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Exhibit 10.2
DEFINITIVE AGREEMENT
CREDIT AGREEMENT
Dated as of August 30, 2004
Among
AFFILIATED MANAGERS GROUP, INC., as Borrower,
THE BANK OF NEW
YORK,
And
The Several Lenders
BNY CAPITAL MARKETS,
INC.
i
ii
iii
iv
CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of August 30, 2004, is among Affiliated Managers Group, Inc., a Delaware corporation (the “ Borrower ”), the several banks and other financial institutions from time to time parties to this Agreement (the “ Lenders ”) and The Bank of New York, as administrative agent for the Lenders (the “ Administrative Agent ”).
PRELIMINARY STATEMENT
The definitions of terms set forth in Section 1 of this Agreement apply to terms that are used but not defined in this Preliminary Statement.
The Borrower has consummated its offer to purchase for cash the FELINE PRIDES Senior Notes component of the Income FELINE PRIDES pursuant to the terms and conditions of the Tender Offer. As required under the terms of the Tender Offer and the FELINE PRIDES Documents, at the time of the settlement of the purchase of the FELINE PRIDES Senior Notes, the Depositary (a) utilized $50,744,135.04 of the Purchase Price to purchase Treasury Strips having an aggregate value at maturity equal to the aggregate amount of the FELINE PRIDES Senior Notes tendered and accepted in the Tender Offer and caused such Treasury Strips to be delivered to the FELINE PRIDES Collateral Agent to secure the Common Stock Purchase Obligations relating to the Growth FELINE PRIDES resulting from consummation of the Tender Offer, and (b) delivered the Fixed Cash Component of the Purchase Price to the FELINE PRIDES Purchase Contract Agent for distribution to such tendering Holders. The Borrower has requested that the Lenders make term loans in an aggregate principal amount of up to $51,000,000 to finance or refinance the purchase of such tendered FELINE PRIDES Senior Notes, and the Lenders are willing to do so, subject to the terms and conditions set forth in this Agreement.
IN CONSIDERATION OF the foregoing, the parties hereto hereby agree as follows:
SECTION 1
DEFINITIONS
1.1 Defined Terms . As used in this Agreement, the following terms shall have the following meanings:
“ ABR ” means, for any day, a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as publicly announced from time to time by The Bank of New York as its “prime rate.” The “prime rate” is a rate set by The Bank of New York based upon various factors including The Bank of New York’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such announced rate. Any change in such rate announced by The Bank of New York shall take effect at the opening of business on the day specified in the public announcement of such change.
“ ABR Loan ” means a Loan that bears interest at a rate based upon the ABR.
“ Administrative Agent ” means The Bank of New York, in its capacity as administrative agent under this Agreement and the other Loan Documents, or any successor administrative agent.
“ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule I , or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.
“ 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. For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the securities having ordinary voting power for the election of directors of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
“ Agent-Related Person ” means the Administrative Agent, together with its Affiliates (including, in the case of The Bank of New York in its capacity as the Administrative Agent, the Arranger), and the officers, directors, employees, agents and attorneys-in-fact of the Administrative Agent and its Affiliates.
“ Agreement ” means this Credit Agreement.
“ Applicable Margin ” means, with respect to Eurodollar Loans, 0.375%, and, with respect to ABR Loans, 0.00%.
“ Arranger ” means BNY Capital Markets, Inc., in its capacity as sole lead arranger and sole book manager.
“ Assignee ” is defined in Section 10.6(c).
“ Attorney Costs ” means and includes all reasonable and documented fees, expenses and disbursements of any law firm or other external counsel and, without duplication, the reasonable and documented allocated cost of internal legal services and all reasonable and documented expenses and disbursements of internal counsel; provided that in the case of the enforcement or preservation of any rights under the Loan Documents, Attorney Costs shall not be limited by the term “reasonable” in this definition.
“ Bank Collateral Agent ” means The Bank of New York, as Collateral Agent for the Secured Parties under the Pledge Agreement.
“ Borrower ” is defined in the preamble hereto.
“ Borrower Security Interest ” is defined in Section 4.18(a).
“ Borrowing Base ” means, at any time, an amount equal to (a) the sum of (i) the value at maturity of the Pledged Treasury Strips at such time (not to exceed the aggregate outstanding principal amount of the Loans at such time) and the fair market value of the Cash Collateral at such time, divided by (b) 1.05.
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“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized or required to close under the laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located or in New York, New York (if different), and, if such day relates to any Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
“ 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 or options to purchase any of the foregoing.
“ Cash Equivalents ” means, at any time, (a) any evidence of indebtedness, maturing not more than one year after such time, issued or guaranteed by the United States Government or any agency thereof, (b) commercial paper, maturing not more than one year from the date of issue, or corporate demand notes, in each case (unless issued by a Lender or its holding company) rated at least A-l by S&P or P-l by Moody’s (or carrying an equivalent rating by an internationally-recognized rating agency), (c) any certificate of deposit (or time deposits represented by such certificates of deposit) or bankers acceptance, maturing not more than one year after such time, or overnight Federal funds transactions or money market deposit accounts that are issued or sold by, or maintained with, a commercial bank or financial institution incorporated under the laws of the United States, any state thereof or the District of Columbia which is rated at least A-1 by S&P or P-l by Moody’s (or carrying an equivalent rating by an internationally-recognized rating agency), (d) any repurchase agreement entered into with a commercial bank or financial institution meeting the requirements of clause (c) which (i) is secured by a fully perfected security interest in any obligation of the type described in any of clauses (a) through (c) and (ii) has a market value at the time such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such commercial bank or financial institution thereunder, (e) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank or financial institution meeting the requirements of clause (c), (f) any short-term (or readily marketable or immediately redeemable) investment in a structured investment vehicle, structured investment deposit or similar instrument with a financial strength rating of A by S&P or Moody’s or (g) shares of money market mutual or similar funds which invest primarily in assets satisfying the requirements of clauses (a) through (f) of this definition.
“ Cash Collateral ” means immediately available Dollars and Cash Equivalents constituting Pledged Collateral.
“ Change of Control ” shall be deemed to occur on any date on which any Person or “group” (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934) shall have acquired beneficial ownership of Capital Stock having 30% or more of the ordinary voting power in the election of directors of the Borrower.
“ Closing Date ” means the date on which the conditions precedent set forth in Section 5.1 shall be satisfied.
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“ Code ” means the Internal Revenue Code of 1986.
“ Commitment ” means, as to any Lender, the obligation of such Lender to make a Loan to the Borrower hereunder in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule I under the heading “ Commitment ”.
“ Commitment Percentage ” means as to any Lender at any time, the percentage which such Lender’s Commitment then constitutes of the aggregate Commitments (or, at any time after the Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Lender’s Loans then outstanding constitutes of the aggregate principal amount of the Loans then outstanding).
“ Commonly Controlled Entity ” means an entity, whether or not incorporated, which is under common control with the Borrower within the meaning of Section 4001 of ERISA or is part of a group which includes the Borrower and which is treated as a single employer under Section 414 of the Code.
“ Common Stock ” means the common stock, par value $0.01, of the Borrower.
“ Common Stock Purchase Obligations ” the obligations of the Holders to pay the purchase price for the Common Stock pursuant to the terms and conditions of the FELINE PRIDES Purchase Contracts.
“ Compliance Certificate ” means a certificate substantially in the form of Exhibit H .
“ Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“ Control Agreement ” means the Collateral Control Agreement dated as of July 21, 2004, as amended by the Assignment and Amendment dated as of the Closing Date to the Collateral Control Agreement by and among the Borrower, Bank of America, N.A., as initial agent, the FELINE PRIDES Collateral Agent, the FELINE PRIDES Purchase Contract Agent, the Bank Collateral Agent and The Bank of New York, as Custodial Agent, as defined in and under the FELINE PRIDES Pledge Agreement.
“ Default ” means any of the events specified in Section 8 , whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.
“ Default Rate ” means an interest rate equal to (a) the ABR plus (b) the Applicable Margin, if any, applicable to ABR Loans plus (c) 2% per annum; provided that with respect to a Eurodollar Loan, the Default Rate shall be an interest rate equal to (i) the Eurodollar Rate applicable to such Loan plus (ii) the Applicable Margin applicable to Eurodollar Loans plus (iii) 2% per annum.
“ Depository ” means The Bank of New York, as Depository under the Tender Offer Documents.
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“ Dollars ” and “ $ ” mean lawful currency of the United States of America.
“ Environmental Law ” means any Federal, state, local or foreign statute, law, regulation, ordinance, rule, judgment, order, decree, permit, concession, grant, franchise, license, agreement or governmental restriction relating to pollution or the protection of the environment or the release of any material into the environment, including any of the foregoing related to hazardous substances or wastes, air emissions or discharges to waste or public systems.
“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“ Equity Units ” means the equity security units issued by the Borrower under the FELINE PRIDES Documents on December 18, 2001.
“ ERISA ” means the Employee Retirement Income Security Act of 1974.
“ Eurodollar Loan ” means a Loan that bears interest at a rate based upon the Eurodollar Rate.
“ Eurodollar Rate ” means, for any Interest Period with respect to any Eurodollar Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:
Where,
“ Eurodollar Base Rate ” means, for such Interest Period, the rate per annum determined by the Administrative Agent to be the rate of interest at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Loan being made, continued or converted by The Bank of New York and with a term equivalent to such Interest Period would be offered by The Bank of New York’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.
“ Eurodollar Reserve Percentage ” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB 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 Eurodollar Rate for each outstanding Eurodollar Loan
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shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.
“ Event of Default ” means any of the events specified in Section 8 .
“ Existing Credit Agreement ” means the Amended and Restated Credit Agreement, dated as of August 16, 2004, among the Borrower, the several Lenders from time to time party thereto, Bank of America, N.A., as administrative agent and swingline lender, and JPMorgan Chase Bank, as syndication agent, and The Bank of New York, as documentation agent, as amended to the date hereof (and, for the avoidance of doubt, as the same may be amended, modified or restated from time to time in the future).
“ Federal Funds Rate ” means, for any day, the 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 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, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to The Bank of New York on such day on such transactions as determined by the Administrative Agent.
“ FELINE PRIDES ” means the Income FELINE PRIDES and the Growth FELINE PRIDES, and all other FELINE PRIDES issued by the Borrower under the FELINE PRIDES Documents, collectively.
“ FELINE PRIDES Collateral Agent ” means The Bank of New York, as the Collateral Agent under the FELINE PRIDES Pledge Agreement.
“ FELINE PRIDES Documents ” means the FELINE PRIDES Indenture, the FELINE PRIDES Purchase Contract Agreement, the FELINE PRIDES Income Certificates, the FELINE PRIDES Growth Certificates, the FELINE PRIDES Pledge Agreement and the FELINE Prides Senior Notes.
“ FELINE PRIDES Growth Certificates ” means the certificates evidencing the Growth FELINE PRIDES.
“ FELINE PRIDES Income Certificates ” means the certificates evidencing the Income FELINE PRIDES.
“ FELINE PRIDES Indenture ” means the Indenture, dated as of December 21, 2001, between the Borrower and The Bank of New York (as Successor Trustee pursuant to the Instrument of Resignation, Appointment and Acceptance dated January 15, 2003 among the Borrower, Wachovia Bank, National Association and The Bank of New York, and the Confirmation of Appointment dated as of July 21, 2004 by The Bank of New York for the benefit of the Borrower), as amended by the First Supplemental Indenture dated as of December 21, 2001.
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“ FELINE PRIDES Pledge Agreement ” means the Pledge Agreement, dated as of December 21, 2001, between the Borrower and The Bank of New York (as successor Collateral Agent, Custodial Agent, Purchase Contract Agent and Securities Intermediary pursuant to the Instrument of Resignation, Appointment and Acceptance dated January 15, 2003 among the Borrower, Wachovia Bank, National Association and The Bank of New York, and the Confirmation of Appointment dated as of July 21, 2004 by The Bank of New York for the benefit of the Borrower), as amended by the Amendment to the Pledge Agreement dated as of August 17, 2004.
“ FELINE PRIDES Purchase Contracts ” means, with respect to the FELINE PRIDES, the component purchase contracts under which each Holder thereof agrees to purchase common stock of the Borrower in an amount and for a price determined under the applicable provisions of the FELINE PRIDES Purchase Contract Agreement.
“ FELINE PRIDES Purchase Contract Agent ” means The Bank of New York, as Purchase Contract Agent under the FELINE PRIDES Purchase Contract Agreement.
“ FELINE PRIDES Purchase Contract Agreement ” means the Purchase Contract Agreement, dated as of December 21, 2001, between the Borrower and The Bank of New York (as successor Collateral Agent, Custodial Agent, Purchase Contract Agent and Securities Intermediary pursuant to the Instrument of Resignation, Appointment and Acceptance dated January 15, 2003 among the Borrower, Wachovia Bank, National Association and The Bank of New York, and the Confirmation of Appointment dated as of July 21, 2004 by The Bank of New York for the benefit of the Borrower).
“ FELINE PRIDES Senior Notes ” means the Borrower’s 6% Senior Notes due 2006, issued as a component of the FELINE PRIDES.
“ FELINE PRIDES II Senior Notes ” means the Borrower’s interest bearing notes due February 17, 2010, issued as a component of the FELINE PRIDES equity security units of the Borrower issued on February 17, 2004.
“ Financing Lease ” means any lease of property, real or personal, the obligations of the lessee in respect of which are required in accordance with GAAP to be capitalized on a balance sheet of the lessee.
“ Fixed Cash Component of the Purchase Price ” means that portion of the Purchase Price payable to Holders whose tender of FELINE PRIDES Senior Notes has been accepted in the Tender Offer; pursuant to the Tender Offer Documents, the amount of such portion is equal to the excess of the Purchase Price over the principal amount of such notes.
“ FRB ” means the Board of Governors of the Federal Reserve System of the United States.
“ Funds ” means the collective reference to all Investment Companies and other investment accounts or funds (in whatever form and whether personal or corporate) for which any Subsidiary or Investment Firm provides advisory, management or administrative services.
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“ GAAP ” means generally accepted accounting principles in the United States of America in effect from time to time.
“ Governmental Authority ” means any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“ Growth FELINE PRIDES ” means the Borrower’s Growth FELINE PRIDES, bearing CUSIP No. 008252603.
“ Guarantee Obligation ” means as to any Person (the “ guaranteeing person ”), any obligation of (a) the guaranteeing person or (b) another Person (including any bank under any letter of credit) with respect to which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in any such case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency 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 owner of any such primary obligation against loss in respect thereof; provided that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.
“ Hazardous Materials ” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“ Holder ” means a holder of FELINE PRIDES.
“ Income FELINE PRIDES ” means the Borrower’s Income FELINE PRIDES, bearing CUSIP No. 008252504.
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“ Indebtedness ” means, as to any Person at any date and without duplication, (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services (other than current trade liabilities incurred in the ordinary course of business and payable in accordance with customary practices), (b) any other indebtedness of such Person which is evidenced by a note, bond, debenture or similar instrument (including the FELINE PRIDES Senior Notes and the FELINE PRIDES II Senior Notes), (c) all obligations of such Person under Financing Leases, (d) all obligations of such Person in respect of acceptances issued or created for the account of such Person, (e) all obligations of such Person under noncompetition agreements reflected as liabilities on a balance sheet of such Person in accordance with GAAP, (f) all liabilities secured by any Lien on any property owned by such Person even though such Person has not assumed or otherwise become liable for the payment thereof, (g) all net obligations of such Person under interest rate, commodity, foreign currency and financial markets swaps, options, futures and other hedging obligations (valued, at such date, in accordance with the Borrower’s customary practices, as approved by its independent certified public accountants) and (h) all Guarantee Obligations of such Person in respect of any of the foregoing. For purposes of the foregoing definition, with regard to a Subsidiary, the term “Indebtedness” shall include only that portion of its Indebtedness representing the percentage of its Indebtedness equal to the percentage of the Borrower’s ownership interest in such Subsidiary. For the avoidance of doubt, the term “Indebtedness” shall not include (i) Synthetic Lease Obligations, (ii) any Guarantee Obligations in respect of Synthetic Lease Obligations or (iii) any liabilities secured by any Lien in connection with Synthetic Lease Obligations.
“ Indemnified Liabilities ” is defined in Section 10.05 .
“ Insolvency ” means with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.
“ Interest Payment Date ” means (a) as to any ABR Loan, the last day of each month to occur while such Loan is outstanding, (b) as to any Eurodollar Loan having an Interest Period of three months or less, the last day of such Interest Period and (c) as to any Eurodollar Loan having an Interest Period longer than three months, each day which is three months, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period.
“ Interest Period ” means, with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and ending one, two or three months thereafter (or such other period ending on the Termination Date as is requested by the Borrower and consented to by the Required Lenders and the Administrative Agent), as selected by the Borrower in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurodollar Loan and ending one, two or three months thereafter (or such other period ending on the Termination Date as is requested by the Borrower and consented to by the Required Lenders and the
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Administrative Agent), as selected by the Borrower by irrevocable notice to the Administrative Agent not less than three Business Days prior to the last day of the then current Interest Period with respect thereto;
provided that the foregoing provisions relating to Interest Periods are subject to the following:
(1) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless 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 immediately preceding Business Day;
(2) the Borrower may not select any Interest Period that would extend beyond the scheduled Termination Date; and
(3) unless otherwise agreed by the Borrower, the Required Lenders and the Administrative Agent, any Interest Period 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 appropriate subsequent calendar month.
“ Investment Advisers Act ” means the Investment Advisers Act of 1940.
“ Investment Company ” means an “investment company” as such term is defined in the Investment Company Act.
“ Investment Company Act ” means the Investment Company Act of 1940.
“ Investment Firm ” means any Subsidiary or other Person engaged, directly or indirectly, primarily in the business (the “ Investment Management Business ”) of providing investment advisory, management, distribution or administrative services to Funds (or investment accounts or funds which will be included as Funds after the Borrower acquires an interest in such other Person) and in which the Borrower, directly or indirectly, has purchased or otherwise acquired, or has entered into an agreement to purchase or otherwise acquire, Capital Stock or other interests entitling the Borrower, directly or indirectly, to a share of the revenues, earnings or value thereof.
“ Investment Management Business ” is defined in the definition of “Investment Firm.”
“ Lenders ” is defined in the preamble hereto.
“ Lien ” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any Financing Lease or synthetic lease having substantially the same economic effect as any of the foregoing).
“ Loan Documents ” means this Agreement, any Notes and the Security Documents.
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“ Loans ” is defined in Section 2.1(a).
“ Material Adverse Effect ” means a material adverse effect on (a) the business, operations, property or condition (financial or otherwise) of the Borrower or of the Borrower and its Subsidiaries taken as a whole, (b) the ability of the Borrower to perform its obligations under any Loan Document or (c) the validity or enforceability against the Borrower of this or any of the other Loan Documents or the rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder.
“ Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.
“ Multiemployer Plan ” means a Plan which is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“ Non-Excluded Taxes ” is defined in Section 3.11 .
“ Note ” is defined in Section 2.6(e) .
“ Participant ” is defined in Section 10.6(b) .
“ PBGC ” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA.
“ Person ” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.
“ Plan ” means at a particular time, any employee benefit plan which is covered by ERISA and in respect of which the Borrower or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“ Pledge Agreement ” means the Pledge Agreement, dated the Closing Date, made by the Borrower to the Administrative Agent, as agent for the Lenders.
“ Pledged Collateral ” means the “Collateral”, as defined in the Pledge Agreement.
“ Pledged Treasury Strips ” means the Treasury Strips constituting Pledged Collateral.
“ Purchase Price ” means the aggregate cash consideration paid by the Borrower to the Depository for the account of tendering Holders pursuant to the terms and conditions of the Tender Offer.
“ Purchase Contract Settlement Date ” means November 17, 2004.
“ Register ” is defined in Section 10.6(d) .
“ Regulation U ” means Regulation U of the FRB.
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“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Affiliates.
“ Reorganization ” means, with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.
“ Reportable Event ” means a reportable event as defined in Section 4043 of ERISA and the regulations issued under such section with respect to a Plan, excluding however, such events as to which the PBGC by regulation waived the requirements 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.
“ Required Lenders ” means at any time, Lenders the Commitment Percentages of which aggregate more than 50%.
“ Requirement of Law ” means, as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“ Reserved Common Stock ” is defined in Section 4.17(b).
“ Responsible Officer ” means each of the chief executive officer, the president, the senior vice president, any executive vice president or any vice president of the Borrower or, with respect to financial matters, the senior financial officer of the Borrower, in each case acting singly.
“ S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw- Hill Companies, Inc., and any successor thereto.
“ Securities Acts ” means the Securities Act of 1933 and the Securities Exchange Act of 1934.
“ Security Documents ” the Pledge Agreement, the Control Agreement and the UCC Financing Statement.
“ Single Employer Plan ” means any Plan which is covered by Title IV of ERISA, but which is not a Multiemployer Plan.
“ Subsidiary ” means, as to any Person, a corporation, partnership, limited liability company or other entity of which Capital Stock having ordinary voting power (other than Capital Stock having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership, limited liability company or other entity is at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person.
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Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
“ Synthetic Lease Obligation ” means the monetary obligations of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
“ Tender Offer ” means the Borrower’s offer to purchase the FELINE PRIDES Senior Notes pursuant to the Tender Offer Documents.
“ Tender Offer Documents ” the Borrower’s Offer to Purchase for Cash Any and All of the FELINE PRIDES Senior Notes, dated July 22, 2004, the related Letter of Transmittal and the Depositary Agreement, dated July 22, 2004, between the Borrower and The Bank of New York, as Depository.
“ Termination Date ” means November 17, 2004.
“ The Bank of New York ” means The Bank of New York, a New York state banking corporation, and its successors.
“ Tranche ” means the collective reference to Eurodollar Loans having Interest Periods that began or will begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day).
“ Transferee ” is defined in Section 10.6(f) .
“ Treasury Strips ” means principal strips of U.S. Treasury securities bearing CUSIP No. 912803AB9.
“ Type ” means, as to any Loan, its nature as an ABR Loan or a Eurodollar Loan.
“ UCC Financing Statement ” means the UCC financing statement in the form attached as Schedule 1.1 .
1.2 Other Definitional and Interpretive Provisions . (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes or any certificate or other document made or delivered pursuant hereto.
(b) When used with reference to a period of time, the word “from” means “from and including” and the word “to” means “to but excluding”.
(c) The term “including” is not limiting and means “including without limitation.”
(d) Unless otherwise expressly provided herein, (i) references to agreements (including this Agreement) and other contractual instruments shall be deemed to include all
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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 and rules consolidating, amending, replacing, supplementing or interpreting such statute or regulation.
(e) Section , subsection , clause , Schedule and Exhibit references are to this Agreement unless otherwise specified.
(f) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
1.3 Accounting Terms . All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at December 31, 2003 and the related audited consolidated statements of income and of cash flows for the fiscal year ended on such date, audited by PricewaterhouseCoopers LLP, except as otherwise specifically prescribed herein.
SECTION 2
AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments . (a) Subject to the terms and conditions hereof, each Lender severally agrees to make a single term loan (collectively, “ Loans ”) ( provided that any repricing or conversion of an outstanding Loan shall not be considered a making of a Loan) to the Borrower on the Closing Date in an aggregate principal amount not to exceed the amount of such Lender’s Commitment; provided that the aggregate amount of the Loans shall not exceed the lesser of $51,000,000 and the Borrowing Base on the Closing Date. No Loan (or portion thereof) that has been paid or prepaid may be reborrowed.
(b) The Loans may from time to time be (i) Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 3.3 .
2.2 Procedure for Borrowing . The Borrower may borrow under the Commitments on the Closing Date; provided that the Borrower shall give the Administrative Agent irrevocable written notice, in substantially the form of Exhibit I hereto (which notice must be received by the Administrative Agent prior to 11:00 a.m., New York City time, (a) three Business Days prior to the requested date of borrowing, if all or any part of the requested Loans are to be initially Eurodollar Loans or (b) on the requested date of borrowing, if all of the requested Loans are to be initially ABR Loans), in each case specifying (i) the amount to be borrowed, (ii) the requested date of borrowing, (iii) whether the borrowing is to be of Eurodollar Loans, ABR Loans or a combination thereof and (iv) if the borrowing is to be entirely or partly
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of Eurodollar Loans, the respective amounts of each Type of Loan and the respective lengths of the initial Interest Periods for such Eurodollar Loans. Each borrowing of ABR Loans shall be in an amount equal to $1,000,000 or a whole multiple of $100,000 in excess thereof, and each borrowing of Eurodollar Loans shall be in an amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of any such notice from the Borrower, the Administrative Agent shall promptly notify each Lender thereof. Each Lender will make the amount of its pro rata share of each borrowing available to the Administrative Agent for the account of the Borrower at the Administrative Agent’s Office prior to 1:00 p.m., New York City time, on the Closing Date in funds immediately available to the Administrative Agent. Such borrowing will then be made available to the Borrower by the Administrative Agent crediting the account of the Borrower on the books of such office with the aggregate of the amounts made available to the Administrative Agent by the Lenders and in like funds as received by the Administrative Agent. The failure of any Lender to make a Loan to be made by it as part of any borrowing shall not relieve any other Lender of its obligation to make available its share of such borrowing.
2.3 [ Reserved ]
2.4 [ Reserved ]
2.5 Termination or Reduction of Commitments . The Commitments shall automatically terminate at 5:00 p.m. on the Closing Date.
2.6 Repayment of Loans; Evidence of Debt . (a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the then unpaid principal amount of each Loan of such Lender on the Termination Date (or such earlier date on which the Loans become due and payable pursuant to Section 8 ). The Borrower hereby further agrees to pay interest on the unpaid principal amount of the Loans from time to time outstanding from the date hereof until payment in full thereof at the rates per annum, and on the dates, set forth in Section 3.5 .
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of the Borrower to such Lender resulting from each Loan of such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to Section 10.6(d) , and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Loan made hereunder, the Type thereof and each Interest Period applicable with respect to each Eurodollar Loan, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) both the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof.
(d) The entries made in the Register and the accounts of each Lender maintained pursuant to Section 2.6(b) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded;
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provided that the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower by such Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the Administrative Agent by any Lender, the Borrower will execute and deliver to such Lender a promissory note of the Borrower evidencing the Loans of such Lender, substantially in the form of Exhibit A with appropriate insertions as to date and principal amount (a “ Note ”).
2.7 [ Reserved ]
2.8 [ Reserved ]
SECTION 3
GENERAL PROVISIONS APPLICABLE TO THE LOANS
3.1 No Optional Prepayment . The Loans may not be prepaid except as required by Section 3.2 or Section 8 .
3.2 Mandatory Prepayment . If, at any time, the aggregate principal amount of the Loans exceeds the Borrowing Base, the Borrower shall immediately prepay Loans in the amount of such excess. All prepayments of Loans pursuant to this Section 3.2 shall be made without premium or penalty (but shall be subject to Section 3.12 ) and shall be accompanied by accrued and unpaid interest on the principal amount being prepaid. All such prepayments shall be applied as directed in writing by the Borrower or, in the absence of such direction, first , to prepay ABR Loans until the ABR Loans are paid in full and, second , to prepay Eurodollar Loans.
3.3 Conversion and Continuation Options . (a) The Borrower may elect from time to time to convert Eurodollar Loans to ABR Loans by giving the Administrative Agent at least two Business Days’ prior irrevocable written notice, substantially in the form of Exhibit J hereto, of such election; provided that any such conversion of Eurodollar Loans may only be made on the last day of an Interest Period with respect thereto. The Borrower may elect from time to time to convert ABR Loans to Eurodollar Loans by giving the Administrative Agent at least three Business Days’ prior irrevocable written notice, substantially in the form of Exhibit J hereto, of such election. Any such notice of conversion to Eurodollar Loans shall specify the length of the initial Interest Period or Interest Periods therefor. Upon receipt of any such notice the Administrative Agent shall promptly notify each Lender thereof. All or any part of outstanding Eurodollar Loans and ABR Loans may be converted as provided herein; provided that no Loan may be converted into a Eurodollar Loan when any Event of Default has occurred and is continuing and the Administrative Agent has or the Required Lenders have determined that such a conversion is not appropriate.
(b) Any Eurodollar Loans may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Borrower giving written notice, substantially in the form of Exhibit J hereto, to the Administrative Agent, in accordance with the
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applicable provisions of the term “Interest Period” set forth in Section 1.1 , of the length of the next Interest Period to be applicable to such Loans; provided that no Eurodollar Loan may be continued as such when any Event of Default has occurred and is continuing and the Administrative Agent has notified the Borrower that the Required Lenders have determined that such a continuation is not appropriate; and provided , further, that if the Borrower shall fail to give such notice or if such continuation is not permitted such Eurodollar Loans shall be automatically converted to ABR Loans on the last day of such then expiring Interest Period.
3.4 Minimum Amounts and Maximum Number of Tranches . All conversions and continuations of Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that, after giving effect thereto, the aggregate principal amount of the Loans comprising each Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof. In no event shall there be more than one Eurodollar Tranche outstanding at any time.
3.5 Interest Rates and Payment Dates . (a) Each Eurodollar Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Eurodollar Rate determined for such day plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to the ABR plus the Applicable Margin.
(c) If any amount payable by the Borrower under any Loan Document is not paid when due (without regard to any applicable grace period), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable laws. Furthermore, upon the request of the Required Lenders, at any time an Event of Default exists, the Borrower shall pay interest on the Loans at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable laws.
(d) Interest shall be payable in arrears on each Interest Payment Date and on the Termination Date; provided that interest accruing pursuant to Section 3.5(c) shall be payable from time to time on demand.
3.6 Computation of Interest and Fees . (a) Interest based on The Bank of New York’s “prime rate” shall be calculated on the basis of a year of 365 (or, if applicable, 366) days and for the actual number of days elapsed. All other interest and all fees shall be calculated on the basis of a year of 360 days and for the actual number of days elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and the Lenders of each determination of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a change in the ABR or the Eurodollar Reserve Percentage shall become effective as of the opening of business on the day on which such change becomes effective. The Administrative Agent shall as soon as practicable notify the Borrower and the Lenders of the effective date and the amount of each such change in the ABR or the Eurodollar Reserve Percentage.
(b) Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower
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and the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the Borrower or any Lender, deliver to the Borrower or such Lender a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to Section 3.5(a) .
3.7 Inability to Determine Interest Rate . If prior to the first day of any Interest Period:
(a) the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from The Bank of New York that the Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to the Lenders (as conclusively certified by The Bank of New York) of making or maintaining their affected Loans during such Interest Period,
then the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the affected Lenders as soon as practicable thereafter. If such notice is given, (x) any Eurodollar Loans requested to be made on the first day of such Interest Period shall be made as ABR Loans, (y) any ABR Loans that were to have been converted on the first day of such Interest Period to Eurodollar Loans shall be continued as ABR Loans and (z) any outstanding Eurodollar Loans shall be converted, on the first day of such Interest Period, to ABR Loans. Until such notice has been withdrawn by the Administrative Agent, no further Eurodollar Loans shall be made or continued as such, nor shall the Borrower have the right to convert Loans to Eurodollar Loans.
3.8 Pro Rata Treatment and Payments . (a) Each borrowing by the Borrower from the Lenders hereunder shall be made pro rata according to the respective Commitment Percentages of the Lenders. Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Loans shall be made pro rata according to the respective outstanding principal amounts of the Loans then held by the Lenders. All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without set off or counterclaim and shall be made prior to 12:00 noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders at the Administrative Agent’s Office, in Dollars and in immediately available funds. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt (and if such payment is received prior to 12:00 noon, on the same day) in like funds as received. If any payment hereunder becomes due and payable on a day other than a Business Day, the due date for such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension and such extension of time shall in such case be included in the computation of payment of interest or fees, as the case may be.
(b) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute
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its portion of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the daily average Federal Funds Rate for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this subsection shall be conclusive in the absence of manifest error. If such Lender’s portion of such borrowing is not made available to the Administrative Agent by such Lender within three Business Days of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans hereunder, on demand, from the Borrower.
(c) In the event that a Lender fails to make available after a period of three Business Days to the Administrative Agent its portion of a borrowing, the Borrower may, upon not less than five Business Days prior irrevocable written notice to the Administrative Agent, immediately terminate the Commitment of such Lender, and designate an acceptable replacement Lender (which may be one of the other Lenders) to purchase at par all of the Lender’s interests in accordance with the provisions of Section 10.6(c) . Any Lender being so replaced by the Borrower agrees to transfer its interest in this Agreement and, if applicable, its Note, to the substitute Lender pursuant to Section 10.6(c) ; provided that concurrently with such transfer, such Lender so substituted shall be paid all amounts owing to it hereunder and all costs reasonably determined by it to be attributable to such transfer. Notwithstanding the foregoing, the Lender being replaced shall not be deemed to be released from any of its rights or obligations under any Loan Document (including Section 9.7 ) for actions taken or failed to be taken by it prior to the date of such substitution.
3.9 Illegality . Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for any Lender to make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and convert ABR Loans to Eurodollar Loans shall forthwith be cancelled and (b) such Lender’s Loans then outstanding as Eurodollar Loans, if any, shall be converted automatically to ABR Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurodollar Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to Section 3.12 .
3.10 Requirements of Law . (a) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with respect to this Agreement, any Note or any Eurodollar Loan made by it, or change the
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basis of taxation of payments to such Lender in respect thereof (except for Non-Excluded Taxes covered by Section 3.11 and changes in the rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender which is not otherwise included in the determination of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender, by an amount which such Lender in good faith deems to be material, of making, converting into, continuing or maintaining Eurodollar Loans or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly (and in any event within 10 days after receipt of a certificate in accordance with Section 3.10(c) ) pay such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or application thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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