pro
Rata Shares.
2.6 TYPES OF ADVANCES. The Advances may be Floating Rate Advances or
Eurodollar Advances, or a combination thereof, selected by the Borrower in
accordance with Sections 2.11 and 2.12, or Swing Line Loans selected by the
Borrower in accordance with Section 2.7.
2.7 SWING LINE LOANS.
2.7.1 AMOUNT OF SWING LINE LOANS. Upon the satisfaction of the
conditions precedent set forth in Section 4.2 and, if such Swing
Line Loan is to be made on the date of the initial Advance
hereunder, the satisfaction of the conditions precedent set
forth in Section 4.1 as well, from and including the date of
this Agreement and prior to the Facility Termination Date, the
Swing Line Lenders may, in their sole discretion, on the terms
and conditions set forth in this Agreement, make Swing Line
Loans to the Borrower from time to time in an aggregate
outstanding principal amount not to exceed $35,000,000 in the
case of either Swing Line Lender or $70,000,000 in the
aggregate; PROVIDED that the Aggregate Outstanding Revolving
Credit Exposure shall not at any time exceed the Aggregate
Revolving Credit Commitment, and PROVIDED FURTHER that at no
time shall the sum of (i) either Swing Line Lender's Pro Rata
Share of the Swing Line Loans, PLUS (ii) the outstanding
Revolving Loans made by such Swing Line Lender pursuant to
Section 2.3, exceed such Swing Line Lender's Revolving Credit
Commitment at such time. Subject to the terms of this Agreement,
the Borrower may borrow, repay and reborrow Swing Line Loans at
any time prior to the Facility Termination Date.
2.7.2 SWING LINE BORROWING NOTICE. The Borrower shall deliver to the
Agent and the Swing Line Lenders irrevocable notice (a "Swing
Line Borrowing Notice") not later than noon (Chicago time) on
the Borrowing Date of each Swing Line Loan, specifying (i) the
applicable Borrowing Date (which date shall be a Business Day),
and (ii) the aggregate amount of the requested Swing Line Loan
which shall be an amount not less than $1,000,000. The Swing
Line Loans shall bear interest at the Floating Rate.
17
2.7.3 MAKING OF SWING LINE LOANS. Promptly after receipt of a Swing
Line Borrowing Notice, the Agent shall notify each Swing Line
Lender by fax, or other similar form of transmission, of the
requested Swing Line Loan. If either or both Swing Line Lenders
do not elect to make the requested Swing Line Loan, the Agent
shall notify the Borrower within one hour of receipt of the
Swing Line Borrowing Notice. If a Swing Line Lender elects to
make the requested Swing Line Loan, then not later than 2:00
p.m. (Chicago time) on the applicable Borrowing Date, such Swing
Line Lender shall make available a Swing Line Loan in a
principal amount equal to 50% of the amount of the original
Swing Line Loan request, in funds immediately available in
Chicago, to the Agent at its address specified pursuant to
Article XIII. The Agent will promptly make the funds so received
from a Swing Line Lender available to the Borrower on the
Borrowing Date to the account designated in writing by the
Borrower.
2.7.4 REPAYMENT OF SWING LINE LOANS. Each Swing Line Loan shall be
paid in full by the Borrower on or before the fifth (5th)
Business Day after the Borrowing Date for such Swing Line Loan.
In addition, either Swing Line Lender (i) may at any time in its
sole discretion with respect to any outstanding Swing Line Loan
made by it, or (ii) shall on the fifth (5th) Business Day after
the Borrowing Date of any Swing Line Loan made by it, require
each Lender (including each Swing Line Lender) to make a
Revolving Loan in the amount of such Lender's Pro Rata Share of
such Swing Line Loan (including, without limitation, any
interest accrued and unpaid thereon), for the purpose of
repaying such Swing Line Loan. Not later than noon (Chicago
time) on the date of any notice received pursuant to this
Section 2.7.4, each Lender shall make available its required
Revolving Loan, in funds immediately available in Chicago to the
Agent at its address specified pursuant to Article XIII.
Revolving Loans made pursuant to this Section 2.7.4 shall
initially be Floating Rate Loans and thereafter may be continued
as Floating Rate Loans or converted into Eurodollar Loans in the
manner provided in Section 2.11 and subject to the other
conditions and limitations set forth in this Article II. Unless
a Lender shall have notified the Swing Line Lenders, prior to
its making any Swing Line Loan, that any applicable condition
precedent set forth in Sections 4.1 or 4.2 had not then been
satisfied, such Lender's obligation to make Revolving Loans
pursuant to this Section 2.7.4 to repay Swing Line Loans shall
be unconditional, continuing, irrevocable and absolute and shall
not be affected by any circumstances, including, without
limitation, (a) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against the Agent, the
Swing Line Lenders or any other Person, (b) the occurrence or
continuance of a Default or Unmatured Default, (c) any adverse
change in the condition (financial or otherwise) of the
Borrower, or (d) any other circumstances, happening or event
whatsoever. In the event that any Lender fails to make payment
to the Agent of any amount due under this Section 2.7.4, the
Agent shall be entitled to receive, retain and apply against
such obligation the principal and interest otherwise payable to
such Lender hereunder until the Agent receives such payment from
such Lender or such obligation is otherwise fully satisfied. In
addition to the foregoing, if for any reason any Lender fails to
make payment to the Agent of any amount due under this Section
2.7.4, such Lender shall be deemed, at the option of the Agent,
to have unconditionally and irrevocably
18
purchased from the Swing Line Lenders, without recourse or
warranty, an undivided interest and participation in the
applicable Swing Line Loan in the amount of such Revolving Loan,
and such interest and participation may be recovered from such
Lender together with interest thereon at the Federal Funds
Effective Rate for each day during the period commencing on the
date of demand and ending on the date such amount is received.
On the Facility Termination Date, the Borrower shall repay in
full the outstanding principal balance of the Swing Line Loans.
2.8 FACILITY FEE; REDUCTIONS AND INCREASES IN AGGREGATE REVOLVING CREDIT
COMMITMENT.
(i) The Borrower agrees to pay to the Agent for the account of each
Lender a facility fee at a per annum rate equal to the
Applicable Fee Rate on such Lender's Revolving Credit Commitment
(whether used or unused) and Term Balance (or, prior to the
Effective Date, the Term Loan Commitment) from the date hereof
to and including the Facility Termination Date, payable on each
Payment Date hereafter and on the Facility Termination Date,
PROVIDED that, if any Lender continues to have Revolving Loans,
Reimbursement Obligations or a Term Loan outstanding hereunder
after the Facility Termination Date, then such facility fee
shall continue to accrue on the Outstanding Revolving Credit
Exposure and Term Loan owed to such Lender until such Revolving
Credit Exposure and such Term Loan have been paid in full.
(ii) The Borrower may permanently reduce the Aggregate Revolving
Credit Commitment in whole, or in part ratably among the Lenders
in integral multiples of $10,000,000, upon at least three
Business Days' written notice to the Agent, which notice shall
specify the amount of any such reduction, PROVIDED, HOWEVER,
that the amount of the Aggregate Revolving Credit Commitment may
not be reduced below the Aggregate Outstanding Revolving Credit
Exposure. The Aggregate Revolving Credit Commitment shall
automatically terminate at the close of business on the Business
Day next following the date of the Initial Credit Extension
unless prior to that time the conditions set forth in Section
4.2(ii) have been satisfied. All accrued commitment fees shall
be payable on the effective date of any termination of the
obligations of the Lenders to make Credit Extensions hereunder.
(iii) The Borrower may, at its option, on up to two occasions, seek
to increase the Aggregate Revolving Credit Commitment by up to
an aggregate amount of $50,000,000 (resulting in a maximum
Aggregate Revolving Credit Commitment of $300,000,000) in a
minimum amount of $10,000,000 and in integral multiples of
$5,000,000 in excess thereof, upon at least three (3) Business
Days' prior written notice to the Agent, which notice shall
specify the amount of any such increase and shall be delivered
at a time when no Default or Unmatured Default has occurred and
is continuing. The Borrower may, after giving such notice, offer
the increase (which may be declined by any Lender in its sole
discretion) in the Aggregate Revolving Credit Commitment on
either a ratable basis to the Lenders or on a non pro-rata basis
to one or more Lenders and/or to other Lenders or
19
entities reasonably acceptable to the Agent. No increase in the
Aggregate Revolving Credit Commitment shall become effective
until the existing or new Lenders extending such incremental
Commitment amount and the Borrower shall have delivered to the
Agent a document in form and substance reasonably satisfactory
to the Agent pursuant to which any such existing Lender states
the amount of its Commitment increase, any such new Lender
states its Commitment amount and agrees to assume and accept the
obligations and rights of a Lender hereunder and the Borrower
accepts such incremental Commitments. The Lenders (new or
existing) shall accept an assignment from the existing Lenders,
and the existing Lenders shall make an assignment to the new or
existing Lender accepting a new or increased Commitment, of an
interest in each then outstanding Revolving Credit Advance,
Facility LC and Reimbursement Obligation such that, after giving
effect thereto, all Revolving Credit Advances, Facility LCs and
Reimbursement Obligations are held ratably by the Lenders in
proportion to their respective Revolving Credit Commitments.
Assignments pursuant to the preceding sentence shall be made in
exchange for the principal amount assigned plus accrued and
unpaid interest and shall not be subject to the assignment fee
set forth in SECTION 12.3.3. The Borrower shall make any
payments under SECTION 3.4 resulting from such assignments. Any
such increase of the Aggregate Revolving Credit Commitment shall
be subject to receipt by the Agent from the Borrower of such
supplemental opinions, resolutions, certificates and other
documents as the Agent may reasonably request.
2.9 MINIMUM AMOUNT OF EACH ADVANCE. Each Eurodollar Advance (other than an
Advance to repay Swing Line Loans) shall be in the minimum amount of $5,000,000
(and in multiples of $1,000,000 if in excess thereof), and each Floating Rate
Advance shall be in the minimum amount of $5,000,000 (and in multiples of
$1,000,000 if in excess thereof), provided, however, that any Floating Rate
Advance may be in the amount of the unused Aggregate Commitment.
2.10 OPTIONAL PRINCIPAL PAYMENTS. The Borrower may from time to time pay,
without penalty or premium, all outstanding Floating Rate Advances (other than
Swing Line Loans), or, in a minimum aggregate amount of $5,000,000 or any
integral multiple of $1,000,000 in excess thereof, any portion of the
outstanding Floating Rate Advances (other than Swing Line Loans) upon one
Business Days' prior notice to the Agent. The Borrower may at any time pay,
without penalty or premium, all outstanding Swing Line Loans, or, in a minimum
amount of $1,000,000 and increments of $500,000 in excess thereof, any portion
of the outstanding Swing Line Loans, with notice to the Agent and the Swing Line
Lenders by 11:00 a.m. (Chicago time) on the date of repayment. The Borrower may
from time to time pay, subject to the payment of any funding indemnification
amounts required by Section 3.4 but without penalty or premium, all outstanding
Eurodollar Advances, or, in a minimum aggregate amount of $5,000,000 or any
integral multiple of $1,000,000 in excess thereof, any portion of the
outstanding Eurodollar Advances upon three Business Days' prior notice to the
Agent. Optional principal payments in respect of the Term Loan shall be applied
to the principal installments under Section 2.2 in the inverse order of
maturity.
2.11 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW ADVANCES. The
Borrower shall select the Type of Advance and, in the case of each Eurodollar
Advance, the
20
Interest Period applicable thereto from time to time. The Borrower shall give
the Agent irrevocable notice (a "Borrowing Notice") not later than 1:00 p.m.
(Chicago time) at least one Business Day before the Borrowing Date of each
Floating Rate Advance (other than a Swing Line Loan) and three Business Days
before the Borrowing Date for each Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest Period
applicable thereto.
Not later than noon (Chicago time) on each Borrowing Date, each Lender shall
make available its Revolving Loan or Revolving Loans in funds immediately
available in Chicago to the Agent at its address specified pursuant to Article
XIII. The Agent will make the funds so received from the Lenders available to
the Borrower in an account designated in writing by the Borrower.
2.12 CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES. Floating Rate
Advances (other than Swing Line Loans) shall continue as Floating Rate Advances
unless and until such Floating Rate Advances are converted into Eurodollar
Advances pursuant to this Section 2.12 or are repaid in accordance with Section
2.10. Each Eurodollar Advance shall continue as a Eurodollar Advance until the
end of the then applicable Interest Period therefor, at which time such
Eurodollar Advance shall be automatically converted into a Floating Rate Advance
unless (x) such Eurodollar Advance is or was repaid in accordance with Section
2.10 or (y) the Borrower shall have given the Agent a Conversion/Continuation
Notice (as defined below) requesting that, at the end of such Interest Period,
such Eurodollar Advance continue as a Eurodollar Advance for the same or another
Interest Period. Subject to the terms of Section 2.9, the Borrower may elect
from time to time to convert all or any part of a Floating Rate Advance (other
than Swing Line Loans) into a Eurodollar Advance. The Borrower shall give the
Agent irrevocable notice (a "Conversion/Continuation Notice") of each conversion
of a Floating Rate Advance into a Eurodollar Advance or continuation of a
Eurodollar Advance not later than 1:00 p.m. (Chicago time) at least three
Business Days prior to the date of the requested conversion or continuation,
specifying:
(i) the requested date, which shall be a Business Day, of such conversion
or continuation,
(ii) the aggregate amount and Type of the Advance which is to be converted
or continued, and
(iii) the amount of such Advance which is to be converted into or continued
as a Eurodollar Advance and the duration of the Interest Period
applicable thereto.
2.13 CHANGES IN INTEREST RATE, ETC. Each Floating Rate Advance (other than
Swing Line Loans) shall bear interest on the outstanding principal amount
thereof, for each day from and including the date such Advance is made or is
automatically converted from a Eurodollar Advance into a Floating Rate Advance
pursuant to Section 2.12, to but excluding the date it is
21
paid or is converted into a Eurodollar Advance pursuant to Section 2.12 hereof,
at a rate per annum equal to the Floating Rate for such day. Each Swing Line
Loan shall bear interest on the outstanding principal amount thereof, for each
day from and including the day such Swing Line Loan is made to but excluding the
date it is paid hereof, at a rate per annum equal to the Floating Rate for such
day. Changes in the rate of interest on that portion of any Advance maintained
as a Floating Rate Advance will take effect simultaneously with each change in
the Alternate Base Rate. Each Eurodollar Advance shall bear interest on the
outstanding principal amount thereof from and including the first day of the
Interest Period applicable thereto to (but not including) the last day of such
Interest Period at the interest rate determined by the Agent as applicable to
such Eurodollar Advance based upon the Borrower's selections under Sections 2.11
and 2.12 and otherwise in accordance with the terms hereof. No Interest Period
may end after the Facility Termination Date.
2.14 RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to the
contrary contained in Section 2.11, 2.12 or 2.13, during the continuance of a
Default or Unmatured Default the Required Lenders may, at their option, by
notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that no
Advance may be made as, converted into or continued as a Eurodollar Advance.
During the continuance of a Default, unless waived by the Required Lenders, (i)
each Eurodollar Advance shall bear interest for the remainder of the applicable
Interest Period at the rate otherwise applicable to such Interest Period plus 2%
per annum, (ii) each Floating Rate Advance shall bear interest at a rate per
annum equal to the Floating Rate in effect from time to time plus 2% per annum
and (iii) the LC Fee shall be increased by 2% per annum, without any election or
action on the part of the Agent or any Lender.
2.15 METHOD OF PAYMENT. All payments of the Obligations hereunder shall be
made, without setoff, deduction, or counterclaim, in immediately available funds
to the Agent at the Agent's address specified pursuant to Article XIII, or at
any other Lending Installation of the Agent specified in writing by the Agent to
the Borrower, by noon (local time) on the date when due and shall (except with
respect to repayments of Swing Line Loans and except in the case of
Reimbursement Obligations for which the LC Issuer has not been fully indemnified
by the Lenders, or as otherwise specifically required hereunder) be applied
ratably by the Agent among the Lenders. Each payment delivered to the Agent for
the account of any Lender shall be delivered promptly by the Agent to such
Lender in the same type of funds that the Agent received at its address
specified pursuant to Article XIII or at any Lending Installation specified in a
notice received by the Agent from such Lender. Each reference to the Agent in
this Section 2.15 shall also be deemed to refer, and shall apply equally, to the
LC Issuer, in the case of payments required to be made by the Borrower to the LC
Issuer pursuant to Section 2.22.6.
2.16 NOTELESS AGREEMENT; EVIDENCE OF INDEBTEDNESS. (i) Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder.
(ii) The Agent shall also maintain accounts in which it will record (a)
the amount of each Loan made hereunder, the Type thereof and the Interest Period
with respect thereto, (b) the
22
amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (c) the amount of any sum
received by the Agent hereunder from the Borrower and each Lender's share
thereof.
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be PRIMA FACIE evidence of the existence and
amounts of the Obligations therein recorded absent manifest error; PROVIDED,
HOWEVER, that the failure of the Agent or any Lender to maintain such accounts
or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Obligations in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by a promissory
note in substantially the form of a Revolving Credit Note, a Term Note or a
Swing Line Note, in each case as applicable. In such event, the Borrower shall
prepare, execute and deliver to such Lender such Note payable to the order of
such Lender. Thereafter, the Loans evidenced by such Note and interest thereon
shall at all times (prior to any assignment pursuant to Section 12.3) be
represented by one or more Notes payable to the order of the payee named
therein, except to the extent that any such Lender subsequently returns any such
Note for cancellation and requests that such Loans once again be evidenced as
described in paragraphs (i) and (ii) above.
2.17 TELEPHONIC NOTICES. The Borrower hereby authorizes the Lenders and
the Agent to extend, convert or continue Advances, effect selections of Types of
Advances and to transfer funds based on telephonic notices made by any person or
persons the Agent or any Lender in good faith believes to be acting on behalf of
the Borrower, it being understood that the foregoing authorization is
specifically intended to allow Borrowing Notices and Conversion/Continuation
Notices to be given telephonically. The Borrower agrees to deliver promptly to
the Agent a written confirmation, if such confirmation is requested by the Agent
or any Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Agent and the Lenders, the records of the Agent and the Lenders shall govern
absent manifest error.
2.18 INTEREST PAYMENT DATES; INTEREST AND FEE BASIS. Interest accrued on
each Floating Rate Advance shall be payable on each Payment Date, commencing
with the first such date to occur after the date hereof, on any date on which
the Floating Rate Advance is prepaid, whether due to acceleration or otherwise,
and at maturity. Interest accrued on that portion of the outstanding principal
amount of any Floating Rate Advance converted into a Eurodollar Advance on a day
other than a Payment Date shall be payable on the date of conversion. Interest
accrued on each Eurodollar Advance shall be payable on the last day of its
applicable Interest Period, on any date on which the Eurodollar Advance is
prepaid, whether by acceleration or otherwise, and at maturity. Interest accrued
on each Eurodollar Advance having an Interest Period longer than three months
shall also be payable on the last day of each three-month interval during such
Interest Period. Interest on Eurodollar Advances, facility fees and LC Fees
shall be calculated for actual days elapsed on the basis of a 360-day year.
Interest on Floating Rate Advances shall be calculated for actual days elapsed
on the basis of a 365-day year. Interest shall be payable for the day an Advance
is made but not for the day of any payment on the amount paid if payment is
received prior to noon (local time) at the place of payment. If any payment of
principal of or interest on an Advance shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
23
2.19 NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND REVOLVING
CREDIT COMMITMENT REDUCTIONS. Promptly after receipt thereof, the Agent will
notify each Lender of the contents of each Aggregate Revolving Credit Commitment
reduction notice, Borrowing Notice, Swing Line Borrowing Notice,
Conversion/Continuation Notice, and repayment notice received by it hereunder.
Promptly after notice from the LC Issuer, the Agent will notify each Lender of
the contents of each request for issuance of a Facility LC hereunder. The Agent
will notify each Lender of the interest rate applicable to each Eurodollar
Advance promptly upon determination of such interest rate and will give each
Lender prompt notice of each change in the Alternate Base Rate.
2.20 LENDING INSTALLATIONS. Each Lender may book its Loans and its
participation in any LC Obligations and the LC Issuer may book the Facility LCs
at any Lending Installation selected by such Lender or the LC Issuer, as the
case may be, and may change its Lending Installation from time to time. All
terms of this Agreement shall apply to any such Lending Installation and the
Loans, LCs, participations in LC Obligations and any Notes issued hereunder
shall be deemed held by each Lender or the LC Issuer, as the case may be, for
the benefit of any such Lending Installation. Each Lender and the LC Issuer may,
by written notice to the Agent and the Borrower in accordance with Article XIII,
designate replacement or additional Lending Installations through which Loans
will be made by it or Facility LCs will be issued by it and for whose account
Loan payments or payments with respect to Facility LCs are to be made.
2.21 NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Borrower or a Lender,
as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three days and,
thereafter, the interest rate applicable to the relevant Loan or (y) in the case
of payment by the Borrower, the interest rate applicable to the relevant Loan.
2.22 FACILITY LCS.
2.22.1 ISSUANCE. The LC Issuer hereby agrees, on the terms and
conditions set forth in this Agreement, to issue standby letters of
credit denominated in Dollars (each, a "Facility LC") and, upon the
Borrower's request, to renew, extend, increase, decrease or otherwise
modify each Facility LC ("Modify," and each such action a
"Modification"), from time to time from and including the Effective
Date and prior to the Facility Termination Date upon the request of
and for the account of the Borrower; PROVIDED that immediately after
each such Facility LC is issued or Modified, (i) the aggregate amount
of the outstanding LC Obligations shall not exceed $100,000,000 and
(ii) the Aggregate Outstanding Revolving Credit
24
Exposure shall not exceed the Aggregate Revolving Credit Commitment.
No Facility LC shall have an expiry date later than the earlier of (x)
the fifth Business Day prior to the Facility Termination Date and (y)
one year after its issuance provided that any Facility LC with a
one-year period may provide for the renewal thereof for additional
one-year periods but in no event shall the expiring date of such
Facility LCs extend beyond the period in clause (x) hereof.
Notwithstanding the foregoing, on the initial Borrowing Date the
Existing LC shall be deemed to be a Facility LC for all purposes of
this Agreement.
2.22.2 PARTICIPATIONS. Upon the issuance, deemed issuance or
Modification by the LC Issuer of a Facility LC in accordance with this
Section 2.22, the LC Issuer shall be deemed, without further action by
any party hereto, to have unconditionally and irrevocably sold to each
Lender, and each Lender shall be deemed, without further action by any
party hereto, to have unconditionally and irrevocably purchased from
the LC Issuer, a participation in such Facility LC (and each
Modification thereof) and the related LC Obligations in proportion to
its Pro Rata Share.
2.22.3 NOTICE. Subject to Section 2.22.1, the Borrower shall give the
LC Issuer notice prior to 10:00 a.m. (Chicago time) at least three
Business Days prior to the proposed date of issuance or Modification
of each Facility LC, specifying the beneficiary, the proposed date of
issuance (or Modification) and the expiry date of such Facility LC,
and describing the proposed terms of such Facility LC and the nature
of the transactions proposed to be supported thereby. Upon receipt of
such notice, the LC Issuer shall promptly notify the Agent, and the
Agent shall promptly notify each Lender, of the contents thereof and
of the amount of such Lender's participation in such proposed Facility
LC. The issuance or Modification by the LC Issuer of any Facility LC
shall, in addition to the conditions precedent set forth in Article IV
(the satisfaction of which the LC Issuer shall have no duty to
ascertain), be subject to the conditions precedent that such Facility
LC shall be satisfactory to the LC Issuer and that the Borrower shall
have executed and delivered such application agreement and/or such
other instruments and agreements relating to such Facility LC as the
LC Issuer shall have reasonably requested (each, a "Facility LC
Application"). In the event of any conflict between the terms of this
Agreement and the terms of any Facility LC Application, the terms of
this Agreement shall control.
2.22.4 FEES. The Borrower shall pay to the Agent, for the account of
the Lenders ratably in accordance with their respective Pro Rata
Shares, with respect to each Facility LC, a letter of credit fee (the
"LC Fee") at a per annum rate equal to the Applicable Fee Rate on the
stated amount under such standby Facility LC, such fee to be payable
in arrears on each Payment Date. The Borrower shall also pay to the LC
Issuer for its own account (x) at the time of issuance of each
Facility LC, a fronting fee in an amount to be agreed upon between the
LC Issuer and the Borrower, and (y) documentary and processing charges
in connection with the issuance or Modification of and draws under
Facility LCs in accordance with the LC Issuer's standard schedule for
such charges as in effect from time to time.
25
2.22.5 ADMINISTRATION; REIMBURSEMENT BY LENDERS. Upon receipt from the
beneficiary of any Facility LC of any demand for payment under such
Facility LC, the LC Issuer shall notify the Agent and the Agent shall
promptly notify the Borrower and each other Lender as to the amount to
be paid by the LC Issuer as a result of such demand and the proposed
payment date (the "LC Payment Date"). The responsibility of the LC
Issuer to the Borrower and each Lender shall be only to determine that
the documents (including each demand for payment) delivered under each
Facility LC in connection with such presentment shall be in conformity
in all material respects with such Facility LC. The LC Issuer shall
endeavor to exercise the same care in the issuance and administration
of the Facility LCs as it does with respect to letters of credit in
which no participations are granted, it being understood that in the
absence of any gross negligence or willful misconduct by the LC
Issuer, each Lender shall be unconditionally and irrevocably liable
without regard to the occurrence of any Default or any condition
precedent whatsoever, to reimburse the LC Issuer on demand for (i)
such Lender's Pro Rata Share of the amount of each payment made by the
LC Issuer under each Facility LC to the extent such amount is not
reimbursed by the Borrower pursuant to Section 2.22.6 below, plus (ii)
interest on the foregoing amount to be reimbursed by such Lender, for
each day from the date of the LC Issuer's demand for such
reimbursement (or, if such demand is made after 11:00 a.m. (Chicago
time) on such date, from the next succeeding Business Day) to the date
on which such Lender pays the amount to be reimbursed by it, at a rate
of interest per annum equal to the Federal Funds Effective Rate for
the first three days and, thereafter, at a rate of interest equal to
the rate applicable to Floating Rate Advances.
2.22.6 REIMBURSEMENT BY BORROWER. The Borrower shall be irrevocably
and unconditionally obligated to reimburse the LC Issuer on or before
the applicable LC Payment Date for any amounts to be paid by the LC
Issuer upon any drawing under any Facility LC, without presentment,
demand, protest or other formalities of any kind; provided that
neither the Borrower nor any Lender shall hereby be precluded from
asserting any claim for direct (but not consequential) damages
suffered by the Borrower or such Lender to the extent, but only to the
extent, caused by (i) the willful misconduct or gross negligence of
the LC Issuer in determining whether a request presented under any
Facility LC issued by it complied with the terms of such Facility LC
or (ii) the LC Issuer's failure to pay under any Facility LC issued by
it after the presentation to it of a request strictly complying with
the terms and conditions of such Facility LC. All such amounts paid by
the LC Issuer and remaining unpaid by the Borrower shall bear
interest, payable on demand, for each day until paid at a rate per
annum equal to (x) the rate applicable to Floating Rate Advances for
such day if such day falls on or before the applicable LC Payment Date
and (y) the sum of 2% plus the rate applicable to Floating Rate
Advances for such day if such day falls after such LC Payment Date.
The LC Issuer will pay to each Lender ratably in accordance with its
Pro Rata Share all amounts received by it from the Borrower for
application in payment, in whole or in part, of the Reimbursement
Obligation in respect of any Facility LC issued by the LC Issuer, but
only to the extent such Lender has made payment to the LC Issuer in
respect of such Facility LC pursuant to Section
26
2.22.5. Subject to the terms and conditions of this Agreement
(including without limitation the submission of a Borrowing Notice in
compliance with Section 2.10 and the satisfaction of the applicable
conditions precedent set forth in Article IV), the Borrower may
request a Revolving Credit Advance hereunder for the purpose of
satisfying any Reimbursement Obligation.
2.22.7 OBLIGATIONS ABSOLUTE. The Borrower's obligations under this
Section 2.22 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense
to payment which the Borrower may have or have had against the LC
Issuer, any Lender or any beneficiary of a Facility LC. The Borrower
further agrees with the LC Issuer and the Lenders that the LC Issuer
and the Lenders shall not be responsible for, and the Borrower's
Reimbursement Obligation in respect of any Facility LC shall not be
affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even if such documents
should in fact prove to be in any or all respects invalid, fraudulent
or forged, or any dispute between or among the Borrower, any of its
Affiliates, the beneficiary of any Facility LC or any financing
institution or other party to whom any Facility LC may be transferred
or any claims or defenses whatsoever of the Borrower or of any of its
Affiliates against the beneficiary of any Facility LC or any such
transferee. The LC Issuer shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any
Facility LC. The Borrower agrees that any action taken or omitted by
the LC Issuer or any Lender under or in connection with each Facility
LC and the related drafts and documents, if done without gross
negligence or willful misconduct, shall be binding upon the Borrower
and shall not put the LC Issuer or any Lender under any liability to
the Borrower. Nothing in this Section 2.22.7 is intended to limit the
right of the Borrower to make a claim against the LC Issuer for
damages as contemplated by the proviso to the first sentence of
Section 2.22.6.
2.22.8 ACTIONS OF LC ISSUER. The LC Issuer shall be entitled to rely,
and shall be fully protected in relying, upon any Facility LC, draft,
writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement,
order or other document believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons, and
upon advice and statements of legal counsel, independent accountants
and other experts selected by the LC Issuer. The LC Issuer shall be
fully justified in failing or refusing to take any action under this
Agreement unless it shall first have received such advice or
concurrence of the Required Lenders as it reasonably deems appropriate
or it shall first be indemnified to its reasonable satisfaction by the
Lenders against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such
action. Notwithstanding any other provision of this Section 2.22, the
LC Issuer shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement in accordance with a
request of the Required Revolving Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon
the Lenders and any future holders of a participation in any Facility
LC.
27
2.22.9 INDEMNIFICATION. The Borrower hereby agrees to indemnify and
hold harmless each Lender, the LC Issuer and the Agent, and their
respective directors, officers, agents and employees from and against
any and all claims and damages, losses, liabilities, costs or expenses
which such Lender, the LC Issuer or the Agent may incur (or which may
be claimed against such Lender, the LC Issuer or the Agent by any
Person whatsoever) by reason of or in connection with the issuance,
execution and delivery or transfer of or payment or failure to pay
under any Facility LC or any actual or proposed use of any Facility
LC, including, without limitation, any claims, damages, losses,
liabilities, costs or expenses which the LC Issuer may incur by reason
of or in connection with (i) the failure of any other Lender to
fulfill or comply with its obligations to the LC Issuer hereunder (but
nothing herein contained shall affect any rights the Borrower may have
against any defaulting Lender) or (ii) by reason of or on account of
the LC Issuer issuing any Facility LC which specifies that the term
"Beneficiary" included therein includes any successor by operation of
law of the named Beneficiary, but which Facility LC does not require
that any drawing by any such successor Beneficiary be accompanied by a
copy of a legal document, satisfactory to the LC Issuer, evidencing
the appointment of such successor Beneficiary; PROVIDED that the
Borrower shall not be required to indemnify any Lender, the LC Issuer
or the Agent for any claims, damages, losses, liabilities, costs or
expenses to the extent, but only to the extent, caused by (x) the
willful misconduct or gross negligence of the LC Issuer in determining
whether a request presented under any Facility LC complied with the
terms of such Facility LC or (y) the LC Issuer's failure to pay under
any Facility LC after the presentation to it of a request strictly
complying with the terms and conditions of such Facility LC. Nothing
in this Section 2.22.9 is intended to limit the obligations of the
Borrower under any other provision of this Agreement.
2.22.10 LENDERS' INDEMNIFICATION. Each Lender shall, ratably in
accordance with its Pro Rata Share, indemnify the LC Issuer, its
affiliates and their respective directors, officers, agents and
employees (to the extent not reimbursed by the Borrower) against any
cost, expense (including reasonable counsel fees and disbursements),
claim, demand, action, loss or liability (except such as result from
such indemnitees' gross negligence or willful misconduct or the LC
Issuer's failure to pay under any Facility LC after the presentation
to it of a request strictly complying with the terms and conditions of
the Facility LC) that such indemnitees may suffer or incur in
connection with this Section 2.22 or any action taken or omitted by
such indemnitees hereunder.
2.22.11 FACILITY LC COLLATERAL ACCOUNT. The Borrower agrees that it
will, upon the request of the LC Issuer or the Required Revolving
Lenders and until the final expiration date of any Facility LC and
thereafter as long as any amount is payable to the LC Issuer or the
Lenders in respect of any Facility LC, maintain a special collateral
account pursuant to arrangements satisfactory to the Agent (the
"Facility LC Collateral Account") at the Agent's office at the address
specified pursuant to Article XIII, in the name of such Borrower but
under the sole dominion and control of the Agent, for the benefit of
the Lenders and in which such Borrower shall have no interest other
than as set forth in Section 8.1. The
28
Borrower hereby pledges, assigns and grants to the Agent, on behalf of
and for the ratable benefit of the Lenders and the LC Issuer, a
security interest in all of the Borrower's right, title and interest
in and to all funds which may from time to time be on deposit in the
Facility LC Collateral Account to secure the prompt and complete
payment and performance of the Obligations. The Agent will invest any
funds on deposit from time to time in the Facility LC Collateral
Account in certificates of deposit of Bank One having a maturity not
exceeding 30 days. Nothing in this Section 2.22.11 shall either
obligate the Agent to require the Borrower to deposit any funds in the
Facility LC Collateral Account or limit the right of the Agent to
release any funds held in the Facility LC Collateral Account in each
case other than as required by Section 8.1.
2.22.12 RIGHTS AS A LENDER. In its capacity as a Lender, the LC Issuer
shall have the same rights and obligations as any other Lender.
2.23 REPLACEMENT OF LENDER. If the Borrower is required pursuant to
Section 3.1, 3.2 or 3.5 to make any additional payment to any Lender or if any
Lender's obligation to make or continue, or to convert Floating Rate Advances
into, Eurodollar Advances shall be suspended pursuant to Section 3.3 (any Lender
so affected an "Affected Lender"), the Borrower may elect, if such amounts
continue to be charged or such suspension is still effective, to replace such
Affected Lender as a Lender party to this Agreement, provided that no Default or
Unmatured Default shall have occurred and be continuing at the time of such
replacement, and provided further that, concurrently with such replacement, (i)
another bank or other entity which is reasonably satisfactory to the Borrower
and the Agent shall agree, as of such date, to purchase for cash the Advances
and other Obligations due to the Affected Lender pursuant to an assignment
substantially in the form of EXHIBIT D and to become a Lender for all purposes
under this Agreement and to assume all obligations of the Affected Lender to be
terminated as of such date and to comply with the requirements of Section 12.3
applicable to assignments, and (ii) the Borrower shall pay to such Affected
Lender in same day funds on the day of such replacement (A) all interest, fees
and other amounts then accrued but unpaid to such Affected Lender by the
Borrower hereunder to and including the date of termination, including without
limitation payments due to such Affected Lender under Sections 3.1, 3.2 and 3.5,
and (B) an amount, if any, equal to the payment which would have been due to
such Lender on the day of such replacement under Section 3.4 had the Loans of
such Affected Lender been prepaid on such date rather than sold to the
replacement Lender.
ARTICLE III
YIELD PROTECTION; TAXES
3.1 YIELD PROTECTION. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or the LC Issuer with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
29
(i) subjects any Lender or any applicable Lending Installation or the LC
Issuer to any Taxes, or changes the basis of taxation of payments
(other than with respect to Excluded Taxes) to any Lender or the LC
Issuer in respect of its Eurodollar Loans, Facility LCs or
participations therein, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by,
any Lender or any applicable Lending Installation (other than reserves
and assessments taken into account in determining the interest rate
applicable to Eurodollar Advances), or
(iii)imposes any other condition the result of which is to increase the
cost to any Lender or any applicable Lending Installation or the LC
Issuer of making, funding or maintaining its Eurodollar Loans, or of
issuing or participating in Facility LCs, or reduces any amount
receivable by any Lender or any applicable Lending Installation Issuer
in connection with its Eurodollar Loans, Facility LCs or
participations therein, or requires any Lender or any applicable
Lending Installation or the LC Issuer to make any payment calculated
by reference to the amount of Eurodollar Loans, Facility LCs or
participations therein held or interest or LC Fees received by it, by
an amount deemed material by such Lender or the LC Issuer as the case
may be,
and the result of any of the foregoing is to increase the cost to such
Lender or applicable Lending Installation or the LC Issuer, as the
case may be, of making or maintaining its Eurodollar Loans or
Commitment or of issuing or participating in Facility LCs or to reduce
the return received by such Lender or applicable Lending Installation
or the LC Issuer, as the case may be, in connection with such
Eurodollar Loans, Commitment, Facility LCs or participations therein,
then, within 15 days of demand by such Lender or the LC Issuer, as the
case may be, the Borrower shall pay such Lender or the LC Issuer, as
the case may be, such additional amount or amounts as will compensate
such Lender or the LC Issuer, as the case may be, for such increased
cost or reduction in amount received.
3.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender or the LC Issuer
determines the amount of capital required or expected to be maintained by such
Lender or the LC Issuer, any Lending Installation of such Lender or the LC
Issuer, or any corporation controlling such Lender or the LC Issuer is increased
as a result of a Change, then, within 15 days of demand by such Lender or the LC
Issuer, the Borrower shall pay such Lender or the LC Issuer the amount necessary
to compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender or the LC Issuer determines is attributable
to this Agreement, its Outstanding Credit Exposure or its Commitment to make
Loans and issue or participate in Facility LCs, as the case may be, hereunder
(after taking into account such Lender's or the LC Issuer's policies as to
capital adequacy). "Change" means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines, or (ii) any adoption of or
change in any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not having the force
of law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or the LC Issuer or any
Lending Installation or any corporation controlling any Lender or the LC Issuer.
"Risk-Based Capital Guidelines" means (i) the risk-based capital guidelines in
effect in the
30
United States on the date of this Agreement, including transition rules, and
(ii) the corresponding capital regulations promulgated by regulatory authorities
outside the United States implementing the July 1988 report of the Basle
Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
3.3 AVAILABILITY OF TYPES OF ADVANCES. If any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that (i) deposits
of a type and maturity appropriate to match fund Eurodollar Advances are not
available or (ii) the interest rate applicable to Eurodollar Advances does not
accurately reflect the cost of making or maintaining Eurodollar Advances, then
the Agent shall suspend the availability of Eurodollar Advances and require any
affected Eurodollar Advances to be repaid or converted to Floating Rate
Advances, subject to the payment of any funding indemnification amounts required
by Section 3.4.
3.4 FUNDING INDEMNIFICATION. If any payment of a Eurodollar Advance occurs
on a date which is not the last day of the applicable Interest Period, whether
because of acceleration, prepayment or otherwise, or a Eurodollar Advance is not
made on the date specified by the Borrower for any reason other than default by
the Lenders, the Borrower will indemnify each Lender for any loss or cost
incurred by it resulting therefrom, including, without limitation, any loss or
cost in liquidating or employing deposits acquired to fund or maintain such
Eurodollar Advance.
3.5 TAXES. (i) All payments by the Borrower to or for the account of any
Lender, the LC Issuer or the Agent hereunder or under any Note or Facility LC
Application shall be made free and clear of and without deduction for any and
all Taxes. If the Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder to any Lender, the LC Issuer or the
Agent, (a) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 3.5) such Lender, the LC Issuer or the Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (b) the Borrower shall make such deductions, (c) the
Borrower shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (d) the Borrower shall furnish to the Agent
the original copy of a receipt evidencing payment thereof within 30 days after
such payment is made.
(ii) In addition, the Borrower hereby agrees to pay any present or future
stamp or documentary taxes and any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under any Loan
Document or from the execution or delivery of, or otherwise with respect to,
this Agreement or any Loan Document ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Agent, the LC Issuer and
each Lender for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed on amounts payable under this
Section 3.5) paid by the Agent, the LC Issuer or such Lender as a result of its
Commitment, any Loans made by it hereunder, or otherwise in connection with its
participation in this Agreement and any liability (including
31
penalties, interest and expenses) arising therefrom or with respect thereto.
Payments due under this indemnification shall be made within 30 days of the date
the Agent, the LC Issuer or such Lender makes demand therefor pursuant to
Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "Non-U.S. Lender") agrees that it
will, not more than ten Business Days after the date of this Agreement, (i)
deliver to the Agent two duly completed copies of United States Internal Revenue
Service Form W-8BEN or W-8ECI, certifying in either case that such Lender is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, and (ii) deliver to the
Agent a United States Internal Revenue Form W-8 or W-9, as the case may be, and
certify that it is entitled to an exemption from United States backup
withholding tax. Each Non-U.S. Lender further undertakes to deliver to each of
the Borrower and the Agent (x) renewals or additional copies of such form (or
any successor form) on or before the date that such form expires or becomes
obsolete, and (y) after the occurrence of any event requiring a change in the
most recent forms so delivered by it, such additional forms or amendments
thereto as may be reasonably requested by the Borrower or the Agent. All forms
or amendments described in the preceding sentence shall certify that such Lender
is entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, UNLESS an event
(including without limitation any change in treaty, law or regulation) 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
Lender from duly completing and delivering any such form or amendment with
respect to it and such Lender advises the Borrower and the Agent that it is not
capable of receiving payments without any deduction or withholding of United
States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to provide
the Borrower with an appropriate form pursuant to clause (iv), above (unless
such failure is due to a change in treaty, law or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to indemnification under
this Section 3.5 with respect to Taxes imposed by the United States; PROVIDED
that, should a Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its failure
to deliver a form required under clause (iv), above, the Borrower shall take
such steps as such Non-U.S. Lender shall reasonably request to assist such
Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Borrower (with a copy to the Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without withholding or at
a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any political subdivision
thereof asserts a claim that the Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the appropriate form
was not delivered or properly completed, because such Lender failed to notify
the Agent of a change in circumstances which rendered its exemption from
32
withholding ineffective, or for any other reason), such Lender shall indemnify
the Agent fully for all amounts paid, directly or indirectly, by the Agent as
tax, withholding therefor, or otherwise, including penalties and interest, and
including taxes imposed by any jurisdiction on amounts payable to the Agent
under this subsection, together with all costs and expenses related thereto
(including attorneys fees and time charges of attorneys for the Agent, which
attorneys may be employees of the Agent). The obligations of the Lenders under
this Section 3.5(vii) shall survive the payment of the Obligations and
termination of this Agreement.
3.6 LENDER STATEMENTS; SURVIVAL OF INDEMNITY. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation to
reduce any liability of the Borrower to such Lender under Sections 3.1, 3.2 and
3.5 or to avoid the unavailability of Eurodollar Advances under Section 3.3, so
long as such designation is not, in the commercially reasonable judgment of such
Lender, disadvantageous to such Lender. Each Lender shall deliver a written
statement of such Lender to the Borrower (with a copy to the Agent) as to the
amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5. Such written statement
shall set forth in reasonable detail the calculations upon which such Lender
determined such amount and shall be final, conclusive and binding on the
Borrower in the absence of manifest error. Determination of amounts payable
under such Sections in connection with a Eurodollar Loan shall be calculated as
though each Lender funded its Eurodollar Loan through the purchase of a deposit
of the type and maturity corresponding to the deposit used as a reference in
determining the Eurodollar Rate applicable to such Loan, whether in fact that is
the case or not. Unless otherwise provided herein, the amount specified in the
written statement of any Lender shall be payable on demand after receipt by the
Borrower of such written statement. The Borrower shall not be required to
indemnify any Lender pursuant to Section 3.1, 3.2, 3.4 or 3.5 for any amounts
paid or losses incurred by such Lender as to which such Lender has not made
demand hereunder within 120 days after the date such Lender has actual knowledge
of such amounts or losses and their applicability to the lending transactions
contemplated hereby. The obligations of the Borrower under Sections 3.1, 3.2,
3.4 and 3.5 shall survive payment of the Obligations and termination of this
Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 INITIAL CREDIT EXTENSION. The Lenders shall not be required to make
the initial Credit Extension hereunder unless (a) the Borrower has furnished to
the Agent in the number of copies as Agent shall have reasonably requested each
of the following documents and (b) each of the following events shall have
occurred, as applicable:
(i) Copies of the articles or certificate of incorporation of the Borrower
and each Material Domestic Subsidiary, together with all amendments,
and a certificate of good standing, each certified by the appropriate
governmental officer in its jurisdiction of incorporation, as well as
any other information required by Section 326 of the USA PATRIOT ACT
or necessary for the Agent or any Lender to verify the identity of
Borrower as required by Section 326 of the USA PATRIOT Act.
33
(ii) Copies, certified by the Secretary or Assistant Secretary of the
Borrower and each Material Domestic Subsidiary, of its by-laws and of
its Board of Directors' resolutions and of resolutions or actions of
any other body authorizing the execution of the Loan Documents to
which the Borrower and such Material Domestic Subsidiary is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant
Secretary of the Borrower and each Material Domestic Subsidiary, which
shall identify by name and title and bear the signatures of the
Authorized Officers and any other officers of the Borrower and each
Material Domestic Subsidiary authorized to sign the Loan Documents to
which the Borrower and such Material Domestic Subsidiary is a party,
upon which certificate the Agent and the Lenders shall be entitled to
rely until informed of any change in writing by the Borrower.
(iv) A certificate, signed by the Chief Financial Officer or Treasurer of
the Borrower, stating that on the initial Credit Extension Date no
Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of the Borrower's counsel, addressed to the Agent
and the Lenders in form and substance reasonably acceptable to the
Agent.
(vi) Any Notes requested by a Lender pursuant to Section 2.16 payable to
the order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form of
EXHIBIT E, addressed to the Agent and signed by an Authorized Officer,
together with such other related money transfer authorizations as the
Agent may have reasonably requested.
(viii) This Agreement.
(ix) The Guaranty.
(x) A Solvency Certificate with respect to (a) Travelers and its
Subsidiaries and (b) the Borrower and its Subsidiaries in each case
signed by an Authorized Officer of the applicable entity in form and
substance reasonably acceptable to Agent.
(xi) Travelers shall have (a) established a cash collateral account with
the Agent, (b) deposited $150,020,000 in cash collateral into such
account, and (c) executed and delivered to the Agent such
documentation as the Agent shall have reasonably requested to create a
perfected first priority security interest in such cash collateral to
secure the Obligations.
(xii) (a) copies of searches of financing statements filed under the
Uniform Commercial Code with respect to the assets of the Borrower and
its Material Domestic Subsidiaries in such jurisdictions as the Agent
may request; and (b) such duly executed UCC-3 termination statements
and similar documents as the Agent may request.
34
(xiii) The receipt by the Borrower of a letter or a public statement from
at least two of S&P, ▇▇▇▇▇'▇ and Fitch stating that after the Spin-Off
Transaction and subject to the conditions in such letters (which
conditions shall be satisfactory to the Agent), the Borrower's issuer
rating from S&P, ▇▇▇▇▇'▇ and Fitch, respectively, is not less than
BBB-, Baa3 or BBB-, as applicable respectively, and neither S&P's nor
▇▇▇▇▇'▇ issuer ratings of the Borrower shall be less than BBB- or
Baa3, respectively.
(xiv) The initial Credit Extension shall occur on or before July 1, 2004
and shall consist exclusively of a $100,000,000 Term Loan and a
$50,000,000 Revolving Credit Advance.
(xv) Such other documents as any Lender or its counsel may have reasonably
requested.
4.2 SUBSEQUENT CREDIT EXTENSIONS. The Lenders shall not be required to make
any Credit Extension after the initial $150,000,000 Credit Extension referred to
in Section 4.1(xiv) above unless:
(i) Not later than the Business Day next following the initial Borrowing
Date: (a) Travelers shall have merged with a direct Wholly-Owned
Subsidiary of the Borrower and thereby become a direct Wholly-Owned
Subsidiary of the Borrower, (b) the Spin-Off Transaction shall have
been consummated substantially as set forth in the Form 10, including
the Borrower's payment of the Viad Payment, and (c) the Borrower and
Viad shall have entered into Separation Agreements in form and
substance reasonably acceptable to the Agent and Syndication Agent,
copies of which, along with the Spin-Off Documents shall have been
provided to the Agent.
(ii) The Agent shall have received from the Borrower a certificate signed
by its Chief Financial Officer or Treasurer to the effect that the
conditions set forth in Section 4.2(i) have been satisfied.
4.3 EACH CREDIT EXTENSION. The Lenders shall not be required to make any
Credit Extension (except as otherwise set forth in Section 2.7.4 with respect to
Revolving Loans for the purpose of repaying Swing Line Loans) unless on the
applicable Credit Extension Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V are true and
correct as of such Credit Extension Date except to the extent any such
representation or warranty is stated to relate solely to an earlier
date, in which case such representation or warranty shall have been
true and correct on and as of such earlier date.
Each Borrowing Notice, Swing Line Borrowing Notice, or request for
issuance of a Facility LC, as the case may be, with respect to each such Credit
Extension shall constitute a representation and warranty by the Borrower that
the conditions contained in Sections 4.3(i) and (ii) have been satisfied.
35
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that as of the date
hereof with respect to the Sections 5.1 and 5.2, as of the Effective Date and as
of each Credit Extension thereafter that:
5.1 EXISTENCE AND STANDING. Each of the Borrower and its Material Domestic
Subsidiaries is a corporation, partnership, trust or limited liability company
duly and properly incorporated or organized, as the case may be, validly
existing and (to the extent such concept applies to such entity) in good
standing under the laws of its jurisdiction of incorporation or organization and
has all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
5.2 AUTHORIZATION AND VALIDITY. Each of the Borrower and its Material
Domestic Subsidiaries has the power and authority and legal right to execute and
deliver the Loan Documents to which it is a party and to perform its obligations
thereunder. The execution and delivery by each of the Borrower and its Material
Domestic Subsidiaries of the Loan Documents to which it is a party and the
performance of its obligations thereunder have been duly authorized by proper
corporate proceedings, and the Loan Documents to which each of the Borrower and
its Material Domestic Subsidiaries is a party constitute legal, valid and
binding obligations of each of the Borrower and its Material Domestic
Subsidiaries enforceable against each of the Borrower and its Material Domestic
Subsidiaries in accordance with their terms, except as enforceability may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
5.3 NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and delivery by
each of the Borrower and its Material Domestic Subsidiaries of the Loan
Documents to which it is a party, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
(i) any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on the Borrower or any of its Material Domestic Subsidiaries or
(ii) the Borrower's or any Material Domestic Subsidiary's articles or
certificate of incorporation, partnership agreement, certificate of partnership,
articles or certificate of organization, by-laws, or operating or other
management agreement, as the case may be, or (iii) the provisions of any
indenture, instrument or agreement to which the Borrower or any of its Material
Domestic Subsidiaries is a party or is subject, or by which it, or its Property,
is bound, or conflict with or constitute a default thereunder, or result in, or
require, the creation or imposition of any Lien in, of or on the Property of the
Borrower or a Material Domestic Subsidiary pursuant to the terms of any such
indenture, instrument or agreement. No order, consent, adjudication, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, or other action in respect of any governmental or public
body or authority, or any subdivision thereof, which has not been obtained by
the Borrower or any of its Material Domestic Subsidiaries, is required to be
obtained by the Borrower or any of its Material Domestic Subsidiaries in
connection with the execution and delivery of the Loan Documents, the borrowings
under this Agreement, the payment and performance by the Borrower of the
Obligations or the legality, validity, binding effect or enforceability of any
of the Loan Documents.
36
5.4 FINANCIAL STATEMENTS. The December 31, 2003 consolidated financial
statements of Travelers and its Subsidiaries heretofore delivered to the Lenders
were prepared in accordance with generally accepted accounting principles in
effect on the date such statements were prepared and fairly present in all
material respects the consolidated financial condition and operations of the
Travelers and its Subsidiaries at such date and the consolidated results of
their operations for the period then ended.
5.5 MATERIAL ADVERSE CHANGE. Since December 31, 2003 there has been no
change in the business, Property, prospects, condition (financial or otherwise)
or results of operations of the Borrower and its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.
5.6 TAXES. Prior to the Spin-Off Transaction, Travelers and its
Subsidiaries, and after the Spin-Off Transaction, the Borrower and its
Subsidiaries have filed all United States federal tax returns and all other tax
returns which are required to be filed and have paid all material taxes due
pursuant to said returns or pursuant to any assessment received by such Persons,
except such material taxes, if any, as are being contested in good faith and as
to which adequate reserves have been provided in accordance with GAAP and as to
which no Lien exists. As of the Effective Date, no material tax liens have been
filed and no material claims are being asserted with respect to any such taxes.
The charges, accruals and reserves on the books of the Borrower and its
Subsidiaries in respect of any taxes or other governmental charges are adequate.
The United States income tax returns of Travelers and its Subsidiaries have been
audited by the Internal Revenue Service through the fiscal year ended December
31, 1998.
5.7 LITIGATION AND CONTINGENT OBLIGATIONS. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting the
Borrower or any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect or which seeks to prevent, enjoin or delay the making of
any Credit Extensions. Other than any liability incident to any litigation,
arbitration or proceeding which could not reasonably be expected to have a
Material Adverse Effect, neither the Borrower nor any of its Subsidiaries has
any material contingent obligations not provided for or disclosed in the
financial statements referred to in Section 5.4 or on Schedule 6.18.
5.8 SUBSIDIARIES. Schedule 5.8 contains an accurate list, after giving
effect to the Spin-Off Transaction, of all Subsidiaries of the Borrower and
identifies all Material Domestic Subsidiaries of the Borrower all as of the date
of this Agreement, setting forth their respective jurisdictions of organization
and the percentage of their respective Capital Stock or other ownership
interests owned by the Borrower or other Subsidiaries. All of the issued and
outstanding shares of Capital Stock or other ownership interests of such
Subsidiaries have been (to the extent such concepts are relevant with respect to
such ownership interests) duly authorized and issued and are fully paid and
non-assessable.
5.9 ERISA. The Unfunded Liabilities of all Single Employer Plans do not in
the aggregate exceed $125,000,000. Neither the Borrower, any of its
Subsidiaries, nor any other member of the Controlled Group has incurred, or is
reasonably expected to incur, any withdrawal liability to Multiemployer Plans in
excess of $10,000,000 in the aggregate. Each Single Employer Plan complies in
all material respects with all applicable requirements of law and
37
regulations, no Reportable Event has occurred with respect to any Single
Employer Plan, neither the Borrower, any of its Subsidiaries nor any other
member of the Controlled Group has withdrawn from any Multiemployer Plan or
initiated steps to do so, and no steps have been taken to reorganize or
terminate any Single Employer Plan.
5.10 ACCURACY OF INFORMATION. No information, exhibit or report furnished
by the Borrower or any of its Subsidiaries to the Agent or to any Lender in
connection with the negotiation of, or compliance with, the Loan Documents
contained any material misstatement of fact or omitted to state a material fact
or any fact necessary to make the statements contained therein not misleading.
5.11 REGULATION U. Margin stock (as defined in Regulation U) constitutes
less than 25% of the value of those assets of the Borrower and its Subsidiaries
which are subject to any limitation on sale, pledge, or other restriction
hereunder.
5.12 MATERIAL AGREEMENTS. Neither the Borrower nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect or (ii) any
Material Indebtedness Agreement.
5.13 COMPLIANCE WITH LAWS. The Borrower and its Subsidiaries have complied
with all applicable statutes, rules, regulations, orders and restrictions of any
domestic or foreign government or any instrumentality or agency thereof having
jurisdiction over the conduct of their respective businesses or the ownership of
their respective Property except for any failure to comply with any of the
foregoing which could not reasonably be expected to have a Material Adverse
Effect.
5.14 OWNERSHIP OF PROPERTIES. Except as set forth on Schedule 5.14, on the
Effective Date, the Borrower and its Subsidiaries will have good title, free of
all Liens other than those permitted by Section 6.15, to all of the Property and
assets reflected in the Borrower's most recent consolidated financial statements
provided to the Agent as owned by the Borrower and its Subsidiaries.
5.15 PLAN ASSETS; PROHIBITED TRANSACTIONS. Neither the Borrower nor any of
its Subsidiaries is an entity deemed to hold "plan assets" within the meaning of
29 C.F.R. ss. 2510.3-101 of an employee benefit plan (as defined in Section 3(3)
of ERISA) which is subject to Title I of ERISA or any plan (within the meaning
of Section 4975 of the Code), and neither the execution of this Agreement nor
the making of the Loans or Facility LCs hereunder gives rise to a prohibited
transaction within the meaning of Section 406 of ERISA or Section 4975 of the
Code.
5.16 ENVIRONMENTAL MATTERS. In the ordinary course of its business, the
officers of the Borrower and its Subsidiaries consider the effect of
Environmental Laws on the business of the Borrower and its Subsidiaries, in the
course of which they identify and evaluate potential risks and liabilities
accruing to the Borrower due to Environmental Laws. On the basis of this
38
consideration, the Borrower has concluded that Environmental Laws cannot
reasonably be expected to have a Material Adverse Effect. Neither the Borrower
nor any Subsidiary has received any notice to the effect that its operations are
not in material compliance with any of the requirements of applicable
Environmental Laws or are the subject of any federal or state investigation
evaluating whether any remedial action is needed to respond to a release of any
toxic or hazardous waste or substance into the environment, which non-compliance
or remedial action could reasonably be expected to have a Material Adverse
Effect.
5.17 INVESTMENT COMPANY ACT. Neither the Borrower nor any Subsidiary is an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.18 PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.19 INSURANCE. Borrower and its Subsidiaries and their respective
properties are insured with financially sound and reputable insurance companies
in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where Borrower or such Subsidiary operates.
5.20 SOLVENCY. (i) Immediately after the consummation of the Spin-Off
Transaction and the transactions to occur on the date thereof and immediately
following the making of each Credit Extension, if any, made on the date thereof
and after giving effect to the application of the proceeds of such Credit
Extensions, (a) the fair value of the assets of the Borrower and its
Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts
and liabilities, subordinated, contingent or otherwise, of the Borrower and its
Subsidiaries on a consolidated basis; (b) the present fair saleable value of the
Property of the Borrower and its Subsidiaries on a consolidated basis will be
greater than the amount that will be required to pay the probable liability of
the Borrower and its Subsidiaries on a consolidated basis on their debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) the Borrower and its
Subsidiaries on a consolidated basis will be able to pay their debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) the Borrower and its
Subsidiaries on a consolidated basis will not have unreasonably small capital
with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted after the
Effective Date.
(ii) The Borrower does not intend to, or to permit any of its Subsidiaries
to, and does not believe that it or any of its Subsidiaries will, incur debts
beyond its ability to pay such debts as they mature, taking into account the
timing of and amounts of cash to be received by it or any such Subsidiary and
the timing of the amounts of cash to be payable on or in respect of its
Indebtedness or the Indebtedness of any such Subsidiary.
39
ARTICLE VI
COVENANTS
During the term of this Agreement, beginning on the Effective Date (or, in
the case of Section 6.1(viii) and 6.3 only, on the date hereof), unless the
Required Lenders shall otherwise consent in writing:
6.1 FINANCIAL REPORTING. The Borrower will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with generally accepted accounting principles, and furnish to the Lenders:
(i) Within 90 days after the close of each of its fiscal years, an
unqualified (except for qualifications relating to changes in
accounting principles or practices reflecting changes in generally
accepted accounting principles and required or approved by the
Borrower's independent certified public accountants) audit report
certified by independent certified public accountants reasonably
acceptable to the Lenders, prepared in accordance with GAAP on a
consolidated and consolidating (with respect to Material Domestic
Subsidiaries only) basis (consolidating statements need not be
certified by such accountants) for itself and its Material Domestic
Subsidiaries, including balance sheets as of the end of such period,
related profit and loss and reconciliation of surplus statements,
and a statement of cash flows (on a consolidated basis only),
accompanied by any management letter prepared by said accountants.
(ii) Within 45 days after the close of the first three quarterly periods
of each of its fiscal years, for the Borrower and its Material
Domestic Subsidiaries, consolidated and consolidating unaudited
balance sheets as at the close of each such period and consolidated
and consolidating profit and loss and reconciliation of surplus
statements and a statement of cash flows (on a consolidated basis
only) for the period from the beginning of such fiscal year to the
end of such quarter, all certified by its chief financial officer or
its controller.
(iii) Together with the financial statements required under Sections
6.1(i) and (ii), a compliance certificate in substantially the form
of EXHIBIT F signed by its chief financial officer or its controller
showing the calculations necessary to determine compliance with this
Agreement and stating that no Default or Unmatured Default exists,
or if any Default or Unmatured Default exists, stating the nature
and status thereof.
(iv) Within 270 days after the close of each fiscal year, a statement of
the Unfunded Liabilities of each Single Employer Plan, certified as
correct by an actuary enrolled under ERISA.
(v) As soon as possible and in any event within 10 days after the
Borrower knows that any Reportable Event has occurred with respect
to any Single Employer Plan, a statement, signed by the chief
financial officer or controller of the Borrower,
40
describing said Reportable Event and the action which the Borrower
proposes to take with respect thereto.
(vi) As soon as possible and in any event within 10 days after receipt by
the Borrower, a copy of (a) any notice or claim to the effect that
the Borrower or any of its Subsidiaries is or may be liable to any
Person as a result of the release by the Borrower, any of its
Subsidiaries, or any other Person of any toxic or hazardous waste or
substance into the environment, and (b) any notice alleging any
violation of any federal, state or local environmental, health or
safety law or regulation by the Borrower or any of its Subsidiaries,
which, in either case, could reasonably be expected to have a
Material Adverse Effect.
(vii) Promptly upon the filing thereof, electronic notice to the Agent of
the filing of all proxy statements, registration statements and
periodic and current reports on forms 10K, 10Q and 8K which the
Borrower or any of its Subsidiaries files with the Securities and
Exchange Commission.
(viii)Such other information (including non-financial information) as the
Agent or any Lender may from time to time reasonably request.
If any information which is required to be furnished to the Lenders under
this Section 6.1 is required by law or regulation to be filed by the Borrower
with a government body on an earlier date, then the information required
hereunder shall be furnished to the Lenders at such earlier date.
6.2 USE OF PROCEEDS. The Borrower will, and will cause each Subsidiary to,
use the proceeds of the Term Loan and the other Credit Extensions for general
corporate purposes, including commercial paper backup, payment of the Viad
Payment (provided the use of the proceeds with respect to the Viad Payment shall
not exceed $150,000,000) and acquisitions permitted hereunder. The Borrower will
not, nor will it permit any Subsidiary to, use any of the proceeds of the
Advances to purchase or carry any "margin stock" (as defined in Regulation U).
6.3 NOTICE OF DEFAULT. The Borrower will give prompt notice in writing to
the Lenders of the occurrence of any Default or Unmatured Default and of any
other development, financial or otherwise, which could reasonably be expected to
have a Material Adverse Effect.
6.4 CONDUCT OF BUSINESS. The Borrower will, and will cause each Material
Domestic Subsidiary to, carry on and conduct its business in the financial or
payment services industry or the support thereof and do all things necessary to
remain duly incorporated or organized, validly existing and (to the extent such
concept applies to such entity) in good standing as a domestic corporation,
partnership or limited liability company in its jurisdiction of incorporation or
organization, as the case may be, and maintain all requisite authority to
conduct its business in each jurisdiction in which its business is conducted, if
the failure to do so could reasonably be expected to have a Material Adverse
Effect.
6.5 TAXES. The Borrower will, and will cause each Subsidiary to, timely
file complete and correct United States federal and applicable foreign, state
and local tax returns required by law and pay when due all taxes, assessments
and governmental charges and levies upon it or its income, profits or Property,
except those which are being contested in good faith by appropriate
41
proceedings and with respect to which adequate reserves have been set aside in
accordance with GAAP.
6.6 INSURANCE. The Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts and covering such risks as is consistent with
sound business practice, and the Borrower will furnish to any Lender upon
request full information as to the insurance carried.
6.7 COMPLIANCE WITH LAWS. The Borrower will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject including,
without limitation, all Environmental Laws, the noncompliance with which could
reasonably be expected to have a Material Adverse Effect.
6.8 MAINTENANCE OF PROPERTIES. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition, and make all necessary
and proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times.
6.9 INSPECTION. The Borrower will, and will cause each Subsidiary to,
permit the Agent and the Lenders, by their respective representatives and
agents, to inspect any of the Property, books and financial records of the
Borrower and each Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Borrower and each Subsidiary, and to
discuss the affairs, finances and accounts of the Borrower and each Subsidiary
with, and to be advised as to the same by, their respective officers at such
reasonable times and intervals as the Agent or any Lender may designate. The
costs of such inspections shall be for the account of the Borrower, except in
the case of (i) a Lender inspection in the absence of the occurrence and
continuation of a Default, which shall be done at such Lender's expense, or (ii)
any Agent inspections in excess of one inspection during any 12-month period in
the absence of the occurrence and continuation of a Default, each of which shall
be done at Agent's expense.
6.10 DIVIDENDS. The Borrower will not, nor will it permit any Subsidiary
to, declare or pay any Restricted Payments (other than dividends payable in its
own common stock), except that (i) any Subsidiary may declare and pay dividends
or make distributions to the Borrower or to a Wholly-Owned Subsidiary, (ii) so
long as no Default or Unmatured Default shall exist before or after giving
effect to such Restricted Payment or be created as a result thereof, the
Borrower may declare and pay dividends on its Capital Stock or make other
Restricted Payments in an aggregate amount not in excess of (a) in calendar year
2004 after the Spin-Off Transaction, $20,000,000 and (b) in each subsequent
calendar year an amount equal to the sum of (1) 30% of Consolidated Net Income
for the immediately preceding calendar year plus (2) the positive excess, if
any, of the Base Dividend Amount for such immediately preceding calendar year
over the amount of Restricted Payments actually declared or made in such
immediately preceding calendar year pursuant to this Subsection 6.10(ii) after
the Spin-Off Transaction and (iii) to the extent it has not already done so
prior to the Effective Date and so long as no Default or to the knowledge of an
Authorized Officer, no Unmatured Default shall exist before or after giving
effect thereto or be created as a result thereof, the Borrower may make the Viad
Payment and declare and pay a dividend to Viad in an amount equivalent to (x)
the estimated net earnings of Travelers from the beginning of fiscal year 2004
through the effective date of the Spin-Off
42
Transaction, (y) approximately $35,000,000 in alternative minimum tax credits,
and (z) approximately $7,250,000 in deferred compensation obligations.
6.11 INDEBTEDNESS. The Borrower will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(i) The Loans and Indebtedness in respect of Facility LCs.
(ii) Indebtedness existing on the Effective Date and described in
Schedule 6.11.
(iii) Indebtedness owing between and among the Borrower, any Guarantor or
any Special Purpose Subsidiary.
(iv) Other Indebtedness at no time exceeding $50,000,000 in aggregate
outstanding principal amount.
6.12 MERGER. The Borrower will not, nor will it permit any Subsidiary to,
merge or consolidate with or into any other Person, except that a Subsidiary may
merge into the Borrower, with the Borrower as the surviving entity, or a
Wholly-Owned Subsidiary.
6.13 SALE OF ASSETS. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property to any other
Person, except:
(i) Sales of inventory in the ordinary course of business.
(ii) Any transfer of an interest in accounts or notes receivable and
related assets as part of a Receivables Transaction which does not
give rise to Indebtedness.
(iii) Sales of portfolio securities owned by the Borrower and its
Subsidiaries in the ordinary course of business.
(iv) Sales of securities pursuant to Repurchase Agreements.
(v) Sales, transfers or other dispositions of its Property to a Special
Purpose Subsidiary in the ordinary course of business.
(vi) Leases, sales or other dispositions of its Property that, together
with all other Property of the Borrower and its Subsidiaries
previously leased, sold or disposed of (other than pursuant to
Sections 6.13(i)-(v) above) as permitted by this Section during the
twelve-month period ending with the month in which any such lease,
sale or other disposition occurs, do not constitute a Substantial
Portion of the Property of the Borrower and its Subsidiaries.
6.14 INVESTMENTS AND ACQUISITIONS. (a) The Borrower will not, nor will it
permit any Subsidiary to, make any Acquisition of any Person except Acquisitions
after the Effective Date of (or all or substantially all of the assets of)
entities engaged in substantially the same or related lines of business as the
Borrower, so long as (i) the aggregate Non-Equity Consideration for all
Acquisitions in any twelve-month period shall not exceed $100,000,000; (ii) the
aggregate consideration for all Acquisitions over the term of this Agreement
shall not exceed
43
$250,000,000; and (iii) after giving effect to such acquisition, the Borrower
shall be in compliance with its covenants in Section 6.20, and on a pro forma
basis, the Borrower would be in compliance therewith for the previous four
fiscal quarters; (iv) for any Acquisition with aggregate consideration in excess
of $50,000,000, the Borrower shall have delivered to the Administrative Agent a
certificate executed by an Authorized Officer setting forth the calculations
demonstrating such compliance and (v) both before and after giving effect to
such acquisition no Default exists (each such acquired entity, an "Acquired
Company").
(b) At no time will the Borrower permit aggregate Investments in Foreign
Subsidiaries, joint ventures or Domestic Subsidiaries that are not Guarantors
(excluding Special Purpose Subsidiaries and Subsidiaries created in connection
with Receivables Transactions otherwise permitted hereunder) to exceed 10% of
Consolidated Net Worth determined as of the most recent fiscal quarter end for
which financial statements have been delivered pursuant to Section 6.1 or 6.2;
provided that the loan from MoneyGram Payment Systems, Inc. to MoneyGram
International Holdings Limited in the amount of 92,500,000 Euros pursuant to the
Loan Agreement dated January 17, 2003 shall be excluded from the provisions of,
and calculation under, this Section 6.14(b).
6.15 LIENS. The Borrower will not, nor will it permit any Material
Domestic Subsidiary to, create, incur, or suffer to exist any Lien in, of or on
the Property of the Borrower or any of its Material Domestic Subsidiaries,
except:
(i) Liens for taxes, assessments or governmental charges or levies on
its Property if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in
good faith and by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its
books.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary
course of business which secure payment of obligations not more than
60 days past due or which are being contested in good faith by
appropriate proceedings and for which adequate reserves shall have
been set aside on its books.
(iii) Liens arising out of pledges or deposits under worker's compensation
laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation.
(iv) Utility easements, building restrictions and such other encumbrances
or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which
do not in any material way affect the marketability of the same or
interfere with the use thereof in the business of the Borrower or
its Subsidiaries.
(v) Liens in existence on the Effective Date and identified on Schedule
6.15 hereto.
(vi) Liens securing not in excess of $450,000,000 of Receivables
Transaction Attributed Indebtedness.
44
(vii) Liens securing Rate Management Obligations not in excess of
$100,000,000.
(viii)Other Liens securing Indebtedness at no time exceeding $50,000,000
in aggregate outstanding principal amount.
6.16 AFFILIATES. The Borrower will not, and will not permit any Subsidiary
to, enter into any transaction (including, without limitation, the purchase or
sale of any Property or service) with, or make any payment or transfer to, any
Affiliate except in the ordinary course of business and pursuant to the
reasonable requirements of the Borrower's or such Subsidiary's business and upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary
than the Borrower or such Subsidiary would obtain in a comparable arms-length
transaction or (ii) transactions comprising the Spin-Off Transaction.
6.17 AMENDMENTS TO AGREEMENTS. The Borrower will not, and will not permit
any Subsidiary to, amend or terminate the Separation Agreements in any manner
which could reasonably be expected to be materially adverse to the interests of
the Lenders.
6.18 CONTINGENT OBLIGATIONS. The Borrower will not, nor will it permit any
Material Domestic Subsidiary or Foreign Subsidiary to, make or suffer to exist
any Contingent Obligation, except (i) by endorsement of instruments for deposit
or collection in the ordinary course of business, (ii) for the Guaranty and
(iii) as provided in the Separation Agreements, (iv) as set forth on Schedule
6.18.
6.19 INCONSISTENT AGREEMENTS. The Borrower shall not, and shall not permit
any Material Domestic Subsidiary to, enter into any indenture, agreement,
instrument (or amendment thereto) or other arrangement which (i) directly or
indirectly prohibits or restrains, or has the effect of prohibiting or
restraining the incurrence or repayment of the Obligations, the amendment of the
Loan Documents, or the ability of any Material Domestic Subsidiary to pay
dividends or make other distributions on its capital or (ii) contains any
provision which would be violated or breached by the making of Credit Extensions
or by the performance by the Borrower or any Material Domestic Subsidiary of any
of its obligations under any Loan Documents.
6.20 FINANCIAL COVENANTS.
6.20.1. INTEREST COVERAGE RATIO. The Borrower will not permit the
ratio, determined as of the end of each of its fiscal quarters for the
then most-recently ended four fiscal quarters, of (i) Consolidated EBIT to
(ii) Consolidated Interest Expense to be less than 3.5 to 1.0.
6.20.2. LEVERAGE RATIO. The Borrower will not permit the ratio,
determined as of the end of each of its fiscal quarters, of (i)
Consolidated Total Indebtedness to (ii) Consolidated Total Capitalization
to be greater than .5 to 1.0.
6.20.3. CONSOLIDATED TOTAL INDEBTEDNESS TO EBITDA RATIO. The
Borrower will not permit the ratio, determined as of the end of each of
its fiscal quarters for the then most-recently ended four fiscal quarters,
of (i) Consolidated Total Indebtedness to (ii) Consolidated EBITDA to be
greater than 3.0 to 1.0.
45
6.21 SUBSIDIARY GUARANTEES. Within ten Business Days of any Authorized
Officer becoming aware that a Subsidiary has become a Material Domestic
Subsidiary, the Borrower shall cause an Authorized Officer thereof to (i)
execute and deliver to the Agent for the benefit of the Lenders a guaranty of
the Obligations pursuant to a guaranty substantially similar to the Guaranty (or
a joinder agreement under the Guaranty), all pursuant to documentation
(including related certificates, opinions) reasonably acceptable to the Agent.
The Borrower shall promptly notify the Agent at which time any Authorized
Officer becomes aware that a Subsidiary has become a Material Domestic
Subsidiary.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
7.1 REPRESENTATION OR WARRANTY. Any representation or warranty made or
deemed made by or on behalf of the Borrower or any of its Subsidiaries to the
Lenders or the Agent under or in connection with this Agreement, any Credit
Extension, or any certificate or information delivered in connection with this
Agreement or any other Loan Document shall be materially false on the date as of
which made.
7.2 NON-PAYMENT. Nonpayment of principal of any Loan when due, nonpayment
of any Reimbursement Obligation within one Business Day after the same becomes
due and the Borrower has received written notice of such fact, or nonpayment of
interest upon any Loan or of any commitment fee, LC Fee or other obligations
under any of the Loan Documents within five days after the same becomes due.
7.3 SPECIFIC DEFAULTS. The breach by the Borrower of any of the terms or
provisions of Section 6.2, 6.3 or Sections 6.10 through and including 6.21.
7.4 OTHER DEFAULTS. The breach by the Borrower (other than a breach which
constitutes a Default under another Section of this Article VII) of any of the
terms or provisions of this Agreement which is not remedied within thirty days
after written notice from the Agent or any Lender.
7.5 CROSS-DEFAULT. Failure of the Borrower or any of its Subsidiaries to
pay when due any Material Indebtedness; or the default by the Borrower or any of
its Subsidiaries in the performance (beyond the applicable grace period with
respect thereto, if any) of any term, provision or condition contained in any
Material Indebtedness Agreement, or any other event shall occur or condition
exist, the effect of which default, event or condition is to cause, or to permit
the holder(s) of such Material Indebtedness or the lender(s) under any Material
Indebtedness Agreement to cause, such Material Indebtedness to become due prior
to its stated maturity; or any Material Indebtedness of the Borrower or any of
its Subsidiaries shall be declared to be due and payable or required to be
prepaid or repurchased (other than by a regularly scheduled payment) prior to
the stated maturity thereof.
7.6 INSOLVENCY; VOLUNTARY PROCEEDINGS. The Borrower or any of its
Subsidiaries shall (i) have an order for relief entered with respect to it under
the Federal or state bankruptcy laws as now or hereafter in effect, (ii) make an
assignment for the benefit of creditors, (iii) apply for,
46
seek, consent to, or acquiesce in, the appointment of a receiver, custodian,
trustee, examiner, liquidator or similar official for it or any Substantial
Portion of its Property, (iv) institute any proceeding seeking an order for
relief under the Federal or state bankruptcy laws as now or hereafter in effect
or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (v)
take any corporate or partnership action to authorize or effect any of the
foregoing actions set forth in this Section 7.6, (vi) fail to contest in good
faith any appointment or proceeding described in Section 7.7 or (vii) not pay,
or admit in writing its inability to pay, its debts generally as they become
due.
7.7 INVOLUNTARY PROCEEDINGS. Without the application, approval or consent
of the Borrower or any of its Subsidiaries, a receiver, trustee, examiner,
liquidator or similar official shall be appointed for the Borrower or any of its
Subsidiaries or any Substantial Portion of its Property, or a proceeding
described in Section 7.6(iv) shall be instituted against the Borrower or any of
its Subsidiaries and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of 30 consecutive days.
7.8 CONDEMNATION, SEIZURE. Any court, government or governmental agency
shall condemn, seize or otherwise appropriate, or take custody or control of,
all or any portion of the Property of the Borrower and its Subsidiaries which,
when taken together with all other Property of the Borrower and its Subsidiaries
so condemned, seized, appropriated, or taken custody or control of, during the
twelve-month period ending with the month in which any such action occurs,
constitutes a Substantial Portion.
7.9 JUDGMENTS. The Borrower or any of its Subsidiaries shall fail within
30 days to pay, bond or otherwise discharge one or more (i) judgments or orders
for the payment of money in excess of $20,000,000 (or the equivalent thereof in
currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary
judgments or orders which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, which judgment(s), in any such case,
is/are not stayed on appeal or otherwise being appropriately contested in good
faith.
7.10 UNFUNDED LIABILITIES; REPORTABLE EVENT. The Unfunded Liabilities of
all Single Employer Plans shall exceed in the aggregate $125,000,000 or any
Reportable Event shall occur in connection with any Single Employer Plan that
could reasonably be expected to have a Material Adverse Effect.
7.11 CHANGE IN CONTROL. Any Change in Control shall occur after the
Spin-Off Transaction.
7.12 WITHDRAWAL LIABILITY. The Borrower or any other member of the
Controlled Group shall have been notified by the sponsor of a Multiemployer Plan
that it has incurred withdrawal liability to such Multiemployer Plan in an
amount which, when aggregated with all other amounts required to be paid to
Multiemployer Plans by the Borrower or any other member of the Controlled Group
as withdrawal liability (determined as of the date of such notification),
exceeds $10,000,000 or requires payments exceeding $3,000,000 per annum.
47
7.13 GUARANTY. The Guaranty shall fail to remain in full force or effect
or any action shall be taken to discontinue or to assert the invalidity or
unenforceability of the Guaranty, or any Guarantor shall fail to comply with any
of the terms or provisions of any guaranty to which it is a party, or any
Guarantor shall deny that it has any further liability under any guaranty to
which it is a party, or shall give notice to such effect.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 ACCELERATION; FACILITY LC COLLATERAL ACCOUNT. (i) If any Default
described in Section 7.6 or 7.7 occurs with respect to the Borrower, the
obligations of the Lenders to make Loans hereunder and the obligation and power
of the LC Issuer to issue Facility LCs shall automatically terminate and the
Obligations shall immediately become due and payable without any election or
action on the part of the Agent, the LC Issuer or any Lender and the Borrower
will be and become thereby unconditionally obligated, without any further
notice, act or demand, to pay to the Agent an amount in immediately available
funds, which funds shall be held in the Facility LC Collateral Account, equal to
the difference of (x) the amount of LC Obligations at such time, less (y) the
amount on deposit in the Facility LC Collateral Account at such time which is
free and clear of all rights and claims of third parties and has not been
applied against the Obligations (such difference, the "Collateral Shortfall
Amount"). If any other Default occurs, the Required Lenders (or the Agent with
the consent of the Required Lenders) may (a) terminate or suspend the
obligations of the Lenders to make Loans hereunder and the obligation and power
of the LC Issuer to issue Facility LCs, or declare the Obligations to be due and
payable, or both, whereupon the Obligations shall become immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which the Borrower hereby expressly waives, and (b) upon notice to the Borrower
and in addition to the continuing right to demand payment of all amounts payable
under this Agreement, make demand on the Borrower to pay, and the Borrower will,
forthwith upon such demand and without any further notice or act, pay to the
Agent the Collateral Shortfall Amount, which funds shall be deposited in the
Facility LC Collateral Account.
(ii) If at any time while any Default is continuing, the Agent determines
that the Collateral Shortfall Amount at such time is greater than
zero, the Agent may make demand on the Borrower to pay, and the
Borrower will, forthwith upon such demand and without any further
notice or act, pay to the Agent the Collateral Shortfall Amount,
which funds shall be deposited in the Facility LC Collateral
Account.
(iii) The Agent may at any time or from time to time after funds are
deposited in the Facility LC Collateral Account, apply such funds to
the payment of the Obligations and any other amounts as shall from
time to time have become due and payable by the Borrower to the
Lenders or the LC Issuer under the Loan Documents.
(iv) At any time while any Default is continuing, neither the Borrower
nor any Person claiming on behalf of or through the Borrower shall
have any right to withdraw any of the funds held in the Facility LC
Collateral Account. After all of the
48
Obligations have been indefeasibly paid in full and the Aggregate
Commitment has been terminated, any funds remaining in the Facility
LC Collateral Account shall be returned by the Agent to the Borrower
or paid to whomever may be legally entitled thereto at such time.
(v) If, within 30 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make
Loans and the obligation and power of the LC Issuer to issue
Facility LCs hereunder as a result of any Default (other than any
Default as described in Section 7.6 or 7.7 with respect to the
Borrower) and before any judgment or decree for the payment of the
Obligations due shall have been obtained or entered, the Required
Lenders (in their sole discretion) shall so direct, the Agent shall,
by notice to the Borrower, rescind and annul such acceleration
and/or termination.
8.2 AMENDMENTS. Subject to the provisions of this Section 8.2, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder; provided, however, that no such supplemental agreement shall,
without the consent of all of the Lenders:
(i) Extend the final maturity of any Loan, or extend the expiry date of
any Facility LC to a date after the Facility Termination Date or
postpone any regularly scheduled payment of principal of any Loan or
forgive all or any portion of the principal amount thereof or any
Reimbursement Obligation related thereto, or reduce the rate or
extend the time of payment of interest or fees thereon or
Reimbursement Obligations related thereto.
(ii) Reduce the percentage specified in the definition of Required
Lenders.
(iii) Extend the Facility Termination Date, or reduce the amount or extend
the payment date for, the mandatory payments required under Section
2.2, or increase the amount of the Aggregate Revolving Credit
Commitment or of the Commitment of any Lender hereunder or the
commitment to issue Facility LCs, or permit the Borrower to assign
its rights under this Agreement. Notwithstanding the foregoing, upon
the execution and delivery of all documentation required by Section
2.8(iii) to be delivered in connection with an increase to the
Aggregate Commitment, the Agent, the Borrower and the new or
existing Lenders whose Commitments have been affected may and shall
enter into an amendment hereof (which shall be binding on all
parties hereto) solely for the purpose of reflecting any new Lenders
and their new Commitments and any increase in the Commitment of any
existing Lender.
(iv) Amend this Section 8.2 or Section 11.2.
(v) Release any Guarantor from its obligations under the Guaranty.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent, and no amendment of any
provision relating to the LC
49
Issuer shall be effective without the written consent of the LC Issuer. No
amendment of any provision of this Agreement relating to a Swing Line Lender or
any Swing Line Loan made by such Swing Line Lender shall be effective without
the written consent of the applicable Swing Line Lender. The Agent may waive
payment of the fee required under Section 12.3.3 without obtaining the consent
of any other party to this Agreement.
8.3 PRESERVATION OF RIGHTS. No delay or omission of the Lenders, the LC
Issuer or the Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and a Credit Extension notwithstanding the existence of a Default or
the inability of the Borrower to satisfy the conditions precedent to such Credit
Extension shall not constitute any waiver or acquiescence. Any single or partial
exercise of any such right shall not preclude other or further exercise thereof
or the exercise of any other right, and no waiver, amendment or other variation
of the terms, conditions or provisions of the Loan Documents whatsoever shall be
valid unless in writing signed by the Lenders required pursuant to Section 8.2,
and then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Agent, the LC Issuer and the Lenders until the
Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1 SURVIVAL OF REPRESENTATIONS. All representations and warranties of the
Borrower contained in this Agreement shall survive the making of the Credit
Extensions herein contemplated.
9.2 GOVERNMENTAL REGULATION. Anything contained in this Agreement to the
contrary notwithstanding, neither the LC Issuer nor any Lender shall be
obligated to extend credit to the Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation.
9.3 HEADINGS. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
9.4 ENTIRE AGREEMENT. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Agent, the LC Issuer and the Lenders and
supersede all prior agreements and understandings among the Borrower, the Agent,
the LC Issuer and the Lenders relating to the subject matter thereof other than
those contained in the fee letter described in Section 10.13 which shall survive
and remain in full force and effect during the term of this Agreement.
9.5 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or
50
benefit upon any Person other than the parties to this Agreement and their
respective successors and assigns, provided, however, that the parties hereto
expressly agree that the Arranger shall enjoy the benefits of the provisions of
Sections 9.6, 9.10 and 10.11 to the extent specifically set forth therein and
shall have the right to enforce such provisions on its own behalf and in its own
name to the same extent as if it were a party to this Agreement.
9.6 EXPENSES; INDEMNIFICATION. (i) The Borrower shall reimburse the Agents
and Banc One Capital Markets, Inc. for any costs and out-of-pocket expenses
(including, solely with respect to the Administrative Agent and BOCM, attorneys'
fees and time charges of attorneys for such parties other than attorneys which
are employees of such parties) paid or incurred by such parties in connection
with the preparation, negotiation, execution, delivery, syndication,
distribution (including, without limitation, via the internet), review,
amendment (proposed or actual), modification, and administration of the Loan
Documents. The Borrower also agrees to reimburse the Agent, the Arrangers, the
LC Issuer and the Lenders for any costs and out-of-pocket expenses (including
attorneys' fees and time charges of attorneys for the Agents, the Arrangers and
the Lenders, other than attorneys which are employees of the Agents, the
Arrangers, the LC Issuer or the Lenders) paid or incurred by the Agents, the
Arrangers, the LC Issuer or any Lender in connection with the collection and
enforcement of the Loan Documents.
(ii) The Borrower hereby further agrees to indemnify the Agents, the
Arrangers, each Lender, their respective affiliates, and each of their
directors, officers and employees against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without limitation,
all expenses of litigation or preparation therefor whether or not the Agents,
the Arrangers, any Lender or any affiliate is a party thereto) which any of them
may pay or incur arising out of or relating to this Agreement, the other Loan
Documents, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Credit Extension
hereunder except to the extent that they are determined in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the party seeking
indemnification. The obligations of the Borrower under this Section 9.6 shall
survive the termination of this Agreement.
9.7 LEFT BLANK INTENTIONALLY.
9.8 ACCOUNTING. Except as provided to the contrary herein, all accounting
terms used herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with GAAP in a manner consistent with that
used in preparing the financial statements referred to in Section 5.4, except
that any calculation or determination which is to be made on a consolidated
basis shall be made for the Borrower and all of its Subsidiaries, including
those Subsidiaries, if any, which are unconsolidated on the Borrowers' audited
financial statements. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and the Borrower, the Agent or the Required Lenders shall so request,
the Agent, the Lenders and the Loan Parties shall negotiate in good faith to
amend such ratio or requirement to preserve the original intent thereof in light
of such change in GAAP (subject to the approval of the Required Lenders),
provided that, until so amended, such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and the Borrower
shall provide to the Agent and the Lenders reconciliation statements showing the
difference in such calculation, together with the delivery of quarterly and
annual financial statements required hereunder.
51
9.9 SEVERABILITY OF PROVISIONS. Any provision in any Loan Document that is
held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as
to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
9.10 NONLIABILITY OF LENDERS. The relationship between the Borrower on the
one hand and the Lenders, the LC Issuer and the Agent on the other hand shall be
solely that of borrower and lender. Neither the Agent, the Arranger, the LC
Issuer nor any Lender shall have any fiduciary responsibilities to the Borrower.
Neither the Agent, the Arranger nor any Lender undertakes any responsibility to
the Borrower to review or inform the Borrower of any matter in connection with
any phase of the Borrower's business or operations. The Borrower agrees that
neither the Agent, the Arranger, the LC Issuer nor any Lender shall have
liability to the Borrower (whether sounding in tort, contract or otherwise) for
losses suffered by the Borrower in connection with, arising out of, or in any
way related to, the transactions contemplated and the relationship established
by the Loan Documents, or any act, omission or event occurring in connection
therewith, unless it is determined in a final non-appealable judgment by a court
of competent jurisdiction that such losses resulted from the gross negligence or
willful misconduct of the party from which recovery is sought. Neither the
Agent, the Arranger, the LC Issuer nor any Lender shall have any liability with
respect to, and the Borrower hereby waives, releases and agrees not to ▇▇▇ for,
any special, indirect, consequential or punitive damages suffered by the
Borrower in connection with, arising out of, or in any way related to the Loan
Documents or the transactions contemplated thereby.
9.11 CONFIDENTIALITY. The Agent and each Lender agrees to hold any
confidential information which it may receive from the Borrower in connection
with this Agreement in confidence, except for disclosure (i) to its Affiliates
and to the Agent and any other Lender and their respective Affiliates in
connection with the transactions contemplated hereby, (ii) to legal counsel,
accountants, and other professional advisors to such Lender or to a Transferee,
(iii) to regulatory officials, (iv) to any Person as required by law,
regulation, or legal process, (v) to any Person in connection with any legal
proceeding to which it is a party, (vi) to its direct or indirect contractual
counterparties in swap agreements or to legal counsel, accountants and other
professional advisors to such counterparties, (vii) permitted by Section 12.4,
and (viii) to rating agencies if requested or required by such agencies in
connection with a rating relating to the Advances hereunder. Without limiting
Section 9.4, the Borrower agrees that the terms of this Section 9.11 shall set
forth the entire agreement between the Borrower and each Lender (including the
Agent) with respect to any confidential information previously or hereafter
received by such Lender in connection with this Agreement, and this Section 9.11
shall supersede any and all prior confidentiality agreements entered into by
such Lender with respect to such confidential information.
9.12 NONRELIANCE. Each Lender hereby represents that it is not relying on
or looking to any margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) for the repayment of the Credit
Extensions provided for herein.
9.13 DISCLOSURE. The Borrower and each Lender hereby acknowledge and agree
that Bank One and/or its Affiliates from time to time may hold investments in,
make other loans to or have other relationships with the Borrower and its
Affiliates.
52
9.14 USA PATRIOT ACT NOTIFICATION. The following notification is provided
to Borrower pursuant to Section 326 of the USA Patriot Act of 2001, 31 U.S.C.
Section 5318:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the
government fight the funding of terrorism and money laundering activities,
Federal law requires all financial institutions to obtain, verify, and record
information that identifies each person or entity that opens an account,
including any deposit account, treasury management account, loan, other
extension of credit, or other financial services product. What this means for
Borrower: When Borrower opens an account, if Borrower is an individual, Agent
and the Lenders will ask for Borrower's name, residential address, tax
identification number, date of birth, and other information that will allow
Agent and the Lenders to identify Borrower, and, if Borrower is not an
individual, Agent and the Lenders will ask for Borrower's name, tax
identification number, business address, and other information that will allow
Agent and the Lenders to identify Borrower. Agent and the Lenders may also ask,
if Borrower is an individual, to see Borrower's driver's license or other
identifying documents, and, if Borrower is not an individual, to see Borrower's
legal organizational documents or other identifying documents.
9.15 CASH COLLATERAL RELEASE. The Agent is hereby directed by the Lenders,
and the Agent agrees, to promptly release to Travelers the cash collateral
provided by Travelers pursuant to Section 4.1(xi) (including all interest earned
thereon) in the event that the conditions set forth in Section 4.2 have been
satisfied.
ARTICLE X
THE AGENT
10.1 APPOINTMENT; NATURE OF RELATIONSHIP. Bank One, NA is hereby appointed
by each of the Lenders as its contractual representative (herein referred to as
the "Agent") hereunder and under each other Loan Document, and each of the
Lenders irrevocably authorizes the Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth
herein and in the other Loan Documents. The Agent agrees to act as such
contractual representative upon the express conditions contained in this Article
X. Notwithstanding the use of the defined term "Agent," it is expressly
understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other Loan
Document and that the Agent is merely acting as the contractual representative
of the Lenders with only those duties as are expressly set forth in this
Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Agent (i) does not hereby assume any fiduciary
duties to any of the Lenders, (ii) is a "representative" of the Lenders within
the meaning of the term "secured party" as defined in the Illinois Uniform
Commercial Code and (iii) is acting as an independent contractor, the rights and
duties of which are limited to those expressly set forth in this Agreement and
the other Loan Documents. Each of the Lenders hereby agrees to assert no claim
against the Agent on any agency theory or any other theory of liability for
breach of fiduciary duty, all of which claims each Lender hereby waives.
10.2 POWERS. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall have no implied duties to the
53
Lenders, or any obligation to the Lenders to take any action thereunder except
any action specifically provided by the Loan Documents to be taken by the Agent.
10.3 GENERAL IMMUNITY. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
to the extent such action or inaction is determined in a final non-appealable
judgment by a court of competent jurisdiction to have arisen from the gross
negligence or willful misconduct of such Person.
10.4 NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. 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 (a) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Agent; (d) the existence
or possible existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; (f) the
value, sufficiency, creation, perfection or priority of any Lien in any
collateral security; or (g) the financial condition of the Borrower or any
guarantor of any of the Obligations or of any of the Borrower's or any such
guarantor's respective Subsidiaries. The Agent shall have no duty to disclose to
the Lenders information that is not required to be furnished by the Borrower to
the Agent at such time, but is voluntarily furnished by the Borrower to the
Agent (either in its capacity as Agent or in its individual capacity).
10.5 ACTION ON INSTRUCTIONS OF LENDERS. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders. The Lenders hereby
acknowledge that the Agent shall be under no duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this Agreement
or any other Loan Document unless it shall be requested in writing to do so by
the Required Lenders. The Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders pro rata against any and
all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
10.6 EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
54
10.7 RELIANCE ON DOCUMENTS; COUNSEL. The Agent shall be entitled to rely
upon any Note, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex, electronic mail message, statement, paper or document believed
by it to be genuine and correct and to have been signed or sent by the proper
person or persons, and, in respect to legal matters, upon the opinion of counsel
selected by the Agent, which counsel may be employees of the Agent. For purposes
of determining compliance with the conditions specified in Sections 4.1 and 4.2,
each Lender that has signed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Agent shall have received notice from such
Lender prior to the applicable date specifying its objection thereto.
10.8 AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not
reimbursed by the Borrower for which the Agent is entitled to reimbursement by
the Borrower under the Loan Documents, (ii) for any other expenses incurred by
the Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents
(including, without limitation, for any expenses incurred by the Agent in
connection with any dispute between the Agent and any Lender or between two or
more of the Lenders) and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Agent in connection with any dispute
between the Agent and any Lender or between two or more of the Lenders), or the
enforcement of any of the terms of the Loan Documents or of any such other
documents, provided that (i) no Lender shall be liable for any of the foregoing
to the extent any of the foregoing is found in a final non-appealable judgment
by a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of the Agent and (ii) any indemnification required
pursuant to Section 3.5(vii) shall, notwithstanding the provisions of this
Section 10.8, be paid by the relevant Lender in accordance with the provisions
thereof. The obligations of the Lenders under this Section 10.8 shall survive
payment of the Obligations and termination of this Agreement.
10.9 NOTICE OF DEFAULT. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Unmatured Default hereunder unless
the Agent has received written notice from a Lender or the Borrower referring to
this Agreement describing such Default or Unmatured Default and stating that
such notice is a "notice of default". In the event that the Agent receives such
a notice, the Agent shall give prompt notice thereof to the Lenders.
10.10 RIGHTS AS A LENDER. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Agent, and the term "Lender" or
"Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any
55
other Loan Document, with the Borrower or any of its Subsidiaries in which the
Borrower or such Subsidiary is not restricted hereby from engaging with any
other Person. The Agent, in its individual capacity, is not obligated to remain
a Lender.
10.11 LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Arranger or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
10.12 SUCCESSOR AGENT. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower, such resignation to be effective
upon the appointment of a successor Agent or, if no successor Agent has been
appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. The Agent may be removed at any time with or without cause
by written notice received by the Agent from the Required Lenders, such removal
to be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of the Borrower and the Lenders, a successor Agent. If no successor Agent
shall have been so appointed by the Required Lenders within thirty days after
the resigning Agent's giving notice of its intention to resign, then the
resigning Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Agent. Notwithstanding the previous sentence, the Agent may at any
time without the consent of the Borrower or any Lender, appoint any of its
Affiliates which is a commercial bank as a successor Agent hereunder. If the
Agent has resigned or been removed and no successor Agent has been appointed,
the Lenders may perform all the duties of the Agent hereunder and the Borrower
shall make all payments in respect of the Obligations to the applicable Lender
and for all other purposes shall deal directly with the Lenders. No successor
Agent shall be deemed to be appointed hereunder until such successor Agent has
accepted the appointment. Any such successor Agent shall be a commercial bank
having capital and retained earnings of at least $100,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning or removed Agent. Upon
the effectiveness of the resignation or removal of the Agent, the resigning or
removed Agent shall be discharged from its duties and obligations hereunder and
under the Loan Documents. After the effectiveness of the resignation or removal
of an Agent, the provisions of this Article X shall continue in effect for the
benefit of such Agent in respect of any actions taken or omitted to be taken by
it while it was acting as the Agent hereunder and under the other Loan
Documents. In the event that there is a successor to the Agent by merger, or the
Agent assigns its duties and obligations to an Affiliate pursuant to this
Section 10.12, then the term "Prime Rate" as used in this Agreement shall mean
the prime rate, base rate or other analogous rate of the new Agent.
10.13 AGENT AND ARRANGER FEES. The Borrower agrees to pay to the Agent and
the Banc One Capital Markets, Inc., for their respective accounts, the fees
agreed to by the Borrower, the Agent, Banc One Capital Markets, Inc., pursuant
to that certain fee letter agreement dated March 19, 2004, or as otherwise
agreed from time to time. The Borrower agrees to pay to Wachovia Bank, National
Association and Wachovia Capital Markets, LLC, for their respective
56
accounts, the fees agreed to by the Borrower and such parties pursuant to that
certain fee letter agreement dated March 19, 2004, or as otherwise agreed from
time to time.
10.14 DELEGATION TO AFFILIATES. The Borrower and the Lenders agree that
the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under Articles IX and X.
10.15 CO-DOCUMENTATION AGENTS, SYNDICATION AGENT, ETC. Neither any of the
Lenders identified in this Agreement as a "Co-Documentation Agent" nor the
"Syndication Agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of such Lenders shall have
or be deemed to have a fiduciary relationship with any Lender. Each Lender
hereby makes the same acknowledgments with respect to such Lenders as it makes
with respect to the Agent in Section 10.11.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 SETOFF. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of the Borrower may
be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part thereof, shall then be due.
11.2 RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans (other than payments received pursuant to
Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to their Loans. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns permitted hereby, except
that (i) the Borrower shall not have the right to
57
assign its rights or obligations under the Loan Documents without the prior
written consent of each Lender, (ii) any assignment by any Lender must be made
in compliance with Section 12.3, and (iii) any transfer by Participation must be
made in compliance with Section 12.2. Any attempted assignment or transfer by
any party not made in compliance with this Section 12.1 shall be null and void,
unless such attempted assignment or transfer is treated as a participation in
accordance with Section 12.3.2. The parties to this Agreement acknowledge that
clause (ii) of this Section 12.1 relates only to absolute assignments and this
Section 12.1 does not prohibit assignments creating security interests,
including, without limitation, (x) any pledge or assignment by any Lender of all
or any portion of its rights under this Agreement and any Note to a Federal
Reserve Bank or (y) in the case of a Lender which is a Fund, any pledge or
assignment of all or any portion of its rights under this Agreement and any Note
to its trustee in support of its obligations to its trustee; provided, however,
that no such pledge or assignment creating a security interest shall release the
transferor Lender from its obligations hereunder unless and until the parties
thereto have complied with the provisions of Section 12.3. The Agent may treat
the Person which made any Loan or which holds any Note as the owner thereof for
all purposes hereof unless and until such Person complies with Section 12.3;
provided, however, that the Agent may in its discretion (but shall not be
required to) follow instructions from the Person which made any Loan or which
holds any Note to direct payments relating to such Loan or Note to another
Person. Any assignee of the rights to any Loan or any Note agrees by acceptance
of such assignment to be bound by all the terms and provisions of the Loan
Documents. Any request, authority or consent of any Person, who at the time of
making such request or giving such authority or consent is the owner of the
rights to any Loan (whether or not a Note has been issued in evidence thereof),
shall be conclusive and binding on any subsequent holder or assignee of the
rights to such Loan.
12.2 PARTICIPATIONS.
12.2.1 PERMITTED PARTICIPANTS; EFFECT. Any Lender may at any time
sell to one or more banks or other entities ("Participants")
participating interests in any Obligations owing to such Lender, any
Note held by such Lender, any Commitment of such Lender or any other
interest of such Lender under the Loan Documents. In the event of
any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely responsible
to the other parties hereto for the performance of such obligations,
such Lender shall remain the owner of its Obligations and the holder
of any Note issued to it in evidence thereof for all purposes under
the Loan Documents, all amounts payable by the Borrower under this
Agreement shall be determined as if such Lender had not sold such
participating interests, and the Borrower and the Agent shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under the Loan Documents.
12.2.2 VOTING RIGHTS. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver with respect to any
Credit Extension or Commitment in which such Participant has an
interest which would require consent of all of the Lenders pursuant
to the terms of Section 8.2 or of any other Loan Document.
58
12.2.3 BENEFIT OF CERTAIN PROVISIONS. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in
Section 11.1 in respect of its participating interest in amounts
owing under the Loan Documents to the same extent as if the amount
of its participating interest were owing directly to it as a Lender
under the Loan Documents, PROVIDED that each Lender shall retain the
right of setoff provided in Section 11.1 with respect to the amount
of participating interests sold to each Participant. The Lenders
agree to share with each Participant, and each Participant, by
exercising the right of setoff provided in Section 11.1, agrees to
share with each Lender, any amount received pursuant to the exercise
of its right of setoff, such amounts to be shared in accordance with
Section 11.2 as if each Participant were a Lender. The Borrower
further agrees that each Participant shall be entitled to the
benefits of Sections 3.1, 3.2, 3.4 and 3.5 to the same extent as if
it were a Lender and had acquired its interest by assignment
pursuant to Section 12.3, PROVIDED that (i) a Participant shall not
be entitled to receive any greater payment under Section 3.1, 3.2 or
3.5 than the Lender who sold the participating interest to such
Participant would have received had it retained such interest for
its own account, unless the sale of such interest to such
Participant is made with the prior written consent of the Borrower,
and (ii) any Participant not incorporated under the laws of the
United States of America or any State thereof agrees to comply with
the provisions of Section 3.5 to the same extent as if it were a
Lender.
12.3 ASSIGNMENTS.
12.3.1 PERMITTED ASSIGNMENTS. Any Lender may at any time assign to
one or more banks or other entities ("Purchasers") all or any part
of its rights and obligations under the Loan Documents. Such
assignment shall be substantially in the form of EXHIBIT D or in
such other form as may be agreed to by the parties thereto. Each
such assignment with respect to a Purchaser which is not a Lender or
an Affiliate of a Lender or an Approved Fund shall either be in an
amount equal to the entire applicable Commitment and Loans of the
assigning Lender or (unless each of the Borrower and the Agent
otherwise consents) be in an aggregate amount not less than
$5,000,000 in the case of any assignment of a Revolving Credit
Commitment and $1,000,000 in the case of any assignment of a Term
Loan or Term Loan Commitment. The amount of the assignment shall be
based on the Commitment or outstanding Loans (if the Commitment has
been terminated) subject to the assignment, determined as of the
date of such assignment or as of the "Trade Date," if the "Trade
Date" is specified in the assignment.
12.3.2 CONSENTS. The consent of the Borrower shall be required prior
to an assignment becoming effective unless the Purchaser is a
Lender, an Affiliate of a Lender or an Approved Fund, provided that
the consent of the Borrower shall not be required if a Default has
occurred and is continuing. The consent of the Agent and the LC
Issuer shall be required prior to an assignment becoming effective
unless (i) in the case of an assignment of a Revolving Credit
Commitment, the Purchaser is a Lender with a Revolving Credit
Commitment, an Affiliate thereof or an Approved Fund associated
therewith or (ii) in the case of an assignment of
59
any other Commitment or Loans, the Purchaser is a Lender, an
Affiliate of a Lender or an Approved Fund. Any consent required
under this Section 12.3.2 shall not be unreasonably withheld or
delayed.
12.3.3 EFFECT; EFFECTIVE DATE. Upon (i) delivery to the Agent of an
assignment, together with any consents required by Sections 12.3.1
and 12.3.2, and (ii) payment by the Seller or the Purchaser of a
$3,500 fee to the Agent for processing such assignment, such
assignment shall become effective on the effective date specified in
such assignment. The assignment shall contain a representation by
the Purchaser to the effect that none of the consideration used to
make the purchase of the Commitment and Loans under the applicable
assignment agreement constitutes "plan assets" as defined under
ERISA and that the rights and interests of the Purchaser in and
under the Loan Documents will not be "plan assets" under ERISA. On
and after the effective date of such assignment, such Purchaser
shall for all purposes be a Lender party to this Agreement and any
other Loan Document executed by or on behalf of the Lenders and
shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party
thereto, and the transferor Lender shall be released with respect to
the Commitment and Outstanding Revolving Credit Exposure assigned to
such Purchaser without any further consent or action by the
Borrower, the Lenders or the Agent. In the case of an assignment
covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a Lender hereunder but
shall continue to be entitled to the benefits of, and subject to,
those provisions of this Agreement and the other Loan Documents
which survive payment of the Obligations and termination of the
applicable agreement. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with
this Section 12.3 shall be treated for purposes of this Agreement as
a sale by such Lender of a participation in such rights and
obligations in accordance with Section 12.2. Upon the consummation
of any assignment to a Purchaser pursuant to this Section 12.3.3,
the transferor Lender, the Agent and the Borrower shall, if the
transferor Lender or the Purchaser desires that its Loans be
evidenced by Notes, make appropriate arrangements so that new Notes
or, as appropriate, replacement Notes are issued to such transferor
Lender and new Notes or, as appropriate, replacement Notes, are
issued to such Purchaser, in each case in principal amounts
reflecting their respective Commitments, as adjusted pursuant to
such assignment.
12.3.4 REGISTER. The Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at one of its offices in
Chicago, Illinois a copy of each Assignment and Assumption delivered
to it and a register for the recordation of the names and addresses
of the Lenders, and the Revolving Credit Commitment and/or Term Loan
Commitment, as applicable, and principal amounts of the Revolving
Loans, Term Loans and/or Swing Line Loans, as applicable, owing to,
each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and
the Borrower, the Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for
60
inspection by the Borrower at any reasonable time and from time to
time upon reasonable prior notice.
12.4 DISSEMINATION OF INFORMATION. The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries, including
without limitation any information contained in any Reports; provided that each
Transferee and prospective Transferee agrees to be bound by Section 9.11 of this
Agreement.
12.5 TAX TREATMENT. If any interest in any Loan Document is transferred to
any Transferee which is not incorporated under the laws of the United States or
any State thereof, the transferor Lender shall cause such Transferee,
concurrently with the effectiveness of such transfer, to comply with the
provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION
(a) NOTICES GENERALLY. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in paragraph (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows:
(i) if to the Borrower, at its address or telecopier number set
forth on the signature page hereof;
(ii) if to the Administrative Agent, at its address or telecopier
number set forth on the signature page hereof;
(iii) if to the LC Issuer, at its address or telecopier number set
forth on the signature page hereof;
(iv) if to a Lender, to it at its address or telecopier number set
forth in its administrative questionnaire provided to Agent.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next Business Day for the
recipient). Notices delivered through electronic communications to the extent
provided in paragraph (b) below, shall be effective as provided in said
paragraph (b).
(b) ELECTRONIC COMMUNICATIONS. Notices and other communications to the
Lenders may be delivered or furnished by electronic communication (including
e-mail and internet or intranet websites) pursuant to procedures approved by the
Agent or as otherwise determined by
61
the Agent, provided that the foregoing shall not apply to notices to any Lender
pursuant to Article II if such Lender has notified the Agent that it is
incapable of receiving notices under such Article by electronic communication
and, in the case of notice of Default or Unmatured Default, shall permit
notification only by Intralinks or a similar website. The Agent or the Borrower
may, in its respective discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it or as it otherwise determines, provided that such
determination or approval may be limited to particular notices or
communications.
Unless the Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), PROVIDED that if such notice or other communication is
not given during the normal business hours of the recipient, such notice or
communication shall be deemed to have been given at the opening of business on
the next Business Day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) CHANGE OF ADDRESS, ETC. Any party hereto may change its address or
telecopier number for notices and other communications hereunder by notice to
the other parties hereto.
ARTICLE XIV
COUNTERPARTS; INTEGRATION; EFFECTIVENESS; ELECTRONIC EXECUTION
14.1 COUNTERPARTS; EFFECTIVENESS. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. Except as provided in Article IV, this
Agreement shall become effective when it shall have been executed by the Agent
and when the Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement.
14.2 ELECTRONIC EXECUTION OF ASSIGNMENTS. The words "execution," "signed,"
"signature," and words of like import in any assignment and assumption agreement
shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, or any other state laws based on the Uniform Electronic
Transactions Act.
62
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
15.2 CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE
COURT SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
LIMIT THE RIGHT OF THE AGENT, THE LC ISSUER OR ANY LENDER TO BRING PROCEEDINGS
AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL
PROCEEDING BY THE BORROWER AGAINST THE AGENT, OR ANY LENDER OR ANY AFFILIATE OF
THE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT
ONLY IN A COURT IN NEW YORK, NEW YORK.
15.3 WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH LENDER HEREBY
WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
[signature page follows]
63
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have executed
this Agreement as of the date first above written.
MONEYGRAM INTERNATIONAL, INC.
By:
---------------------------------
Title:
------------------------------
(ADDRESS)
------------------------------
------------------------------
Attention:
--------------------------
Telephone:( ) ___-____
FAX: ( ) ___-____
S-1
[TO MONEYGRAM CREDIT AGREEMENT]
BANK ONE, NA,
Individually and as Agent
By:
---------------------------------
Its:
--------------------------------
S-2
[TO MONEYGRAM CREDIT AGREEMENT]
WACHOVIA BANK, NATIONAL ASSOCIATION,
Individually and as Syndication Agent
By:
---------------------------------
Its:
--------------------------------
S-3
[TO MONEYGRAM CREDIT AGREEMENT]
BANK OF AMERICA, N.A.
By:
---------------------------------
Its:
--------------------------------
S-4
[TO MONEYGRAM CREDIT AGREEMENT]
KEYBANK NATIONAL ASSOCIATION
By:
---------------------------------
Its:
--------------------------------
S-5
[TO MONEYGRAM CREDIT AGREEMENT]
U.S. BANK NATIONAL ASSOCIATION
By:
---------------------------------
Its:
--------------------------------
S-6
[TO MONEYGRAM CREDIT AGREEMENT]
BNP PARIBAS
By:
---------------------------------
Its:
--------------------------------
S-7
[TO MONEYGRAM CREDIT AGREEMENT]
CITICORP USA
By:
---------------------------------
Its:
--------------------------------
S-8
[TO MONEYGRAM CREDIT AGREEMENT]
CALYON NEW YORK BRANCH
By:
---------------------------------
Its:
--------------------------------
S-9
[TO MONEYGRAM CREDIT AGREEMENT]
THE ROYAL BANK OF SCOTLAND PLC
By:
---------------------------------
Its:
--------------------------------
S-10
[TO MONEYGRAM CREDIT AGREEMENT]
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By:
---------------------------------
Its:
--------------------------------
S-11
[TO MONEYGRAM CREDIT AGREEMENT]
BRANCH BANKING & TRUST COMPANY
By:
---------------------------------
Its:
--------------------------------
S-12
[TO MONEYGRAM CREDIT AGREEMENT]
SOCIETE GENERALE
By:
---------------------------------
Its:
--------------------------------
S-13
[TO MONEYGRAM CREDIT AGREEMENT]
SUNTRUST BANK
By:
---------------------------------
Its:
--------------------------------
S-14
[TO MONEYGRAM CREDIT AGREEMENT]
ABN AMRO BANK N.V.
By:
---------------------------------
Its:
--------------------------------
S-15
[TO MONEYGRAM CREDIT AGREEMENT]
PRICING SCHEDULE
=====================================================================
APPLICABLE LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
MARGIN STATUS STATUS STATUS STATUS STATUS
---------------------------------------------------------------------
EURODOLLAR 0.45% .50% 0.60% 0.675% 0.875%
RATE
---------------------------------------------------------------------
FLOATING RATE 0% 0% 0% 0% 0.50%
=====================================================================
=====================================================================
APPLICABLE LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
FEE RATE STATUS STATUS STATUS STATUS STATUS
=====================================================================
---------------------------------------------------------------------
LETTER OF 0.45% 0.50% 0.60% 0.675% 0.875%
CREDIT FEE
---------------------------------------------------------------------
---------------------------------------------------------------------
FACILITY FEE 0.10% 0.125% 0.15% 0.20% 0.375%
=====================================================================
For the purposes of this Schedule, the following terms have the following
meanings, subject to split rating and other provisions of the final paragraph of
this Schedule:
"Fitch Rating" means, at any time, the issuer rating issued by Fitch and
then in effect with respect to the Borrower's senior unsecured long-term debt
without third party credit enhancement.
"Level I Status" exists at any date if, on such date, the Borrower's
▇▇▇▇▇'▇ Rating is A3 or better or the Borrower's S&P Rating or Fitch Rating is
A- or better.
"Level II Status" exists at any date if, on such date, (i) the Borrower
has not qualified for Level I Status and (ii) the Borrower's ▇▇▇▇▇'▇ Rating is
Baa1 or better or the Borrower's S&P Rating or Fitch Rating is BBB+ or better.
"Level III Status" exists at any date if, on such date, (i) the Borrower
has not qualified for Level I Status or Level II Status and (ii) the Borrower's
▇▇▇▇▇'▇ Rating is Baa2 or better or the Borrower's S&P Rating or Fitch Rating is
BBB or better.
"Level IV Status" exists at any date if, on such date, (i) the Borrower
has not qualified for Level I Status, Level II Status or Level III Status and
(ii) the Borrower's ▇▇▇▇▇'▇ Rating is Baa3 or better or the Borrower's S&P
Rating or Fitch Rating is BBB- or better.
"Level V Status" exists at any date if, on such date, the Borrower has not
qualified for Level I Status; Level II Status, Level III Status or Level IV
Status.
"▇▇▇▇▇'▇ Rating" means, at any time, the issuer rating issued by ▇▇▇▇▇'▇
and then in effect with respect to the Borrower's senior unsecured long-term
debt without third party credit enhancement.
"S&P Rating" means, at any time, the issuer rating issued by S&P, and then
in effect with respect to the Borrower's senior unsecured long-term debt without
third party credit enhancement.
"Status" means either Level I Status, Level II Status, Level III Status,
Level IV Status or Level V Status.
The Applicable Margin and Applicable Fee Rate shall be determined in
accordance with the foregoing table based on the Borrower's Status as determined
from its then-current ▇▇▇▇▇'▇ and S&P Ratings and if such ratings change during
any reporting period, the Status shall change on such date. Notwithstanding
anything herein to the contrary, in the event of a split rating, the highest
rating shall apply and in the event of a split rating of two or more gradations,
the rating that is one level above the lowest rating shall apply; provided,
however, that if at any time the Fitch Rating is higher than both the ▇▇▇▇▇'▇
Rating and the S&P Rating, then the Fitch Rating shall be disregarded for all
purposes of determining the Borrower's Status.1 The credit rating in effect on
any date for the purposes of this Schedule is that in effect at the close of
business on such date. If at any time the Borrower has neither a ▇▇▇▇▇'▇ Rating
nor an S&P Rating, Level V Status shall exist.
--------
1 For example, if the Borrower's ▇▇▇▇▇'▇ Rating is Baa1 but its S&P Rating
is BBB, Level II Status would exist; and if the Borrower's ▇▇▇▇▇'▇ Rating
is Baa1 but its S&P Rating is BBB-, Level III Status would exist.
COMMITMENT SCHEDULE
REVOLVING TERM
CREDIT LOAN
LENDER COMMITMENT COMMITMENT TOTAL
Bank One, NA $25,000,000.00 $10,000,000.00 $35,000,000.00
Wachovia Bank, National $25,000,000.00 $10,000,000.00 $35,000,000.00
Association
Bank of America, N.A. $21,428,571.43 $8,571,428.57 $30,000,000.00
KeyBank National Association $21,428,571.43 $8,571,428.57 $30,000,000.00
U.S. Bank National Association $21,428,571.43 $8,571,428.57 $30,000,000.00
BNP Paribas $16,428,571.43 $6,571,428.57 $23,000,000.00
Citicorp USA $16,428,571.43 $6,571,428.57 $23,000,000.00
Calyon New York Branch $16,428,571.43 $6,571,428.57 $23,000,000.00
The Royal Bank of Scotland plc $16,428,571.43 $6,571,428.57 $23,000,000.00
▇▇▇▇▇ Fargo Bank, National $16,428,571.43 $6,571,428.57 $23,000,000.00
Association
Branch Banking and Trust Company $13,392,857.14 $5,357,142.86 $18,750,000.00
Societe Generale $13,392,857.14 $5,357,142.86 $18,750,000.00
SunTrust Bank $13,392,857.14 $5,357,142.86 $18,750,000.00
ABN AMRO Bank N.V. $13,392,857.14 $5,357,142.86 $18,750,000.00
Total: $250,000,000.00 $100,000,000.00 $350,000,000.00