Exhibit 4.1
BRIDGE
CREDIT AGREEMENT
Dated as of March 31, 2005
Among
MGIC INVESTMENT CORPORATION,
BNP PARIBAS,
as Administrative Agent,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY
HERETO
Arranged by
BNP PARIBAS SECURITIES CORP.,
as Sole Lead Arranger and Sole Bookrunner
TABLE OF CONTENTS
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Section
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Page
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ARTICLE I
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DEFINITIONS
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Certain Defined
Terms
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1
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Other
Interpretive Provisions
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14
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Accounting
Principles
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15
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ARTICLE II
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THE CREDITS
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Amounts and
Terms of Commitments
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15
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Loan
Accounts
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16
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Procedure for
Borrowing
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16
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Conversion and
Continuation Elections
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17
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Termination or
Reduction of Commitments
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18
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Optional
Prepayments
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18
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Mandatory
Prepayments
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19
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Repayment
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19
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Interest
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19
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Commitment
Fees
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20
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Computation of
Fees and Interest
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20
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Payments by the
Company
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20
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Payments by the
Banks to the Agent
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21
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Sharing of
Payments, Etc
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21
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ARTICLE III
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TAXES, YIELD PROTECTION AND
ILLEGALITY
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Taxes
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22
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Illegality
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23
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Increased Costs
and Reduction of Return
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24
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Funding
Losses
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25
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Inability to
Determine Rates
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25
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Substitution of
Banks
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26
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Survival
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26
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-i-
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Section
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Page
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ARTICLE IV
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CONDITIONS PRECEDENT
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Conditions of
Initial Loans
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26
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Conditions to
All Borrowings
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27
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ARTICLE V
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REPRESENTATIONS AND
WARRANTIES
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Corporate
Existence and Power
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28
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Corporate
Authorization; No Contravention
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28
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Governmental
Authorization
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29
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Binding
Effect
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29
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Litigation
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29
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No
Default
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29
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ERISA
Compliance
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29
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Use of
Proceeds; Margin Regulations
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30
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Title to
Properties
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30
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Taxes
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30
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Financial
Condition
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31
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Environmental
Matters
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31
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Regulated
Entities
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31
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Full
Disclosure
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32
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ARTICLE VI
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AFFIRMATIVE COVENANTS
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Financial
Statements
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32
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Certificates;
Other Information
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33
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Notices
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34
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Preservation of
Corporate Existence, Etc
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34
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Maintenance of
Property
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34
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Insurance
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34
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Payment of
Obligations
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34
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Compliance with
Laws
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35
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Compliance with
ERISA
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35
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Inspection of
Property and Books and Records
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35
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Environmental
Laws
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35
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Use of
Proceeds
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35
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-ii-
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Section
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Page
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ARTICLE VII
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NEGATIVE COVENANTS
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Limitation on
Liens
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35
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Disposition of
Assets
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37
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Consolidations
and Mergers
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38
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Limitation on
Indebtedness
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38
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Use of
Proceeds
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39
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ERISA
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39
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Change in
Business
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39
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Financial
Covenants
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39
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ARTICLE VIII
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EVENTS OF DEFAULT
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Event of
Default
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40
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Remedies
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42
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Rights Not
Exclusive
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42
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ARTICLE IX
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THE AGENT
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Appointment and
Authorization
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42
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Delegation of
Duties
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42
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Liability of
Agent
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43
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Reliance by
Agent
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43
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Notice of
Default
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43
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Credit
Decision
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44
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Indemnification
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44
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Agent in
Individual Capacity
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45
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Successor
Agent
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45
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Withholding
Tax
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45
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ARTICLE X
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MISCELLANEOUS
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Amendments and
Waivers
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47
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Notices
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47
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No Waiver;
Cumulative Remedies
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48
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Costs and
Expenses
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48
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Indemnity
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49
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Payments Set
Aside
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49
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Successors and
Assigns
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49
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-iii-
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Section
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Page
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Assignments,
Participations, etc
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49
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Confidentiality
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52
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Set-off
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53
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Margin Stock
Not Collateral
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53
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Notification of
Addresses, Lending Offices, Etc
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53
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Counterparts
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53
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Severability
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53
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No Third
Parties Benefited
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53
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Governing Law
and Jurisdiction
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53
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Waiver of Jury
Trial
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54
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Entire
Agreement
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54
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No Bankruptcy
Proceedings
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55
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USA Patriot
Act
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55
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-iv-
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List of Persons
Not Subsidiaries
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Commitments and
Pro Rata Shares
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Litigation
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ERISA
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Permitted
Liabilities
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Environmental
Matters
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Permitted
Liens
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Lending
Offices; Addresses for Notices
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Form of Notice
of Borrowing
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Form of Notice
of Conversion/Continuation
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Form of
Compliance Certificate
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Form of Legal
Opinion of Company’s Counsel
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Form of
Assignment and Acceptance
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Form of
Promissory Note
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Form of
Designation Agreement
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-v-
BRIDGE CREDIT AGREEMENT
This BRIDGE CREDIT
AGREEMENT is entered into as of March 31, 2005, among MGIC
Investment Corporation, a Wisconsin corporation (the “
Company ”), the several financial institutions from
time to time party to this Agreement (collectively, the “
Banks ”; individually, a “ Bank ”),
and BNP Paribas, as administrative agent for the Banks (in such
capacity, the “ Agent ”).
WHEREAS, the Banks
have agreed to make available to the Company a credit facility upon
the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in
consideration of the mutual agreements, provisions and covenants
contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1
Certain Defined Terms . The following terms have the
following meanings:
“
Acquired Subsidiary ” means a Subsidiary (i) the
stock or equity interests in which are acquired (whether by
purchase, merger or otherwise) after the date hereof from a Person
or Persons which are not Subsidiaries at the time of such
acquisition or (ii) the majority of the assets of which are
acquired (whether by purchase, merger or otherwise) after the date
hereof from a Person or Persons which are not Subsidiaries at the
time of such acquisition.
“
Acquisition ” means any transaction or series of
related transactions for the purpose of or resulting, directly or
indirectly, in (a) the acquisition of all or substantially all
of the assets of a Person, or of any business or division of a
Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests or equity of any Person, or otherwise
causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other
than a Person that is a Subsidiary), provided that the Company or
the Subsidiary is the surviving entity.
“
Affiliate ” means, as to any Person, any other Person
which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. A Person shall be
deemed to control another Person if the controlling Person
possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of the other Person,
whether through the ownership of voting securities, by contract, or
otherwise.
“
Agent ” means BNP Paribas in its capacity as
administrative agent for the Banks hereunder, and any successor
administrative agent arising under Section 9.9.
“
Agent-Related Persons ” means BNP Paribas and any
successor agent arising under Section 9.9 , together
with their respective Affiliates (including, in the case of BNP
Paribas, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and
Affiliates.
“
Agent’s Payment Office ” means the address for
payments set forth on the signature page hereto in relation to the
Agent, or such other address as the Agent may from time to time
specify.
“
Agreement ” means this Credit Agreement.
“ Annual
Statement ” means the annual financial statement of any
insurance company as required to be filed with the Department,
together with all exhibits or schedules filed therewith, prepared
in conformity with SAP.
“
Applicable Margin ” means 0.0% for Base Rate Loans and
0.33% for Offshore Base Rate Loans.
“
Arranger ” means BNP Paribas Securities Corp., as sole
lead arranger and sole bookrunner.
“
Assignee ” has the meaning specified in subsection
10.8(a) .
“
Attorney Costs ” means and includes all fees and
disbursements of any law firm or other external counsel, the
non-duplicative allocated cost of internal legal services and all
disbursements of internal counsel.
“
Bank ” has the meaning specified in the introductory
clause hereto.
“
Bankruptcy Code ” means the Federal Bankruptcy Reform
Act of 1978 (11 U.S.C. §101, et seq.).
“ Base
Rate ” means, for any day, the higher of: (a) 0.50%
per annum above the latest Federal Funds Rate; and (b) the
rate of interest established by BNP Paribas as its prevailing
“base rate,” with each change in such rate to be
effective for purposes of this Agreement and the transactions
contemplated hereby without necessity of any action on the part of
any Person, on the day on which such change is effective, it being
understood that such rate does not and shall not necessarily
reflect the best or lowest rate of interest available to BNP
Paribas’ best or preferred commercial customers. Such rate is
a rate set by BNP Paribas based upon various factors including BNP
Paribas’ costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such
announced rate. Any change in the prime rate announced by BNP
Paribas shall take effect at the opening of business on the day
specified in the public announcement of such change.
“ Base
Rate Loan ” means a Loan that bears interest based on the
Base Rate.
“
Borrowing ” means a borrowing hereunder consisting of
Loans of the same Type made to the Company on the same day by the
Banks under Article II, and, other than in the case of Base
Rate Loans, having the same Interest Period.
-2-
“
Borrowing Date ” means any date on which a Borrowing
occurs under Section 2.3 .
“
Business Day ” means any day other than a Saturday,
Sunday or other day on which commercial banks in New York, New York
are authorized or required by law to close and, if the applicable
Business Day relates to any Offshore Rate Loan, means such a day on
which dealings are carried on in the applicable offshore dollar
interbank market.
“ Capital
Adequacy Regulation ” means any guideline, request or
directive of any central bank or other Governmental Authority, or
any other law, rule or regulation, whether or not having the force
of law, in each case, regarding capital adequacy of any bank or of
any corporation controlling a bank.
“ Change
of 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 35% or
more of the outstanding shares of voting stock of the
Company.
“ Closing
Date ” means the date that the Agent notifies the Company
and the Banks that all conditions precedent set forth in
Section 4.1 are satisfied or waived by all Banks (or,
in the case of subsection 4.1(e) , waived by the Person
entitled to receive such payment).
“
Code ” means the Internal Revenue Code of 1986, and
regulations promulgated thereunder.
“
Commitment ” as to each Bank, has the meaning
specified in Section 2.1 .
“
Commitment Termination Date ” means the earlier to
occur of:
(a)
October 15, 2005; and
(b)
the date on which the Commitments terminate in accordance with the
provisions of this Agreement.
“
Company ” has the meaning specified in the
introductory clause hereto.
“
Compliance Certificate ” means a certificate
substantially in the form of Exhibit C .
“
Contractual Obligation ” means, as to any Person, any
provision of any security issued by such Person or of any
agreement, undertaking, contract, indenture, mortgage, deed of
trust or other instrument, document or agreement to which such
Person is a party or by which it or any of its property is
bound.
“
Conversion/Continuation Date ” means any date on
which, under Section 2.4 , the Company (a) converts
Loans of one Type to another Type, or (b) continues as Loans
of
-3-
the
same Type, but with a new Interest Period, Loans having Interest
Periods expiring on such date.
“
Default ” means any event or circumstance which, with
the giving of notice, the lapse of time, or both, would (if not
cured or otherwise remedied during such time) constitute an Event
of Default.
“
Department ” means the applicable Governmental
Authority of the state of domicile of an insurance company
responsible for the regulation of said insurance
company.
“
Designated Bank ” means a special purpose corporation
that (a) shall have become a party to the Agreement pursuant
to Section 10.8(f) of the Agreement and (b) is not
otherwise a Bank.
“
Designating Bank ” means each Bank that shall
designate a Designated Bank pursuant to Section 10.8(f)
of the Agreement.
“
Designation Agreement ” means a designation agreement
in substantially the form of Exhibit G to the Credit
Agreement, entered into by a Bank and a Designated Bank and
accepted by the Company and the Agent.
“
Dollars ”, “ dollars ” and “
$ ” each mean lawful money of the United
States.
“
Eligible Assignee ” means (i) a commercial bank
organized under the laws of the United States, or any state
thereof, and having a combined capital and surplus of at least
$100,000,000; (ii) a commercial bank organized under the laws
of any other country which is a member of the Organization for
Economic Cooperation and Development (the “OECD”), or a
political subdivision of any such country, and having a combined
capital and surplus of at least $100,000,000, provided that such
bank is acting through a branch or agency located in the country in
which it is organized or another country which is also a member of
the OECD; and (iii) a Person that is primarily engaged in the
business of commercial banking and that is (A) a Subsidiary of
a Bank, (B) a Subsidiary of a Person of which a Bank is a
Subsidiary, or (C) a Person of which a Bank is a
Subsidiary.
“
Environmental Claims ” means all claims, however
asserted, by any Governmental Authority or other Person alleging
potential liability or responsibility for violation of any
Environmental Law, or for release or injury to the
environment.
“
Environmental Laws ” means all federal, state or local
laws, statutes, common law duties, rules, regulations, ordinances
and codes, together with all administrative orders, directed
duties, requests, licenses, authorizations and permits of, and
agreements with, any Governmental Authorities, in each case
relating to environmental matters.
“
ERISA ” means the Employee Retirement Income Security
Act of 1974, and regulations promulgated thereunder.
-4-
“ ERISA
Affiliate ” means any trade or business (whether or not
incorporated) under common control with the Company within the
meaning of Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of provisions relating
to Section 412 of the Code).
“ ERISA
Event ” means (a) a Reportable Event with respect to
a Pension Plan; (b) a withdrawal by the Company or any ERISA
Affiliate from a Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as
defined in Section 4001(a)(2) of ERISA) or a cessation of
operations which is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the
Company or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization;
(d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under
Section 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which might
reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability
under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Company or
any ERISA Affiliate.
“
Eurodollar Reserve Percentage ” has the meaning
specified in the definition of “Offshore
Rate.”
“ Event
of Default ” means any of the events or circumstances
specified in Section 8.1 .
“
Exchange Act ” means the Securities and Exchange Act
of 1934, and regulations promulgated thereunder.
“
Existing Notes ” means the Company’s 7
1 / 2
% Senior Notes due October 15,
2005.
“
FDIC ” means the Federal Deposit Insurance
Corporation, and any Governmental Authority succeeding to any of
its principal functions.
“ Federal
Funds Rate ” means, for any day, the rate per annum
(rounded upwards to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds
brokers on such day, as published by the Federal Reserve Bank on
the Business Day next succeeding such day; provided that
(a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding
Business Day, and (b) if such rate is not so published for any
day that is a Business Day, the average of the quotations for such
day for such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by it.
-5-
“ FRB
” means the Board of Governors of the Federal Reserve System,
and any Governmental Authority succeeding to any of its principal
functions.
“
GAAP ” means generally accepted accounting principles
set forth from time to time in the opinions and pronouncements of
the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board (or agencies with similar
functions of comparable stature and authority within the U.S.
accounting profession), which are applicable to the circumstances
as of the date of determination.
“
Governmental Authority ” means any nation or
government, any state or other political subdivision thereof, any
central bank (or similar monetary or regulatory authority) thereof,
any entity exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
“
Guaranty Obligation ” means, as to any Person, without
duplication, any direct or indirect liability of that Person,
whether or not contingent, with or without recourse (but excluding
any such liability to the Company or any Affiliate of the Company),
Indebtedness, lease or letter of credit (the “ primary
obligations ”) of another Person (the “ primary
obligor ”), including any obligation of that Person
(i) to purchase, repurchase or otherwise acquire such primary
obligations or any security therefor, (ii) to advance or
provide funds for the payment or discharge of any such primary
obligation, or to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency
or any balance sheet item, level of income or financial condition
of the primary obligor, (iii) to purchase property, securities
or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to
make payment of such primary obligation, or (iv) otherwise to
assure or hold harmless the holder of any such primary obligation
against loss in respect thereof. The amount of any Guaranty
Obligation shall be deemed equal to the lesser of (i) the
stated or determinable amount of the primary obligation in respect
of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in
respect thereof, and (ii) the stated maximum amount of such
Guaranty Obligation.
“
Indebtedness ” of any Person means, without
duplication, (a) the principal amount of all indebtedness for
borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services
(other than trade and similar accounts payable and accrued expenses
entered into in the ordinary course of business employee
compensation and pension obligations, and other similar
obligations, obligations in respect of trade letters of credit,
obligations in respect of earnout and holdbacks and obligations in
respect of customer advances received in the ordinary course of
business); (c) all non-contingent reimbursement or payment
obligations with respect to Surety Instruments; (d) the
principal amount of all obligations evidenced by notes, bonds,
debentures or similar instruments, including obligations so
evidenced
-6-
incurred in connection with the acquisition of
property, assets or businesses; (e) the principal amount of
all indebtedness created or arising under any conditional sale or
other title retention agreement (excluding operating leases), or
incurred as financing, in either case with respect to property
acquired by the Person (even though the rights and remedies of the
seller or bank under such agreement in the event of default are
limited to repossession or sale of such property); (f) all
obligations with respect to capital leases; (g) all net
obligations with respect to Swap Contracts; (h) the principal
amount of all indebtedness referred to in clauses (a) through
(g) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property (including accounts and
contracts rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Indebtedness;
and (i) all Guaranty Obligations in respect of indebtedness or
obligations of others of the kinds referred to in clauses
(a) through (g) above. The amount of any obligation
characterized as Indebtedness of any Person by reason of clause
(h) of this definition but which has not been assumed by such
Person shall be deemed equal to the lesser of (i) the stated
or determinable amount of the primary obligation secured (or
subject to a right to be secured by) by the Lien referred to in
such clause or, if not stated or if indeterminable, the maximum
reasonably anticipated liability in respect thereof and
(ii) the fair market value of the property subject (or which
may become subject) to such Lien. For purposes of determining the
amount of any Indebtedness outstanding for any purpose of this
Agreement, there shall be no double-counting of any primary
obligation and any other Indebtedness arising by reason of such
primary obligation by operation of clause (h) or (i) of
this definition. Notwithstanding the foregoing, the term
“Indebtedness” shall not include any obligations of the
Company or any of its Subsidiaries owing to the Company or any of
its Subsidiaries.
“
Indemnified Liabilities ” has the meaning specified in
Section 10.5 .
“
Indemnified Person ” has the meaning specified in
Section 10.5 .
“
Independent Auditor ” has the meaning specified in
subsection 6.1(a) .
“
Insolvency Proceeding ” means (a) any case,
action or proceeding before any court or other Governmental
Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of
debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors, or
other, similar arrangement in respect of its creditors generally or
any substantial portion of its creditors, undertaken under U.S.
Federal, state or foreign law, including the Bankruptcy
Code.
“
Insurance Code ” means, with respect to any insurance
company, the insurance code of its state of domicile and any
successor statute of similar import, together with the regulations
thereunder, as amended or otherwise modified and in effect from
time to time. References to sections of the Insurance Code shall be
construed to also refer to successor sections.
-7-
“
Interest Payment Date ” means, as to any Offshore Rate
Loan, the last day of each Interest Period applicable to such Loan
(or quarterly, if earlier) and, as to any Base Rate Loan, quarterly
on the last Business Day of each of March, June, September and
December.
“
Interest Period ” means, as to any Offshore Rate Loan,
the period commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Loan, and ending on the date one,
two, three or six months thereafter as selected by the Company in
its Notice of Borrowing or Notice of Conversion/Continuation (or on
such other date as all of the Banks may agree); provided
that:
(i)
if any Interest Period would otherwise end on a day that is not a
Business Day, that Interest Period shall be extended to the
following Business Day unless, in the case of an Offshore Rate
Loan, the result of such extension would be to carry such Interest
Period into another calendar month, in which event such Interest
Period shall end on the preceding Business Day;
(ii)
any Interest Period pertaining to an Offshore Rate Loan that begins
on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last Business Day
of the calendar month at the end of such Interest Period;
and
(iii)
no Interest Period shall extend beyond the Maturity
Date.
“ IRS
” means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the
Code.
“ Joint
Venture ” means a single-purpose corporation,
partnership, joint venture or other similar legal arrangement which
is not a Subsidiary (whether created by contract or conducted
through a separate legal entity) now or hereafter formed by the
Company or any of its Subsidiaries with another Person in order to
conduct a common venture or enterprise with such Person and in
which the Company or any of its Subsidiaries is an “equity
method investor”.
“ Lending
Office ” means, as to any Bank, the office or offices of
such Bank specified as its “Lending Office” or
“Domestic Lending Office” or “Offshore Lending
Office”, as the case may be, on Schedule 10.2 ,
or such other office or offices as such Bank may from time to time
notify the Company and the Agent.
“
Lien ” means any security interest, mortgage, deed of
trust, pledge, hypothecation, assignment for security, charge or
deposit arrangement for collateral purposes, encumbrance, lien
(statutory or other) or consensual preferential arrangement of any
kind or nature whatsoever in respect of any property (including
those created by, arising under or evidenced by any conditional
sale or other title retention agreement, the interest of a lessor
under a capital lease, any financing lease having substantially the
same
-8-
economic effect as any of the foregoing, and any
contingent or other agreement to provide any of the foregoing, but
not including the interest of a lessor under an operating
lease.
“
Loan ” means an extension of credit by a Bank to the
Company under Article II, and may be a Base Rate Loan or an
Offshore Rate Loan (each, a “ Type ” of
Loan).
“ Loan
Documents ” means this Agreement and any
Notes.
“
Majority Banks ” means at any time Banks then holding
in excess of 50% of the then aggregate unpaid principal amount of
the Loans, or, if no such principal amount is then outstanding,
Banks then having in excess of 50% of the Commitments.
“
Maturity Date ” means the first anniversary of the
initial borrowing hereunder or, if such anniversary is not a
Business Day, then the Maturity Date shall be the Business Day most
immediately preceding such anniversary.
“ Margin
Stock ” means “margin stock” as such term is
defined in Regulation T, U or X of the FRB.
“
Material Adverse Effect ” means (a) a material
adverse change in, or a material adverse effect upon, the business,
liabilities, financial position or results of operations of the
Company and its Subsidiaries taken as a whole; (b) a material
impairment of the ability of the Company to perform its obligations
under any Loan Document; or (c) a material adverse effect upon
the legality, validity, binding effect or enforceability against
the Company of any Loan Document; provided , however
, that the repurchase by the Company of Company common stock shall
not be considered to be a Material Adverse Effect so long as such
repurchase does not give rise to a Default or an Event of
Default.
“
Material Debt ” of any Person means, without
duplication, all indebtedness for borrowed money and all
obligations evidenced by notes, bonds, debentures or similar
instruments having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all
creditors under any combined or syndicated credit arrangement) in
excess of the greater of $200,000,000 and 5% of the tangible net
worth of such person. Notwithstanding the foregoing, the term
“Material Debt” shall not include any obligations of
the Company or any of its Subsidiaries owing to the Company or any
of its Subsidiaries.
“
MGIC ” means Mortgage Guaranty Insurance Corporation,
a Wisconsin stock insurance corporation.
“
Multiemployer Plan ” means a “multiemployer
plan”, within the meaning of Section 4001(a)(3) of
ERISA, to which the Company or any ERISA Affiliate makes, is
making, or is obligated to make contributions or, during the
preceding three calendar years, has made, or been obligated to
make, contributions.
-9-
“
NAIC ” means the National Association of Insurance
Commissioners or any successor thereto.
“
Note ” means a promissory note executed by the Company
in favor of a Bank pursuant to subsection 2.2(b), in substantially
the form of Exhibit F .
“ Notice
of Borrowing ” means a notice in substantially the form
of Exhibit A .
“ Notice
of Conversion/Continuation ” means a notice in
substantially the form of Exhibit B .
“
Obligations ” means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document
owing by the Company to any Bank, the Agent, or any Indemnified
Person, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now
existing or hereafter arising.
“
Offshore Rate ” means, for any Interest Period, with
respect to Offshore Rate Loans comprising part of the same
Borrowing, the rate of interest per annum (rounded upward to the
next 1/100th of 1%) determined by the Agent pursuant to the
following formula:
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Offshore Base Rate
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1.00 - Eurodollar Reserve
Percentage
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Where,
“
Offshore Base Rate ” means, for such Interest
Period:
(x)
the rate per annum (rounded upward, if necessary, to the higher
1/16th of one percent) equal to the rate determined by the Agent to
be the offered rate that appears on the page of the Telerate Screen
that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first
day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such
Interest Period, or
(y)
in the event the rate referenced in the preceding subsection
(x) does not appear on such page or service or such page or
service shall cease to be available, the rate per annum (carried
out to the fifth decimal place) equal to the rate determined by the
Agent to be the offered rate on such other page or other service
that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first
day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such
Interest Period, or
-10-
(z)
in the event the rates referenced in the preceding subsections
(x) and (y) are not available, the rate per annum determined
by the Agent as the rate of interest at which Dollar deposits (for
delivery on the first day of such Interest Period) in same day
funds in the approximate amount of the applicable Offshore Rate
Loan and with a term equivalent to such Interest Period would be
offered by its London Branch to major banks in the offshore Dollar
market at their request at approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest
Period.
“
Eurodollar Reserve Percentage ” means, for any day
during any Interest Period, the reserve percentage (expressed as a
decimal, rounded upward to the next 1/100th of 1%) in effect on
such day, whether or not applicable to any Lender, under
regulations issued from time to time by the Board of Governors of
the Federal Reserve System for determining the maximum reserve
requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding
(currently referred to as “ Eurocurrency liabilities
”). The Offshore Rate for each outstanding Offshore Rate Loan
shall be adjusted automatically as of the effective date of any
change in the Eurodollar Reserve Percentage.
The
determination of the Eurodollar Reserve Percentage and the Offshore
Base Rate by the Agent shall be conclusive in the absence of
manifest error.
“
Offshore Rate Loan ” means a Loan that bears interest
based on the Offshore Rate.
“
Organization Documents ” means, for any corporation,
the certificate or articles of incorporation, the bylaws, any
certificate of determination or instrument relating to the rights
of preferred shareholders of such corporation, any shareholder
rights agreement, and all applicable resolutions of the board of
directors (or any committee thereof) of such
corporation.
“
Other Taxes ” means any present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from
the execution, delivery or registration of, or otherwise with
respect to, this Agreement or any other Loan Documents, but not
including taxes on or taxes measured by income or any franchise
taxes imposed in lieu of income taxes.
“
Participant ” has the meaning specified in
subsection 10.8(d) .
“
PBGC ” means the Pension Benefit Guaranty Corporation,
or any Governmental Authority succeeding to any of its principal
functions under ERISA.
“
Pension Plan ” means a pension plan (as defined in
Section 3(2) of ERISA) subject to Title IV of ERISA which the
Company sponsors, maintains, or to which it makes, is making, or is
obligated to make contributions, or in the case of a multiple
employer plan (as described in Section 4064(a) of ERISA) has made
contributions at any time during the immediately preceding five
(5) plan years.
-11-
“
Permitted Liens ” has the meaning specified in
Section 7.1 .
“
Person ” means an individual, partnership,
corporation, limited liability company, business trust, joint stock
company, trust, unincorporated association, joint venture or
Governmental Authority.
“
Plan ” means an employee benefit plan (as defined in
Section 3(3) of ERISA) which the Company sponsors or maintains
or to which the Company makes, is making, or is obligated to make
contributions and includes any Pension Plan.
“ Pro
Rata Share ” means, as to any Bank at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth
decimal place) at such time of such Bank’s Commitment divided
by the combined Commitments of all Banks.
“
Replacement Bank ” has the meaning specified in
Section 3.6 .
“
Reportable Event ” means, any of the events set forth
in Section 4043(b) of ERISA or the regulations thereunder, other
than any such event for which the 30-day notice requirement under
ERISA has been waived in regulations issued by the PBGC.
“
Requirement of Law ” means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination
of an arbitrator or of a Governmental Authority, in each case
applicable to or binding upon the Person or any of its property or
to which the Person or any of its property is subject.
“
Responsible Officer ” means, as to the Company or any
Subsidiary, the chief executive officer, the president, any senior
vice president or any executive vice president of the Company or
such Subsidiary, as the case may be, or any other officer having
substantially the same authority and responsibility; or, with
respect to compliance with financial covenants, the chief financial
officer, chief accounting officer, treasurer or any assistant
treasurer of the Company or such Subsidiary, as the case may be, or
any other officer having substantially the same authority and
responsibility.
“ SAP
” means, as to any insurance company, the statutory
accounting practices prescribed or permitted by the
Department.
“ SEC
” means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal
functions.
“
Significant Insurance Subsidiary ” means, at any time,
MGIC and any other Subsidiary engaged primarily in the business of
insurance having at such time total assets in excess of 20% of
total consolidated assets based upon the Company’s most
recent annual or quarterly financial statements delivered to the
Agent under Section 6.1.
“
Significant Subsidiary ” means, at any time, MGIC and
any other Subsidiary having at such time total
(gross) revenues for the preceding four fiscal quarter periods
in excess of the greater of $100,000,000 and 10% of consolidated
gross revenues based
-12-
upon
the Company’s most recent annual or quarterly financial
statements delivered to the Agent under Section 6.1;
provided , that MGIC Investor Services Corporation (or any
successor thereto) shall not be deemed a Significant Subsidiary so
long as it has total (gross) revenues for the preceding four fiscal
quarter periods not in excess of $200,000,000.
“
Subsidiary ” of a Person means any corporation,
association, partnership, joint venture or other business entity of
which more than 50% of the voting stock or other equity interests
(in the case of Persons other than corporations), is owned or
controlled directly or indirectly by the Person, or one or more of
the Subsidiaries of the Person, or a combination thereof (such 50%
threshold is herein referred to as the “50%
Threshold”), provided , however that
Credit-Based Asset Servicing and Securitization LLC, and Sherman
Financial Group LLC and any successors thereto, and any other joint
venture in which the Company or any of its Affiliates is a party if
the interests of such Person in such joint venture do not on the
Closing Date satisfy the 50% Threshold, shall not become
Subsidiaries as a result of the acquisition of interests therein
from members of the management of such Persons if the interests so
acquired that would, but for this exception, result in such Person
being a Subsidiary under the foregoing definition do not exceed 10%
of the interests in the entity. Any Person identified in
Schedule 1.1 by the Company shall not be deemed a
“Subsidiary” of the Company if (a) the Company
owns more than 50% but less than 100% of the voting stock or other
equity interests (in the case of Persons other than corporations)
therein and (b) the total investment (either by capital
contribution, loan, advance or otherwise but excluding any increase
in such investment as a result of the recognition of earnings from
a Person identified on such Schedule) by the Company and its
Subsidiaries in all such Persons shall not at any time exceed the
greater of $300,000,000 and 10% of the Company’s shareholders
equity. The Company may amend Schedule 1.1 from time to
time upon notice to the Agent. Unless the context otherwise clearly
requires, references here in to a “Subsidiary” refer to
a Subsidiary of the Company.
“ Surety
Instruments ” means all letters of credit (including
standby and commercial), banker’s acceptances, bank
guaranties, shipside bonds, surety bonds and similar
instruments.
“ Swap
Contract ” means any agreement (including any master
agreement and any agreement, whether or not in writing, relating to
any single transaction) that is an interest rate swap agreement,
basis swap, forward rate agreement, commodity swap, commodity
option, equity or equity index swap or option, bond option,
interest rate option, forward foreign exchange agreement, rate cap,
collar or floor agreement, currency swap agreement, cross-currency
rate swap agreement, swaption, currency option or any other,
similar agreement (including any option to enter into any of the
foregoing).
“
Taxes ” means any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each
Bank and the Agent, fines, penalties, interest and additions to tax
arising from the action or inaction of such Bank or Agent and such
taxes (including income taxes or
-13-
franchise taxes) as are imposed on or measured
by each Bank’s net income by the jurisdiction (or any
political subdivision thereof) under the laws of which such Bank or
the Agent, as the case may be, is or was organized, maintains or
maintained a lending office or would be subject to taxation if this
Agreement were not in effect.
“
Type ” has the meaning specified in the definition of
“Loan.”
“
Unfunded Pension Liability ” means the excess of a
Plan’s benefit liabilities under Section 4001(a)(16) of
ERISA, over the current value of that Plan’s assets,
determined in accordance with the assumptions used for funding the
Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
“ United
States ” and “ U.S. ” each means the
United States of America.
“
Wholly-Owned Subsidiary ” means any corporation in
which (other than directors’ qualifying shares required by
law) 100% of the capital stock of each class having ordinary voting
power, and 100% of the capital stock of every other class, in each
case, at the time as of which any determination is being made, is
owned, beneficially and of record, by the Company, or by one or
more of the other Wholly-Owned Subsidiaries, or both.
1.2
Other Interpretive Provisions
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(a)
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The
meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
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(b)
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The
words “hereof”, “herein”,
“hereunder” and similar words refer to this Agreement
as a whole and not to any particular provision of this Agreement;
and subsection, Section, Schedule and Exhibit references are to
this Agreement unless otherwise specified.
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(c)
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(i) The term
“documents” includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
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(ii)
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The
term “including” is not limiting and means
“including without limitation.”
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(iii)
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In
the computation of periods of time from a specified date to a later
specified date, the word “from” means “from and
including”; the words “to” and
“until” each mean “to but excluding”, and
the word “through” means “to and
including.”
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(d)
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Unless otherwise expressly provided
herein, (i) references to agreements (including this
Agreement) and other contractual instruments shall be deemed to
include all subsequent amendments and other modifications thereto,
but only to the extent such amendments and other modifications are
not prohibited by the terms of any Loan Document, and (ii)
references to any statute or regulation are to be construed as
including all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting the statute or
regulation.
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(e)
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The
captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this
Agreement.
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(f)
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This Agreement and other Loan
Documents may use several different limitations, tests or
measurements to regulate the same or similar matters. All such
limitations, tests and measurements are cumulative and shall each
be performed in accordance with their terms.
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(g)
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This Agreement and the other Loan
Documents are the result of negotiations among and have been
reviewed by counsel to the Agent, the Company and the other
parties, and are the products of all parties. Accordingly, they
shall not be construed against the Banks or the Agent merely
because of the Agent’s or Banks’ involvement in their
preparation.
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1.3
Accounting Principles
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(a)
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Unless the context otherwise clearly
requires, all accounting terms not expressly defined herein shall
be construed, and all financial computations required under this
Agreement shall be made, in accordance with GAAP (excluding the
effect of FIN 46 issued by the Financial Accounting Standards
Board), consistently applied, except as otherwise required or
permitted by GAAP, or with respect to any financial statements of
any insurance company, in accordance with SAP; provided ,
however , that if at any time any change in GAAP would
affect the computation of the covenant set forth in
Section 7.8(a) and the Company or the Majority Banks shall so
request, the Agent and the Company shall negotiate in good faith to
amend such covenant (with the consent of the Majority Banks) to
preserve the original intent thereof, provided that prior to
such amendment such covenant shall be calculated in accordance with
GAAP prior to such change.
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(b)
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References herein to “fiscal
year” and “fiscal quarter” refer to such fiscal
periods of the Company.
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ARTICLE II
THE CREDITS
2.1
Amounts and Terms of Commitments . Each Bank severally
agrees, on the terms and conditions set forth herein, to make Loans
to the Company from time to time on any Business Day during the
period from the Closing Date to the Commitment Termination Date, in
an aggregate amount not to exceed at any time outstanding the
amount set forth on Schedule 2.1 (such amount, as the same may
be reduced under Section 2.5 or as a result of one or more
assignments under Section 10.8 , the Bank’s
“ Commitment ”); provided ,
however , that, after giving effect to any Borrowing, the
aggregate principal amount of all outstanding Loans shall not at
any time exceed the combined Commitments. Within the limits of each
Bank’s Commitment, and subject to the other terms and
conditions hereof, the Company may borrow under this
Section 2.1 , prepay under Section 2.6 and
reborrow under this Section 2.1 .
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2.2
Loan Accounts .
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(a)
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The
Loans made by each Bank shall be evidenced by one or more loan
accounts or records maintained by such Bank in the ordinary course
of business. The loan accounts or records maintained by the Agent
and each Bank shall be conclusive absent manifest error of the
amount of the Loans made by the Banks to the Company and the
interest and payments thereon. Any failure so to record or any
error in doing so shall not, however, limit or otherwise affect the
obligation of the Company hereunder to pay any amount owing with
respect to the Loans.
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(b)
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Upon the request of any Bank made
through the Agent, the Loans made by such Bank may be evidenced by
one or more Notes, instead of loan accounts. Each such Bank shall
endorse on the schedules annexed to its Note(s) the date, amount
and maturity of each Loan made by it and the amount of each payment
of principal made by the Company with respect thereto. Each such
Bank is irrevocably authorized by the Company to endorse its
Note(s) and each Bank’s record shall be conclusive absent
manifest error; provided, however, that the failure of a Bank to
make, or an error in making, a notation thereon with respect to any
Loan shall not limit or otherwise affect the obligations of the
Company hereunder or under any such Note to such Bank.
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2.3
Procedure for Borrowing .
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(a)
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Each Borrowing shall be made upon
the Company’s irrevocable written notice delivered to the
Agent in the form of a Notice of Borrowing, or (except for the
initial borrowing) the Company’s telephonic notice to the
Agent, to be immediately confirmed in writing. Any such notice must
be received by the Agent prior to 11:00 a.m. New York time
(i) three Business Days prior to the requested Borrowing Date,
in the case of Offshore Rate Loans, and (ii) on the requested
Borrowing Date, in the case of Base Rate Loans,
specifying:
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(A)
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the
amount of the Borrowing, which shall be in an aggregate minimum
amount of $50,000,000 or any multiple of $1,000,000 in excess
thereof;
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(B)
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the
requested Borrowing Date, which shall be a Business Day;
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(C)
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the
Type of Loans comprising the Borrowing; and
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(D)
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with respect to Offshore Rate Loans,
the duration of the Interest Period applicable to such Loans
included in such notice. If the Notice of Borrowing fails to
specify the duration of the Interest Period for any Borrowing
comprised of Offshore Rate Loans, such Interest Period shall be
three months.
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(b)
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The
Agent will promptly notify each Bank of its receipt of any Notice
of Borrowing and of the amount of such Bank’s Pro Rata Share
of that Borrowing.
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(c)
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Each Bank will make the amount of
its Pro Rata Share of each Borrowing available to the Agent for the
account of the Company at the Agent’s Payment Office by 1:00
(New York
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time)
on the Borrowing Date requested by the Company in funds immediately
available to the Agent. The proceeds of all such Loans will then be
made available to the Company by the Agent at such office by
crediting the account of the Company on the books of BNP Paribas
with the aggregate of the amounts made available to the Agent by
the Banks and in immediately available funds.
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(d)
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After giving effect to any
Borrowing, there may not be more than twelve different Interest
Periods in effect.
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2.4
Conversion and Continuation Elections .
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(a)
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The
Company may, upon irrevocable written notice to the Agent in
accordance with subsection 2.4(b) :
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(i)
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elect, as of any Business Day, in
the case of Base Rate Loans, or as of the last day of the
applicable Interest Period, in the case of Offshore Rate Loans, to
convert any such Loans (or any part thereof in an amount not less
than $5,000,000, or that is in an integral multiple of $1,000,000
in excess thereof) into Loans of the other Type; or
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(ii)
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elect, as of the last day of the
applicable Interest Period, to continue any Loans having Interest
Periods expiring on such day (or any part thereof in an amount not
less than $10,000,000, or that is in an integral multiple of
$1,000,000 in excess thereof);
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provided
, that if at any time the aggregate
amount of Offshore Rate Loans in respect of any Borrowing is
reduced, by payment, prepayment, or conversion of part thereof to
be less than $10,000,000, such Offshore Rate Loans shall
automatically convert into Base Rate Loans.
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(b)
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The
Company shall deliver a Notice of Conversion/Continuation to be
received by the Agent not later than 11:00 a.m. (New York
time) at least (i) three Business Days in advance of the
Conversion/Continuation Date, if the Loans are to be converted into
or continued as Offshore Rate Loans; and (ii) on the
Conversion/Continuation Date, if the Loans are to be converted into
Base Rate Loans, specifying:
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(A)
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the
proposed Conversion/Continuation Date;
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(B)
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the
aggregate amount of Loans to be converted or continued;
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(C)
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the
Type of Loans resulting from the proposed conversion or
continuation; and
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(D)
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in
the case of continuation of, or conversion into, Offshore Rate
Loans, the duration of the requested Interest Period.
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(c)
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If
upon the expiration of any Interest Period for Offshore Rate Loans,
the Company has failed to select timely a new Interest Period to be
applicable to such Offshore Rate Loans, the Company shall be deemed
to have selected a one month Interest Period for such Offshore Rate
Loan.
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(d)
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If
upon the expiration of any Interest Period for Offshore Rate Loans,
any Default then exists, the Company shall be deemed to have
elected to convert such Offshore Rate Loans into Base Rate Loans
effective as of the expiration date of such Interest
Period.
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(e)
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The
Agent will promptly notify each Bank of its receipt of a Notice of
Conversion/Continuation, or, if no timely notice is provided by the
Company, the Agent will promptly notify each Bank of the details of
any automatic conversion. All conversions and continuations shall
be made ratably according to the respective outstanding principal
amounts of the Loans with respect to which the notice was given
held by each Bank.
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(f)
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Unless the Majority Banks otherwise
agree, during the existence of a Default or Event of Default, the
Company may not elect to have a Loan converted into or continued as
an Offshore Rate Loan.
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(g)
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After giving effect to any
conversion or continuation of Loans, there may not be more than
twelve different Interest Periods in effect.
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2.5
Termination or Reduction of Commitments . Unless, after
giving effect thereto and to any prepayments of Loans made on the
effective date thereof, the then-outstanding principal amount of
the Loans would exceed the amount of the combined Commitments then
in effect, the Company may, upon not less than three Business
Days’ prior notice to the Agent, terminate the Commitments,
or permanently reduce the Commitments by an aggregate minimum
amount of $10,000,000 or any multiple of $1,000,000 in excess
thereof. If the Company pays, prepays, defeases or redeems all or
any portion of the Existing Notes other than with the proceeds of
Loans, it shall forthwith notify the Agent of such event; and upon
receipt by the Agent of such notice the Commitments shall
automatically be reduced by the aggregate principal amount of the
Existing Notes so paid, prepaid or redeemed or if the Existing
Notes are so paid in full the Commitments hereunder shall be
terminated. Once reduced in accordance with this Section, the
Commitments may not be increased. Any reduction of the Commitments
shall be applied to each Bank according to its Pro Rata Share. All
accrued facility fees to, but not including the effective date of
any reduction or termination of Commitments, shall be paid on the
effective date of such reduction or termination. Each notice of a
termination or reduction of Commitments shall be irrevocable,
except that a notice of termination of the Commitments may state
that such notice is conditioned upon the effectiveness of other
credit facilities, in which case such notice may be revoked by the
Company (by notice to the Agent on or prior to the specified
effective date) if such condition is not satisfied.
2.6
Optional Prepayments . Subject to Section 3.4, the
Company may, at any time or from time to time, upon notice to the
Agent received not later than 11:00 a.m. (New York time) on
the date of prepayment (in the case of Base Rate Loans) or three
Business Days’ irrevocable notice to the Agent (in the case
of Offshore Rate Loans), ratably prepay Loans in whole or in part,
in minimum amounts of $5,000,000 or any multiple of $1,000,000 in
excess thereof. Such notice of prepayment shall specify the date
and amount of such prepayment and the Type(s) of Loans to be
prepaid. The Agent will promptly notify each Bank of its receipt of
any such notice, and of
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such Bank’s Pro Rata Share
of such prepayment. Each notice of prepayment shall be irrevocable,
except that if a notice of prepayment is given in connection with a
conditional notice of termination of the Commitments as
contemplated by Section 2.5, then such notice of prepayment
may be revoked if such notice of termination is revoked in
accordance with Section 2.5. If such notice is given by the
Company and not revoked as aforesaid, the Company shall make such
prepayment and the payment amount specified in such notice shall be
due and payable on the date specified therein, together with
accrued interest to each such date on the amount prepaid (except
for amounts prepaid on Base Rate Loans) and any amounts required
pursuant to Section 3.4.
2.7
Mandatory Prepayments . If the Company finances or
refinances the payment, prepayment or redemption of all of any
portion of the Existing Notes with the proceeds of Indebtedness
(other than the Loans) incurred after the maturity date of the
Existing Notes, it shall forthwith notify the Agent of such event
and prepay the Loans in an aggregate principal amount equal to the
amount of such proceeds used for such purpose.
2.8
Repayment . The Company shall repay to the Banks on the
Maturity Date the aggregate principal amount of Loans outstanding
on such date.
2.9
Interest .
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(a)
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Each Loan shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing
Date at a rate per annum equal to the Offshore Rate or the Base
Rate, as the case may be (and subject to the Company’s right
to convert to other Types of Loans under Section 2.4 ),
plus the Applicable Margin.
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(b)
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Interest on each Loan shall be paid
in arrears on each Interest Payment Date. Interest shall also be
paid upon payment in full thereof and, during the existence of any
Event of Default, interest shall be paid on demand of the Agent at
the request or with the consent of the Majority Banks.
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(c)
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Notwithstanding subsection
(a) of this Section, while any Event of Default exists or
after acceleration, the Company shall, if requested by the Majority
Banks, pay interest (after as well as before entry of judgment
thereon to the extent permitted by law) on the principal amount of
all outstanding Loans, at a rate per annum which is determined by
adding 2.00% per annum to the applicable rate then in effect for
such Loans (as determined pursuant to clause (a) above);
provided , however , that, on and after the
expiration of any Interest Period applicable to any Offshore Rate
Loan outstanding on the date of occurrence of such Event of Default
or acceleration, the principal amount of such Loan shall, if
requested by the Majority Banks, during the continuation of such
Event of Default or after acceleration, bear interest at a rate per
annum equal to the Base Rate plus 2.00%.
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(d)
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Anything herein to the contrary
notwithstanding, the obligations of the Company to any Bank
hereunder shall be subject to the limitation that payments of
interest shall not be required for any period for which interest is
computed hereunder, to the extent (but only to the extent) that
contracting for or receiving such payment by such Bank would
be
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contrary to the provisions of any law applicable
to such Bank limiting the highest rate of interest that may be
lawfully contracted for, charged or received by such Bank, and in
such event the Company shall pay such Bank interest at the highest
rate permitted by applicable law.
2.10 Commitment
Fees .
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(a)
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If
the Company makes any borrowing hereunder, the Company shall pay to
the Agent for the account of each Bank a commitment fee on the
average daily unused amount of such Bank’s Commitment,
computed on a quarterly basis in arrears on the last Business Day
of each calendar quarter, at the rate of 0.07% per annum. Such
commitment fee shall accrue from the date of the initial borrowing
hereunder to the Commitment Termination Date and shall be due and
payable quarterly in arrears on the last Business Day of each of
March, June, September and December, with the final payment to be
made on the Commitment Termination Date. The commitment fees
provided in this subsection shall accrue at all times after the
above-mentioned commencement date, including at any time during
which one or more conditions in Article IV are not
met.
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2.11
Computation of Fees and Interest .
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(a)
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All
computations of interest in respect of Base Rate Loans based on BNP
Paribas’ “base rate” shall be made by the Agent
on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual
days elapsed (which results in more interest being paid than if
computed on the basis of a 365-day year). Interest and fees shall
accrue during each period during which interest or such fees are
computed from the first day thereof to the last day
thereof.
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(b)
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Each determination of an interest
rate by the Agent shall be conclusive and binding on the Company
and the Banks in the absence of manifest error.
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2.12 Payments
by the Company .
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(a)
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All
payments to be made by the Company shall be made without set-off,
recoupment or counterclaim. Except as otherwise expressly provided
herein, all payments by the Company shall be made to the Agent for
the account of the Banks at the Agent’s Payment Office, and
shall be made in dollars and in immediately available funds, no
later than 2:00 p.m. (New York time) on the date specified herein.
The Agent will promptly distribute to each Bank its Pro Rata Share
(or other applicable share as expressly provided herein) of such
payment in like funds as received. Any payment received by the
Agent later than 2:00 p.m. (New York time) shall be deemed to have
been received on the following Business Day and any applicable
interest or fee shall continue to accrue.
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(b)
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Subject to the provisions set forth
in the definition of “Interest Period” herein, whenever
any payment is due on a day other than a Business Day, such payment
shall be made on the following Business Day, and such extension of
time shall in such case be included in the computation of interest
or fees, as the case may be.
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(c)
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Unless the Agent receives notice
from the Company prior to the date on which any payment is due to
the Banks that the Company will not make such payment in full as
and when required, the Agent may assume that the Company has made
such payment in full to the Agent on such date in immediately
available funds and the Agent may (but shall not be so required),
in reliance upon such assumption, distribute to each Bank on such
due date an amount equal to the amount then due such Bank. If and
to the extent the Company has not made such payment in full to the
Agent, each Bank shall repay to the Agent on demand such amount
distributed to such Bank, together with interest thereon at the
Federal Funds Rate for each day from the date such amount is
distributed to such Bank until the date repaid.
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2.13 Payments
by the Banks to the Agent .
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(a)
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Unless the Agent receives notice
from a Bank on or prior to the Closing Date or, with respect to any
Borrowing after the Closing Date, on or prior to the date of such
Borrowing, that such Bank will not make available as and when
required hereunder to the Agent for the account of the Company the
amount of that Bank’s Pro Rata Share of the Borrowing, the
Agent may assume that each Bank has made such amount available to
the Agent in immediately available funds on the Borrowing Date and
the Agent may (but shall not be so required), in reliance upon such
assumption, make available to the Company on such date a
corresponding amount. If and to the extent any Bank shall not have
made its full amount available to the Agent in immediately
available funds and the Agent in such circumstances has made
available to the Company such amount, that Bank shall on the
Business Day following such Borrowing Date make such amount
available to the Agent, together with interest at the Federal Funds
Rate for each day during such period. A notice of the Agent
submitted to any Bank with respect to amounts owing under this
subsection (a) shall be conclusive, absent manifest error. If
such amount is so made available, such payment to the Agent shall
constitute such Bank’s Loan on the date of Borrowing for all
purposes of this Agreement. If such amount is not made available to
the Agent on the Business Day following the Borrowing Date, the
Agent will notify the Company of such failure to fund and, upon
demand by the Agent, the Company shall pay such amount to the Agent
for the Agent’s account, together with interest thereon for
each day elapsed since the date of such Borrowing, at a rate per
annum equal to the interest rate applicable at the time to the
Loans comprising such Borrowing; provided , however ,
that the Agent may, solely at its option, make available a Loan to
the Company in an amount not to exceed the Pro Rata Share of such
Bank and such Loan shall be payable to the Agent.
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(b)
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The
failure of any Bank to make any Loan on any Borrowing Date shall
not relieve any other Bank of any obligation hereunder to make a
Loan on such Borrowing Date, but no Bank shall be responsible for
the failure of any other Bank to make the Loan to be made by such
other Bank on any Borrowing Date.
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2.14 Sharing of
Payments, Etc. If, other than as expressly provided elsewhere
herein, any Bank shall obtain on account of the Loans made by it
any payment (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) in excess of its Pro
Rata
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Share, such Bank shall
immediately (a) notify the Agent of such fact, and
(b) purchase from the other Banks such participations in the
Loans made by them as shall be necessary to cause such purchasing
Bank to share the excess payment pro rata with each of them;
provided , however , that if all or any portion of
such excess payment is thereafter recovered from the purchasing
Bank, such purchase shall to that extent be rescinded and each
other Bank shall repay to the purchasing Bank the purchase price
paid therefor, together with an amount equal to such paying
Bank’s ratable share (according to the proportion of
(i) the amount of such paying Bank’s required repayment
to (ii) the total amount so recovered from the purchasing
Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The
Company agrees that any Bank so purchasing a participation from
another Bank may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of set-off, but
subject to Section 10.9 ) with respect to such participation
as fully as if such Bank were the direct creditor of the Company in
the amount of such participation. The Agent will keep records
(which shall be conclusive and binding in the absence of manifest
error) of participations purchased under this Section and will in
each case notify the Banks following any such purchases or
repayments.
ARTICLE III
TAXES, YIELD PROTECTION AND
ILLEGALITY
3.1
Taxes .
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(a)
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Any
and all payments by the Company to each Bank or the Agent under
this Agreement and any other Loan Document shall be made free and
clear of, and without deduction or withholding for any Taxes. In
addition, the Company shall pay all Other Taxes.
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(b)
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The
Company agrees to indemnify and hold harmless each Bank and the
Agent for the full amount of Taxes or Other Taxes (i
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