SENIOR BRIDGE TERM LOAN CREDIT AGREEMENT

 

TABLE OF CONTENTS

 

 

		PAGE
ARTICLE 1
DEFINITIONS
Section 1.01 . Definitions		1
ARTICLE 2
THE CREDITS
Section 2.01 . Commitment		21
Section 2.02. Required Payments		21
Section 2.03. Ratable Loans		21
Section 2.04. Types of Advances		22
Section 2.05. Undrawn Commitment Fee / Duration Fees / Termination or Reductions of Commitments		22
Section 2.06. Minimum Amount of Each Advance		23
Section 2.07. Optional Principal Payments		23
Section 2.08 . Mandatory Prepayments		23
Section 2.09. Method of Selecting Types and Interest Periods for New Advances		23
Section 2.10 . Conversion and Continuation of Outstanding Advances		24
Section 2.11 . Interest Rate, Etc.		25
Section 2.12 . Rates Applicable After Default		25
Section 2.13 . Method of Payment		25
Section 2.14 . Noteless Agreement; Evidence of Indebtedness		26
Section 2.15 . Telephonic Notices		26
Section 2.16 . Interest Payment Dates; Interest and Fee Basis		27
Section 2.17 . Notification of Advances, Interest Rates, Prepayments and Commitment Reductions		27
Section 2.18. Lending Installations		27
Section 2.19 . Non-Receipt of Funds by the Administrative Agent		27
Section 2.20 . Replacement of Lender		28
ARTICLE 3
YIELD PROTECTION; TAXES
Section 3.01 . Yield Protection		29
Section 3.02 . Changes in Capital Adequacy Regulations		29
Section 3.03 . Availability of Types of Advances		30
Section 3.04 . Funding Indemnification		30
Section 3.05 . Taxes		30

 

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Section 3.06 . Lender Statements; Survival of Indemnity		33
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.01 . Effectiveness		33
Section 4.02 . Conditions Precedent to the Advances on the Closing Date		34
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Section 5.01 . Corporate Existence and Standing		38
Section 5.02 . Authorization and Validity		38
Section 5.03 . Compliance with Laws and Contracts		38
Section 5.04 . Governmental Consents		38
Section 5.05 . Financial Statements		39
Section 5.06 . Material Adverse Change		39
Section 5.07 . Taxes		39
Section 5.08 . Litigation and Contingent Obligations		39
Section 5.09 . ERISA		39
Section 5.10 . Defaults		40
Section 5.11 . Regulation U		40
Section 5.12 . Investment Company		40
Section 5.13 . Ownership of Properties		40
Section 5.14 . Material Agreements		40
Section 5.15 . Environmental Laws		41
Section 5.16 . Insurance		41
Section 5.17 . Insurance Licenses		41
Section 5.18 . Disclosure		41
Section 5.19. Solvency		42
Section 5.20 . Senior Debt		42
Section 5.21. Foreign Corrupt Practices Act		42
ARTICLE 6
COVENANTS
Section 6.01 . Financial Reporting		43
Section 6.02 . Use of Proceeds		44
Section 6.03 . Notice of Default		45
Section 6.04 . Conduct of Business		45
Section 6.05 . Taxes		45
Section 6.06 . Insurance		45
Section 6.07 . Compliance with Laws		46
Section 6.08 . Maintenance of Properties		46
Section 6.09 . Inspection		46

 

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Section 6.10 . Capital Stock and Dividends		46
Section 6.11 . Merger		46
Section 6.12 . Liens		47
Section 6.13 . Affiliates		48
Section 6.14 . Change in Fiscal Year		48
Section 6.15 . Restrictive Agreements		48
Section 6.16 . Dispositions		49
Section 6.17 . Financial Covenants		49
Section 6.18 . ERISA		49
Section 6.19 . Indebtedness		49
Section 6.20 . Acquisitions		50
ARTICLE 7
DEFAULTS
Section 7.01 . Defaults		51
ARTICLE 8
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
Section 8.01 . Acceleration		52
Section 8.02 . Amendments		53
Section 8.03 . Preservation of Rights		54
ARTICLE 9
GENERAL PROVISIONS
Section 9.01 . Survival of Representations		54
Section 9.02 . Governmental Regulation		54
Section 9.03 . Headings		54
Section 9.04 . Entire Agreement		54
Section 9.05 . Several Obligations; Benefits of this Agreement		55
Section 9.06. Expenses; Indemnification		55
Section 9.07 . Numbers of Documents		57
Section 9.08 . Accounting		57
Section 9.09 . Severability of Provisions		57
Section 9.10 . Nonliability of Lenders		57
Section 9.11 . Confidentiality		57
Section 9.12 . Disclosure		58
Section 9.13 . USA PATRIOT ACT NOTIFICATION		58
ARTICLE 10
THE ADMINISTRATIVE AGENT
Section 10.01. Authorization and Authority		58

 

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Section 10.02. Administrative Agent Individually		59
Section 10.03. Duties of Administrative Agent; Exculpatory Provisions		60
Section 10.04. Reliance by Administrative Agent		61
Section 10.05. Delegation of Duties		61
Section 10.06. Resignation of Administrative Agent		61
Section 10.07. Non-Reliance on Administrative Agent and Other Lenders		62
Section 10.08. No Other Duties, Etc.		63
ARTICLE 11
SETOFF; RATABLE PAYMENTS
Section 11.01 . Setoff		64
Section 11.02 . Ratable Payments		64
ARTICLE 12
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
Section 12.01 . Successors and Assigns		64
Section 12.02 . Participations		65
Section 12.03 . Assignments		66
Section 12.04 . Dissemination of Information		67
Section 12.05 . Tax Treatment		67
ARTICLE 13
NOTICES
Section 13.01 . Giving Notice		68
Section 13.02 . Change of Address		69
ARTICLE 14
COUNTERPARTS
ARTICLE 15
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
Section 15.01 . CHOICE OF LAW		69
Section 15.02 . CONSENT TO JURISDICTION		69
Section 15.03 . WAIVER OF JURY TRIAL		70

 

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Schedules

 

Pricing Schedule
Schedule 1.01			Commitments
Schedule 4.02(g)			Continuing Debt Instruments
Schedule 5.21			Foreign Corrupt Practices Act Matters
Exhibits
Exhibit A	Form Note
Exhibit B	Form Compliance Certificate
Exhibit C	Form Assignment Agreement

 

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SENIOR BRIDGE TERM LOAN CREDIT AGREEMENT

 

This Senior Bridge Term Loan Credit Agreement, dated as of August 13, 2010, is among Aon Corporation, a Delaware corporation, the Lenders (as defined below), and Credit Suisse AG, as Administrative Agent.

 

R E C I T A L S:

 

A.            In connection with the Transactions (as defined below), the Borrower has requested the Lenders to make financial accommodations to it in the aggregate principal amount of $1,500,000,000; and

 

B.            The Lenders are willing to extend such financial accommodations on the terms and conditions set forth below.

 

NOW, THEREFORE, in consideration of the premises and of the mutual agreements made herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE 1
DEFINITIONS

 

Section 1.01 .  Definitions.  As used in this Agreement:

 

“ Activities ” is defined in Section 10.02(b).

 

“ Administrative Agent ” means Credit Suisse AG in its capacity as contractual representative of the Lenders pursuant to Article 10, and not in its individual capacity as a Lender, and any successor Administrative Agent appointed pursuant to Article 10.

 

“ Administrative Questionnaire ” shall mean an administrative questionnaire in a form provided by the Administrative Agent which shall include, without limitation, a designation by the assignee of one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower, the Company or their respective Subsidiaries, related parties or securities) will be made available, who will comply with Section 9.11 of this Agreement and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including federal and state securities laws.

 

“ Advance ” means a borrowing of Loans, (a) advanced by the Lenders on the same Borrowing Date, or (b) converted or continued by the Lenders on the same date of conversion or continuation, consisting, in either case, of the aggregate amount of the several Loans of the same Type and, in the case of Eurodollar Loans, for the same Interest Period.

 

“ Affected Lender ” is defined in Section 2.20.

 

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“ Affiliate ” of any Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person.  A Person shall be deemed to control another Person if the controlling Person owns 10% or more of any class of voting securities (or other ownership interests) of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock, by contract or otherwise.

 

“ Agent ” means the Administrative Agent, any Arranger, the Syndication Agent, the Co-Documentation Agents and each Co-Arranger and “ Agents ” means all of them.

 

“ Agent’s Group ” is defined in Section 10.02(b).

 

“ Aggregate Commitment ” means the aggregate of the Commitments of all the Lenders, as reduced from time to time pursuant to the terms hereof.  The initial Aggregate Commitment is $1,500,000,000.

 

“ Aggregate Outstanding Credit Exposure ” means, at any time, the aggregate of the Outstanding Credit Exposure of all the Lenders.

 

“ Agreement ” means this Senior Bridge Term Loan Credit Agreement, as it may be amended or modified and in effect from time to time.

 

“ Agreement Accounting Principles ” means generally accepted accounting principles as in effect from time to time, applied in a manner consistent with those used in preparing the financial statements referred to in Section 4.02(h).

 

“ Alternate Base Rate ” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and (c) the Eurodollar Base Rate for a one month Interest Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00%; provided that, for the avoidance of doubt, the Eurodollar Base Rate for any day shall be based on the rate determined on such day at approximately 11 a.m. (London time) by reference to the British Bankers’ Association Interest Settlement Rates for deposits in dollars (as set forth by any service selected by the Administrative Agent that has been nominated by the British Bankers’ Association as an authorized vendor for the purpose of displaying such rates).  Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Eurodollar Base Rate shall be effective on the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Eurodollar Base Rate, as the case may be.

 

“ Alternate Base Rate Advance ” means an Advance which bears interest determined by reference to the Alternate Base Rate.

 

“ Alternate Base Rate Loan ” means a Loan which bears interest determined by reference to the Alternate Base Rate.

 

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“ Applicable Margin ” means (a) with respect to Alternate Base Rate Advances, the greater of (i) 0% per annum and (ii) the percentage rate per annum which is applicable at such time as set forth in the Pricing Schedule minus 1.00% and (b) with respect to Eurodollar Advances, the percentage rate per annum which is applicable at such time as set forth in the Pricing Schedule.

 

“ Approved Fund ” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

“ Arrangers ” means Credit Suisse Securities (USA) LLC and Morgan Stanley Senior Funding, Inc. and their respective successors, in their capacity as “Joint Lead Arrangers”.

 

“ Article ” means an article of this Agreement unless another document is specifically referenced.

 

“ Authorized Officer ” means any of the president, chief financial officer, treasurer or vice-president and controller of the Borrower, acting singly.

 

“ Borrower ” means Aon Corporation, a Delaware corporation, and its successors and permitted assigns.

 

“ Borrower Debt Rating ” means the senior unsecured long-term debt (without third party credit enhancement) rating of the Borrower as determined by a rating agency identified on the Pricing Schedule.

 

“ Borrowing Date ” means a date on which an Advance is made hereunder.

 

“ Borrower Material Adverse Change ” is defined in Section 4.02(n).

 

“ Borrower Material Adverse Effect ” means any event, change, effect, development, state of facts, condition, circumstance or occurrence that is or would reasonably be expected to be materially adverse to the business, assets, liabilities, condition (financial or otherwise) or results of operations of the Borrower and its Subsidiaries, taken as a whole, but shall not be deemed to include any event, change, effect, development, state of facts, condition, circumstance or occurrence: (i) in or affecting economic conditions (including changes in interest rates) or the financial or securities markets in the United States or elsewhere in the world, to the extent the Borrower and its Subsidiaries are not adversely affected in a disproportionate manner relative to other participants in the industries in which the Borrower and its Subsidiaries operate, (ii) in or affecting the industries in which the Borrower and its Subsidiaries operate generally (but, for the avoidance of doubt, not including the industries in which the Borrower’s or any of its Subsidiaries’ clients or customers operate), to the extent the Borrower and its Subsidiaries are not adversely affected in a disproportionate manner relative to other participants in the industries in which the Borrower and its Subsidiaries operate or (iii) resulting from or arising out of (A) the announcement or the existence of, or compliance with, or taking any action required by the

 

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Merger Agreement or the Transactions (as defined in the Merger Agreement), (B) any taking of any action at the written request of the Company (and, with respect to any material action, with the prior written consent of the Arrangers, not to be unreasonably withheld), (C) any litigation arising from allegations of a breach of fiduciary duty or other violation of applicable Law relating to the Merger Agreement or the Transactions (as defined in the Merger Agreement), (D) any adoption, implementation, promulgation, repeal, modification, reinterpretation or proposal, in each case after the date of the Merger Agreement, of any rule, regulation, ordinance, order, protocol or any other Law of or by any national, regional, state or local Governmental Entity, to the extent the Borrower and its Subsidiaries are not adversely affected in a disproportionate manner relative to other participants in the industries in which the Borrower and its Subsidiaries operate, (E) any changes in GAAP or accounting standards or interpretations thereof, to the extent the Borrower and its Subsidiaries are not adversely affected in a disproportionate manner relative to other participants in the industries in which the Borrower and its Subsidiaries operate, (F) any outbreak or escalation of hostilities or acts of war or terrorism, to the extent the Borrower and its Subsidiaries are not adversely affected in a disproportionate manner relative to other participants in the industries in which the Borrower and its Subsidiaries operate or (G) any change in the share price or trading volume of the Parent Common Stock, in the Borrower’s credit rating or in any analyst’s recommendations, in each case in and of itself, or the Borrower’s failure to meet projections or forecasts (including any analyst’s projections), in and of itself ( provided , in each case, that the event, change, effect, development, condition, circumstance or occurrence underlying such change or failure shall not be excluded, and may be taken into account, in determining whether there is or would reasonably be expected to be a Borrower Material Adverse Effect).  The capitalized terms used in this definition and not otherwise defined in this Agreement shall have the meanings set forth in the Merger Agreement as in effect on the date hereof.

 

“ Borrowing Notice ” is defined in Section 2.09.

 

“ Business Day ” means (a) with respect to any borrowing, payment or rate selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on which banks generally are open in New York for the conduct of substantially all of their commercial lending activities, interbank wire transfers can be made on the Fedwire system and dealings in United States dollars are carried on in the London interbank market and (b) for all other purposes, a day (other than a Saturday or Sunday) on which banks generally are open in New York for the conduct of substantially all of their commercial lending activities and interbank wire transfers can be made on the Fedwire system.

 

“ Cananwill Securitization ” means each of (i) the Second Amended and Restated Purchase Agreement, dated as of March 30, 2001, by and among Cananwill Premium Credit Trust, Cananwill Corporation, the Borrower, the Purchasers and Managing Agents listed on the signature pages thereto and JP Morgan Chase Bank, N.A. (successor by merger to Bank One, NA), as Administrative Agent, (ii) the Receivables Purchase Agreement, dated as of December 11, 2002, by and among Cananwill Canada Limited, the Borrower and CIBC Mellon Trust Company, in its capacity as Trustee of Plaza Trust, (iii) the Amended and Restated Receivables

 

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Purchase Agreement, dated as of December 19, 2002, by and among Cananwill Receivables Purchase Facility, L.L.C., Cananwill Europe Limited, the Borrower, the Purchasers and Managing Agents listed on the signature pages thereto and JP Morgan Chase Bank, N.A. (successor by merger to Bank One, NA), as administrative agent and (iv) the Receivables Facilities Agreement, dated as of December 20, 2001, by and among Abel Tasman Holdings Pty Limited, Cananwill Australia Pty Limited, Cananwill, Inc. and ABN AMRO Asset Management (Australia) Limited, in each case as the same may be modified, amended or supplemented from time to time, provided that such modification, amendment or supplement does not change the fundamental nature thereof.

 

“ Capitalized Lease ” of a Person means any lease of Property by such Person as lessee which would be capitalized on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles.

 

“ Capitalized Lease Obligations ” of a Person means the amount of the obligations of such Person under Capitalized Leases which would be shown as a liability on a balance sheet of such Person prepared in accordance with Agreement Accounting Principles.

 

“ Change ” is defined in Section 3.02.

 

“ Change in Control ” means (a) the acquisition by any Person, or two or more Persons acting in concert, including without limitation any acquisition effected by means of any transaction contemplated by Section 6.11, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934) of 30% or more of the outstanding shares of voting stock of the Borrower, or (b) during any period of 25 consecutive calendar months, commencing on the date of this Agreement, the ceasing of those individuals (the “ Continuing Directors ”) who (i) were directors of the Borrower on the first day of each such period or (ii) subsequently became directors of the Borrower and whose initial election or initial nomination for election subsequent to that date was approved by a majority of the Continuing Directors then on the board of directors of the Borrower, to constitute a majority of the board of directors of the Borrower.

 

“ Closing Date ” shall mean the date on which the Merger is consummated and the conditions precedent set forth in Section 4.02 have been satisfied or waived.

 

“ Closing Date Specified Representations ” means the representations and warranties set forth in Sections 5.01(a), 5.02, 5.03 (other than the first sentence thereof), 5.05, 5.11, 5.12, 5.18(a), 5.19 and 5.20.

 

“ Co-Arranger Commitment Letter ” means that Co-Arranger Commitment Letter dated as of July 21, 2010 from Credit Suisse AG, Credit Suisse Securities (USA) LLC, Morgan Stanley Senior Funding, Inc., Bank of America, N.A., Deutsche Bank Securities Inc., Deutsche Bank AG Cayman Islands Branch, Deutsche Bank AG New York Branch, and the Royal Bank of Scotland plc to the Borrower.

 

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“ Co-Arrangers ” means Bank of America, N.A., Deutsche Bank Securities Inc. and RBS Securities Inc. (or, in each case, their respective successors), in their collective capacity as “Co-Arrangers”.

 

“ Co-Documentation Agents ” means Bank of America, N.A., Deutsche Bank Securities Inc. and RBS Securities Inc. (or, in each case, their respective Affiliates and successors), in their collective capacity as “Co-Documentation Agents”.

 

“ Code ” means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time.

 

“ Commitment ” means, for each Lender, the obligation of such Lender to make Loans to the Borrower in an aggregate outstanding amount not exceeding the amount set forth opposite its name on Schedule 1.01 hereto,  as it may be modified as a result of any assignment that has become effective pursuant to Section 12.03(b) or as otherwise modified from time to time pursuant to the terms hereof.

 

“ Commitment Fee ” is defined in Section 2.05(a).

 

“ Commitment Letter ” means that Commitment Letter dated as of July 11, 2010 from Credit Suisse AG, Credit Suisse Securities (USA) LLC and Morgan Stanley Senior Funding, Inc. to the Borrower.

 

“ Communications ” is defined in Section 13.01.

 

“ Company ” means Hewitt Associates, Inc., a Delaware corporation.

 

“ Company Material Adverse Change ” is defined in Section 4.02(o).

 

“ Company Material Adverse Effect ” means any event, change, effect, development, state of facts, condition, circumstance or occurrence that is or would be reasonably expected to be materially adverse to the business, assets, liabilities, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, taken as a whole, but shall not be deemed to include any event, change, effect, development, state of facts, condition, circumstance or occurrence: (i) in or affecting economic conditions (including changes in interest rates) or the financial or securities markets in the United States or elsewhere in the world, to the extent the Company and its Subsidiaries are not adversely affected in a disproportionate manner relative to other participants in the industries in which the Company or its Subsidiaries operate, (ii) in or affecting the industries in which the Company or its Subsidiaries operate generally (but, for the avoidance of doubt, not including the industries in which the Company’s or any of its Subsidiaries’ clients or customers operate), to the extent the Company and its Subsidiaries are not adversely affected in a disproportionate manner relative to other participants in the industries in which the Company or its Subsidiaries operate or (iii) resulting from or arising out of (A) the announcement or the existence of, or compliance with, or taking any action required by the Merger Agreement or the Transactions (as defined in the Merger Agreement), (B) any taking of

 

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any action at the written request of the Borrower, Merger Sub or Merger LLC (and, with respect to any material action, with the prior written consent of the Arrangers, not to be unreasonably withheld), (C) any litigation arising from allegations of a breach of fiduciary duty or other violation of applicable law relating to the Merger Agreement or the Transactions (as defined in the Merger Agreement), (D) any adoption, implementation, promulgation, repeal, modification, reinterpretation or proposal, in each case after the date of the Merger Agreement, of any rule, regulation, ordinance, order, protocol or any other Law of or by any national, regional, state or local Governmental Entity, to the extent the Company and its Subsidiaries are not adversely affected in a disproportionate manner relative to other participants in the industries in which the Company or its Subsidiaries operate, (E) any changes in GAAP or accounting standards or interpretations thereof, to the extent the Company or its Subsidiaries are not adversely affected in a disproportionate manner relative to other participants in the industries in which the Company and its Subsidiaries operate, (F) any outbreak or escalation of hostilities or acts of war or terrorism, to the extent the Company and its Subsidiaries are not adversely affected in a disproportionate manner relative to other participants in the industries in which the Company or its Subsidiaries operate, or (G) any change in the share price or trading volume of the shares of Company Common Stock, in the Company’s credit rating or in any analyst’s recommendations, in each case in and of itself, or the failure of the Company to meet projections or forecasts (including any analyst’s projections), in and of itself ( provided , in each case, that the event, change, effect, development, condition, circumstance or occurrence underlying such change or failure shall not be excluded, and may be taken into account, in determining whether there is or would reasonably be expected to be a Company Material Adverse Effect).  The capitalized terms used in this definition and not otherwise defined in this Agreement shall have the meanings set forth in the Merger Agreement as in effect on the date hereof.

 

“ Condemnation ” is defined in Section 7.01(h).

 

“ Confidential Information Memorandum ” means the Confidential Information Memorandum of the Borrower dated June 2010.

 

“ Consolidated ” or “ consolidated ”, when used in connection with any calculation, means a calculation to be determined on a consolidated basis for the Borrower and its Subsidiaries (or, when used with respect to any other Person, such Person and its Subsidiaries) in accordance with generally accepted accounting principles.

 

“ Consolidated Adjusted EBITDA ” means, for any Measurement Period, Consolidated Net Income for such period plus, (a) to the extent deducted from revenues in determining Consolidated Net Income, (i) Consolidated Interest Expense, (ii) expense for taxes paid or accrued, (iii) depreciation, (iv) amortization, (v) extraordinary losses incurred other than in the ordinary course of business, (vi) the Transaction Costs and (vii) non recurring cash charges incurred for such period in connection with the Merger in an amount not to exceed $50,000,000 in the aggregate during the term of this Agreement minus (b) to the extent included in Consolidated Net Income, extraordinary gains realized other than in the ordinary course of business, all calculated for the Borrower and its Subsidiaries on a consolidated basis; provided

 

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that, notwithstanding the foregoing provisions of this definition, no amounts shall be added pursuant to clauses (i) through (v) for any losses, costs, expenses or other charges resulting from the settlement of any Disclosed Claims or any payments in respect of any judgments or other orders thereon or any restructuring or other charges in connection therewith or relating thereto.

 

“ Consolidated Funded Debt ” means, without duplication, (i) all Indebtedness of the Borrower and its Subsidiaries of the types described in clauses (a), (b), (c), (d) and (e) of the definition of Indebtedness (excluding, for purposes of clauses (b) and (c), any leases that constitute operating leases in accordance with Agreement Accounting Principles), and (ii) all Indebtedness of the Borrower and its Subsidiaries of the type described in clause (j) of the definition of Indebtedness with respect to Indebtedness of the types described in clause (i) above, calculated on a Consolidated basis.

 

“ Consolidated Interest Expense ” means, for any Measurement Period, the interest expense of the Borrower and its Subsidiaries calculated on a consolidated basis for such period.

 

“ Consolidated Leverage Ratio ” means, as of the last day of any Measurement Period, the ratio of Consolidated Funded Debt at such date to Consolidated Adjusted EBITDA for such Measurement Period; provided that in the event that the Senior Notes are issued prior to the Closing Date and the proceeds thereof are held in escrow pursuant to arrangements reasonably satisfactory to the Administrative Agent, the outstanding principal amount of the Senior Notes for the purpose of determining the Consolidated Leverage Ratio at any time prior to the Closing Date shall be deemed to be the excess (if any) of the outstanding principal amount of the Senior Notes over the escrowed proceeds thereof.

 

“ Consolidated Net Income ” means, with reference to any period, the net income (or loss) of the Borrower and its Subsidiaries calculated on a consolidated basis for such period.

 

“ Consolidated Net Worth ” means, at any date of determination, the consolidated common stockholders’ equity of the Borrower and its consolidated Subsidiaries determined in accordance with Agreement Accounting Principles.

 

“ Contingent Obligation ” of a Person means any agreement, undertaking or arrangement by which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the payment of, or otherwise becomes or is contingently liable upon, the obligation or liability of any other Person, or agrees to maintain the net worth or working capital or other financial condition of any other Person, or otherwise assures any creditor of such other Person against loss, including, without limitation, any comfort letter, operating agreement or take or pay contract or application for a Letter of Credit.

 

“ Continuing Debt Instruments ” means the agreements and instruments set forth on Schedule 4.02(g) as the same may be supplemented, modified, amended, refinanced or replaced from time to time; provided that in each case the aggregate outstanding principal amount thereof (or credit committed thereunder) is not increased without the consent of the Required Lenders except as contemplated by Section 6.19(b).

 

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“ Controlled Group ” means all members of a controlled group of corporations or other business entities and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower or any of its Subsidiaries, are treated as a single employer under Section 414 of the Code.

 

“ Conversion/Continuation Notice ” is defined in Section 2.10.

 

“ Credit Extension ” means the making of an Advance hereunder.

 

“ Credit Extension Date ” means the Borrowing Date for an Advance.

 

“ Default ” means an event described in Article 7.

 

“ Defaulting Lender ” has the meaning specified in Section 2.20.

 

“ Disclosed Claims ” means any litigation, proceeding or investigation disclosed in (a) the Borrower’s annual report on Form 10-K for the year ended December 31, 2008 and (b) the Borrower’s quarterly report on Form 10-Q for the fiscal quarter ended September 30, 2009 as filed with the Securities and Exchange Commission.

 

“ Disposition ” or “ Dispose ” means the sale, transfer or other disposition (including any sale and leaseback transaction), in each case for consideration in any single transaction or series of related transactions in excess of $25,000,000 (as determined reasonably in good faith by the Borrower), by any Person of any Property (including any equity interests owned by such Person, or any notes or accounts receivable or any rights and claims associated therewith) of such Person (or the granting of any option or other right to do any of the foregoing).

 

“ Duration Fee ” is defined in Section 2.05(c).

 

“ Effective Date ” means the date this Agreement becomes effective in accordance with Section 4.01.

 

“ Effective Date Specified Representations ” means the representations and warranties set forth in Sections 5.01(a), 5.02, 5.03 (other than the first sentence thereof and clause (i)(B) of the second sentence thereof), 5.12 and 5.18.

 

“ Environmental Laws ” is defined in Section 5.15.

 

“ Environmental Liability ” has the meaning specified in Section 9.06(b).

 

“ Equity Interests ” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire such equity interest.

 

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“ Equity Issuance ” means any issuance by the Borrower of any Equity Interest other than pursuant to any director or employee stock ownership plan or any other employee compensation plan.

 

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any rule or regulation issued thereunder.

 

“ Euro Facility ” means the €650,000,000 Facility Agreement dated as of February 7, 2005 by and among the Borrower, the Subsidiaries of the Borrower party thereto, Citibank International plc, as agent, and the financial institutions parties thereto as lenders, as the same may be supplemented, modified and amended from time to time, provided that, in each case, the principal amount of the credit committed thereunder is not increased without the consent of the Required Lenders except as contemplated by Section 6.19(b).  References to any specific section of the Euro Facility shall be deemed to refer to the corresponding provision in the Euro Facility as modified, amended, renewed or refinanced from time to time.

 

“ Eurodollar Advance ” means an Advance which, except as otherwise provided in Section 2.12, bears interest at the applicable Eurodollar Rate.

 

“ Eurodollar Base Rate ” means, with respect to a Eurodollar Advance for the Interest Period applicable to such Eurodollar Advance, the applicable British Bankers’ Association Interest Settlement Rate for deposits in U.S. dollars appearing on Reuters LIBOR01 Page as of 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period, and having a maturity equal to such Interest Period, provided that, (i) if Reuters LIBOR01 Page is not available to the Administrative Agent for any reason, the applicable Eurodollar Base Rate for the relevant Interest Period shall instead be the applicable British Bankers’ Association Interest Settlement Rate for deposits in U.S. dollars as reported by any other generally recognized financial information service as of 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period, and having a maturity equal to such Interest Period, and (ii) if no such British Bankers’ Association Interest Settlement Rate is available to the Administrative Agent, the applicable Eurodollar Base Rate for the relevant Interest Period shall instead be the rate determined by the Administrative Agent to be the rate at which the Administrative Agent offers to place deposits in U.S. dollars with first class banks in the London interbank market at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Interest Period, in the approximate amount of the Administrative Agent’s relevant Eurodollar Loan and having a maturity equal to such Interest Period.

 

“ Eurodollar Loan ” means a Loan which, except as otherwise provided in Section 2.12, bears interest at the applicable Eurodollar Rate.

 

“ Eurodollar Rate ” means, with respect to a Eurodollar Advance for the relevant Interest Period, the sum of (a) the quotient of (i) the Eurodollar Base Rate applicable to such Interest Period, divided by (ii) one minus the Reserve Requirement (expressed as a decimal) applicable to such Interest Period, plus (b) the Applicable Margin for Eurodollar Advances.

 

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“ Excluded Indebtedness ” means Indebtedness of the Borrower or any of its Subsidiaries having an outstanding principal amount not in excess of $50,000,000 in the aggregate for all such Indebtedness.

 

“ Excluded Taxes ” means, in the case of each Lender and the Administrative Agent, taxes imposed on its overall net income, and franchise taxes imposed on it, by (i) the jurisdiction under the laws of which such Lender or the Administrative Agent is incorporated or organized or (ii) the jurisdiction in which the Administrative Agent’s or such Lender’s principal executive office or such Lender’s applicable Lending Installation is located.

 

“ Exhibit ” refers to an exhibit to this Agreement, unless another document is specifically referenced.

 

“ Existing Credit Agreement ” means the $400,000,000 Three-Year Credit Agreement dated as of December 4, 2009 among the Borrower, Citibank, N.A., as agent, and the lenders party thereto, as amended, restated, supplemented or otherwise modified from time to time.  References to any specific section of the Existing Credit Agreement shall be deemed to refer to the corresponding provision in the Existing Credit Agreement as modified, amended, renewed or refinanced from time to time.

 

“ FATCA ” means Section 1471 through 1474 of the Code, as in effect on the date hereof, and any applicable Treasury regulations or published administrative guidance promulgated thereunder.

 

“ Federal Funds Effective Rate ” means, for any day, an interest rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations at approximately 10:00 a.m. (New York time) on such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by the Administrative Agent in its sole discretion.

 

“ Fee Letter ” means the Fee Letter dated as of July 11, 2010 from Credit Suisse AG, Credit Suisse Securities (USA) LLC and Morgan Stanley Senior Funding, Inc. to the Borrower.

 

“ Financial Statements ” is defined in Section 4.02(h).

 

“ Fiscal Quarter ” means each of the four three-month accounting periods comprising a Fiscal Year.

 

“ Fiscal Year ” means the twelve-month accounting period ending December 31 of each year.

 

“ Foreign Corrupt Practices Act ” is defined in Section 5.21.

 

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“ Foreign Subsidiary ” means a Subsidiary of the Borrower which is not organized under the laws of the United States of America or any political subdivision thereof.

 

“ Fund ” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

 

“ Funded Target Attainment Percentage ” has the meaning set forth in Section 430(d)(2) of the Code or Section 303(d)(2) of ERISA.

 

“ Governmental Authority ” means any government (foreign or domestic) or any state or other political subdivision thereof or any governmental body, agency, authority, department or commission (including without limitation any taxing authority or political subdivision) or any instrumentality or officer thereof (including, without limitation, any court or tribunal and any board of insurance, insurance department or insurance commissioner) exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any corporation, partnership or other entity directly or indirectly owned or controlled by or subject to the control of any of the foregoing.

 

“ Hazardous Materials ” is defined in Section 5.15.

 

“ Hedging Agreement ” means any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement and all other similar agreements or arrangements designed to alter the risks of any Person arising from fluctuations in interest rates, currency values or commodity prices.

 

“ Immaterial Subsidiaries ” means one or more Subsidiaries of the Borrower, the Consolidated total assets, Consolidated revenues and Consolidated net operating income of which, in the aggregate, do not exceed three percent (3%) of the Consolidated total assets, Consolidated revenues and Consolidated net operating income, respectively, of the Borrower and its Subsidiaries, in each case determined as of the end, or for, as the case may be, the period of four Fiscal Quarters most recently ended for which financial statements have been or are required to have been delivered pursuant to Section 6.01(a) or Section 6.01(b).

 

“ Indebtedness ” of a Person means, without duplication, (a) such Person’s obligations for borrowed money, (b) obligations of such Person representing the deferred purchase price of Property or services (other than accounts payable arising in the ordinary course of such Person’s business payable on terms customary in the trade), (c) such Person’s obligations created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (d) such Person’s obligations which are evidenced by bonds, notes, debentures, acceptances, or similar instruments, (e) Capitalized Lease Obligations of such Person, (f) Contingent Obligations of such Person, (g) obligations, contingent or otherwise, for which such Person is obligated pursuant to

 

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or in respect of Letters of Credit or bankers’ acceptances, (h) such Person’s obligations under Hedging Agreements to the extent required to be reflected on a balance sheet of such Person, (i) repurchase obligations or liabilities of such Person with respect to accounts or notes receivable sold by such Person, and (j) all Indebtedness and other obligations referred to in clauses (a) through (i) above secured by (or for which the holder of such Indebtedness or other obligations has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person or payable out of the proceeds or production from property of such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness or other obligations.

 

“ Information ” is defined in Section 9.11.

 

“ Interest Period ” means, with respect to a Eurodollar Advance, a period of one, two, three or six months commencing on a Business Day selected by the Borrower pursuant to this Agreement.  An Interest Period of one, two, three or six months shall end on (but exclude) the day which corresponds numerically to such date one, two, three or six months thereafter; provided , however , that if there is no such numerically corresponding day in such next, second, third or sixth succeeding month, such Interest Period shall end on the last Business Day of such next, second, third or sixth succeeding month.  If an Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall end on the next succeeding Business Day; provided , however , that if said next succeeding Business Day falls in a new calendar month, such Interest Period shall end on the immediately preceding Business Day.

 

“ Knowledge ” means the actual knowledge of any fact, circumstance or condition of those officers of the Borrower, Merger Sub and Merger LLC set forth in Section 9.03 of the Parent Disclosure Letter (as defined in the Merger Agreement).

 

“ Law ” means any Federal, state, local, foreign, international or multinational treaty, constitution, statute or other law, ordinance, rule or regulation.

 

“ Lender Appointment Period ” is defined in Section 10.06.

 

“ Lenders ” means the lending institutions listed on the signature pages of this Agreement and their respective successors and assigns.

 

“ Lending Installation ” means, with respect to a Lender or the Administrative Agent, the office or branch of such Lender or the Administrative Agent listed on the signature pages hereof, on a Schedule or otherwise selected by such Lender or the Administrative Agent pursuant to Section 2.18.

 

“ Letter of Credit ” of a Person means a letter of credit or similar instrument which is issued upon the application of such Person or upon which such Person is an account party or for which such Person is in any way liable.

 

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“ Lien ” means any security interest, lien (statutory or other), mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, the interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title retention agreement).

 

“ Loan ” means, with respect to a Lender, such Lender’s loan made pursuant to Article 2 (or any conversion or continuation thereof).

 

“ Loan Documents ” means this Agreement and any Notes issued pursuant to Section 2.14 and the other documents and agreements contemplated hereby and executed by the Borrower in favor of the Administrative Agent or any Lender.

 

“ Margin Stock ” has the meaning assigned to that term under Regulation U.

 

“ Material Adverse Change ” means a Borrower Material Adverse Change or a Company Material Adverse Change.

 

“ Material Adverse Effect ” means a material adverse effect on (a) the business, Property, condition (financial or otherwise), performance, results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, (b) the ability of the Borrower to perform its obligations under the Loan Documents, or (c) the validity or enforceability of any of the Loan Documents or the rights or remedies of the Administrative Agent or the Lenders thereunder.

 

“ Maturity Date ” means the date that is 364 days from the Closing Date (or, if such day is not a Business Day, the next preceding Business Day).

 

“ Measurement Period ” means, at any date of determination, the most recently completed four consecutive Fiscal Quarters of the Borrower ending on or prior to such date.

 

“ Merger ” means the merger of Merger Sub with and into the Company pursuant to the Merger Agreement.

 

“ Merger Agreement ” means the Agreement and Plan of Merger dated July 11, 2010 among the Borrower, Merger LLC, Merger Sub and the Company.

 

“ Merger Cash Consideration ” means an aggregate amount of approximately $2,450,000,000 in cash to be paid to the equity holders of the Company pursuant to the Merger Agreement.

 

“ Merger Consideration ” means the Merger Cash Consideration and the Merger Equity Consideration.

 

“ Merger Equity Consideration ” means the shares of common stock of the Borrower to be delivered to the equity holders of the Company pursuant to the Merger Agreement.

 

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“ Merger LLC ” means Alps Merger LLC, a Delaware limited liability company and a wholly owned subsidiary of the Borrower.

 

“ Merger Sub ” means Alps Merger Corp., a Delaware corporation and a wholly owned subsidiary of the Borrower.

 

“ Moody’s ” means Moody’s Investors Service, Inc., or any successor thereto.

 

“ Multiemployer Plan ” means a Plan that is a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA.

 

“ Net Cash Proceed s ” means (a) in connection with any Specified Asset Sale or any Property Loss Event, the proceeds thereof received by the Borrower or any Subsidiary in the form of cash and cash equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received), net of attorneys’ fees, accountants’ fees, investment banking fees, reserves, escrows, amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the subject of such Specified Asset Sale or Property Loss Event and other customary fees and expenses actually incurred in connection therewith and net of taxes (including taxes arising out of the distribution of such cash proceeds by a Foreign Subsidiary directly to the Borrower or any Subsidiary that is not a Foreign Subsidiary) paid or reasonably estimated to be payable as a result thereof (after taking into account any tax sharing arrangements); provided that in the case of the proceeds of a Property Loss Event only, if (x) the Borrower shall deliver a certificate of an Authorized Officer to the Administrative Agent prior to receipt thereof setting forth the Borrower’s intent to reinvest such proceeds in productive assets of a kind then used or usable in the business of the Borrower and its Subsidiaries within 180 days of receipt of such proceeds and (y) no Default or Unmatured Default shall have occurred and shall be continuing at the time of such certificate or at the proposed time of the application of such proceeds, such proceeds shall not constitute Net Cash Proceeds except to the extent not so used prior to the end of such 180-day period (or, if later, 180 days after the date the Borrower or a Subsidiary has entered into a binding commitment to reinvest such proceeds (if such commitment was entered into prior to the expiration of such initial 180-day period)), at which time such proceeds shall be deemed to be Net Cash Proceeds and provided further that no proceeds of any Specified Asset Sale shall constitute Net Cash Proceeds except to the extent in excess of $10,000,000 for such Specified Asset Sale and $250,000,000 in the aggregate for all such Specified Asset Sales and (b) in connection with any Equity Issuance or any Specified Debt Incurrence, the cash proceeds received by the Borrower or any Subsidiary from such issuance or incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions, escrows and other customary fees and expenses actually incurred in connection therewith and net of taxes (including taxes arising out of the distribution of such cash proceeds by a Foreign Subsidiary directly to the Borrower or any Subsidiary that is not a Foreign Subsidiary) paid or reasonably estimated to be payable as a result thereof (after taking into account any tax sharing arrangements).

 

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“ Non-U.S. Lender ” is defined in Section 3.05(d).

 

“ Note ” is defined in Section 2.14.

 

“ Notice ” is defined in Section 13.01.

 

“ Obligations ” means all unpaid principal of and accrued and unpaid interest on the Loans, all accrued and unpaid fees and all expenses, reimbursements, indemnities and other obligations of the Borrower to the Lenders or to any Lender, the Administrative Agent or any indemnified party arising under the Loan Documents.

 

“ Other Taxes ” is defined in Section 3.05(b).

 

“ Outstanding Credit Exposure ” means, as to any Lender at any time, the aggregate principal amount of its Loans outstanding at such time.

 

“ Participants ” is defined in Section 12.02(a).

 

“ Payment Date ” means the last Business Day of each March, June, September and December.

 

“ PBGC ” means the Pension Benefit Guaranty Corporation, or any successor thereto.

 

“ Permitted Assignee ” means each Person identified in writing by the Borrower to the Arrangers on the date of execution of the Commitment Letter.

 

“ Person ” means any natural person, corporation, firm, joint venture, partnership, association, enterprise, limited liability company, trust or other entity or organization, or any government or political subdivision or any agency, department or instrumentality thereof.

 

“ Plan ” means an “employee pension benefit plan,” as defined in Section 3(2) of ERISA, which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code, as to which the Borrower or any member of the Controlled Group may have any liability.

 

“ Platform ” is defined in Section 13.01.

 

“ Prepayment Event ” means any Specified Asset Sale, any Property Loss Event, any Specified Debt Incurrence and any Equity Issuance.

 

“ Pricing Schedule ” means the Schedule attached hereto identified as such.

 

“ Prime Rate ” means mean the rate of interest per annum announced from time to time by Credit Suisse AG (or any successor to Credit Suisse AG in its capacity as Administrative Agent) as its prime commercial lending rate in effect at its principal office in New York City.  The

 

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Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer.

 

“ Pro Forma Financials ” is defined in Section 4.02(i).

 

“ Property ” of a Person means any and all property, whether real, personal, tangible, intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.

 

“ Property Loss Event ” means any loss of or damage to property or assets of, or any taking of the property or assets of, the Borrower or its Subsidiaries, for which such Person receives insurance proceeds (other than business interruption insurance) or other compensation.

 

“ pro rata ” means, when used with respect to a Lender, and any described aggregate or total amount, an amount equal to such Lender’s pro rata share or portion based on its percentage of the Aggregate Commitment or if the Aggregate Commitment has been terminated, its percentage of the Aggregate Outstanding Credit Exposure.

 

“ Purchasers ” is defined in Section 12.03(a).

 

“ Regulation D ” means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor thereto or other regulation or official interpretation of said Board of Governors relating to reserve requirements applicable to depositary institutions.

 

“ Regulation U ” means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors relating to the extension of credit by banks and certain other Persons for the purpose of purchasing or carrying margin stocks applicable to member banks of the Federal Reserve System and certain other Persons.

 

“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the respective partners, directors, trustees, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

 

“ Release ” is defined in the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. 39601 et seq.  “ Released ” shall have a corresponding meaning.

 

“ Repayment Date ” is defined in Section 2.02.

 

“ 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 has by regulation waived the requirement of Section 4043(a) of ERISA that it be notified within thirty (30) days of the occurrence of such event; provided , that a failure to meet the minimum funding standard of Section 412 or 430 of the Code or Section 302 of

 

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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(c) of the Code.

 

“ Required Lenders ” means Lenders in the aggregate having more than 50% of the Aggregate Commitment or, if the Aggregate Commitment has been terminated, Lenders in the aggregate holding more than 50% of the Aggregate Outstanding Credit Exposure; provided that if any Lender shall be a Defaulting Lender at such time, there shall be excluded from the determination of Required Lenders at such time (a) the unused Commitment of such Defaulting Lender at such time and (b) Outstanding Credit Exposure of such Lender at such time.

 

“ Reserve Requirement ” means, with respect to an Interest Period, the maximum aggregate reserve requirement (including all basic, supplemental, marginal and other reserves) which is imposed under Regulation D on Eurocurrency liabilities.

 

“ Risk-Based Capital Guidelines ” is defined in Section 3.02.

 

“ S&P ” means Standard and Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., or any successor thereto.

 

“ Schedule ” refers to a specific schedule to this Agreement, unless another document is specifically referenced.

 

“ Senior Notes ” means the up to $1,500,000,000 in aggregate principal amount of senior unsecured notes of the Borrower issued in a public offering or in a Rule 144A or other private placement.

 

“ Section ” means a numbered section of this Agreement, unless another document is specifically referenced.

 

“ Single Employer Plan ” means a Plan other than a Multiemployer Plan.

 

“ Solvent ” and “ Solvency ” mean, with respect to the Borrower and its Subsidiaries, on a consolidated basis, on any date of determination, that on such date (a) the Fair Value (as defined below) of the property of the Borrower and its Subsidiaries, on a consolidated basis, is greater than the total amount of liabilities, including contingent liabilities, of the Borrower and its Subsidiaries, on a consolidated basis, (b) the Present Fair Salable Value (as defined below) of the assets of the Borrower and its Subsidiaries, on a consolidated basis, is not less than the amount that will be required to pay the probable liability of the Borrower and its Subsidiaries on their debts as they become absolute and matured, (c) the Borrower and its Subsidiaries do not intend to, and do not believe that they will, incur debts or liabilities beyond their ability to pay such debts and liabilities as they mature, (d) the Borrower and its Subsidiaries are not engaged in business or a transaction, and are not about to engage in business or a transaction, for which the Borrower’s and its Subsidiaries’ property, on a consolidated basis, would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Borrower and its Subsidiaries and the Company and its Subsidiaries are

 

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engaged in on the date hereof, and (e) the Borrower and its Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business.  The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.  For the purpose hereof, “ Fair Value ” means  the amount at which the aggregate assets of the Borrower and its Subsidiaries would change hands between a willing buyer and a willing seller within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, neither being under any compulsion to act, with equity to both.  “ Present Fair Salable Value ” means the amount that may be realized if the aggregate assets of the Borrower and its Subsidiaries are sold with reasonable promptness in an arm’s length transaction under present conditions for the sale of assets of comparable business enterprises.

 

“ Specified Asset Sale ” means, any Specified Disposition by the Borrower or any Subsidiary other than (a) Specified Dispositions as defined in clause (a) of the definition thereof in the ordinary course of business, (b) Specified Dispositions to the Borrower or any Subsidiary, (c) Specified Dispositions permitted under Section 6.16(a) through Section 6.16(d) and (d) Specified Dispositions of premium finance receivables pursuant to any Cananwill Securitization.

 

“ Specified Debt Incurrence ” means any incurrence of Indebtedness of the type set forth in clause (a) or (d) of the definition thereof (including, without limitation, the Senior Notes) by the Borrower or any Subsidiary other than (i) any Indebtedness owed to the Borrower or any of its Subsidiaries, (ii) amounts incurred or outstanding under the Continuing Debt Instruments in the amounts specified in Section 4.02(g), (iii) Indebtedness under the Term Loan Credit Agreement and (iv) Excluded Indebtedness.

 

“ Specified Disposition ” means, with respect to any Person, (a) the sale, transfer or other disposition (including any sale and leaseback transaction by such Person) of any Property (including any equity interests owned by such Person, or any notes or accounts receivable or any rights and claims associated therewith) of such Person (or the granting of any option or other right to do any of the foregoing) and (b) any issuance of Equity Interests by the Subsidiary of such Person.

 

“ Subsequent Merger ” the merger of the surviving corporation in the Merger with and into Merger LLC, with Merger LLC surviving as a Wholly Owned Subsidiary of Borrower.

 

“ Subsidiary ” of a Person means (a) any corporation more than 50% of the outstanding securities having ordinary voting power of which shall at the time be owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, or (b) any partnership, association, joint venture, limited liability company or similar business organization more than 50% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled.  Unless otherwise expressly provided, all references herein to a “ Subsidiary ” shall mean a Subsidiary of the Borrower.

 

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“ Substantial Portion ” means, with respect to the Property of the Borrower and its Subsidiaries, Property which (a) represents more than 10% of the consolidated assets of the Borrower and its Subsidiaries, as would be shown in the consolidated financial statements of the Borrower and its Subsidiaries as at the end of the quarter next preceding the date on which such determination is made, or (b) is responsible for more than 10% of the consolidated net sales or of the consolidated net income of the Borrower and its Subsidiaries for the 12-month period ending as of the end of the quarter next preceding the date of determination.

 

“ Syndication Agent ” means Morgan Stanley Senior Funding, Inc. and its successors, in its capacity as “Syndication Agent”.

 

“ Taxes ” means any and all present or future taxes, duties, levies, imposts, deductions, charges or withholdings, and any and all liabilities with respect to the foregoing, but excluding Excluded Taxes and Other Taxes.

 

“ Term Credit Agreement ” means the Three-Year Term Credit Agreement dated as of the date hereof among Aon Corporation, as borrower, Credit Suisse AG, as administrative agent, and the lenders and agents party thereto as it may be amended or modified and in effect from time to time to the extent permitted hereunder.

 

“ Term Loan Documents ” means the “Loan Documents” as defined in the Term Credit Agreement.

 

“ Term Loans ” means the “Loans” as defined in the Term Credit Agreement.

 

“ Termination Event ” means, with respect to any Plan which is subject to Title IV of ERISA, (a) a Reportable Event, (b) the withdrawal of the Borrower or any other member of the Controlled Group from such Plan during a plan year in which the Borrower or any other member of the Controlled Group was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or was deemed such under Section 4068(f) of ERISA, the conditions for imposition of a lien under Section 303(d) of ERISA shall have been met, (d) a determination that any Plan is in “at risk” status (within the meaning of Section 303 of ERISA), (e) the termination of such Plan, the filing of a notice of intent to terminate such Plan or the treatment of an amendment of such Plan as a termination under Section 4041 of ERISA, (f) the institution by the PBGC of proceedings to terminate such Plan or (g) any event or condition which might constitute grounds under Section 4042 of ERISA for the termination of, or appointment of a trustee to administer, such Plan.

 

“ Transactions ” means (i) the Merger and the Subsequent Merger, including the payment of the Merger Consideration, (ii) the execution, delivery and performance of this Agreement, including the funding of the Loans hereunder and the application of the proceeds thereof, (iii) the execution, delivery and performance of the Term Credit Agreement, (iv) the issuance of the Senior Notes, and, to the extent the Borrower is unable to issue the Senior Notes on or prior to the date the Merger is consummated, the funding of the Term Loans and the application of the proceeds thereof and (v) payment of the Transaction Costs.

 

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“ Transactions Costs ” means fees and expenses in an aggregate amount not to exceed $50,000,000 in connection with the Transactions.

 

“ Transferee ” is defined in Section 12.04.

 

“ Type ” means, with respect to any Advance, its nature as an Alternate Base Rate Advance or a Eurodollar Advance.

 

“ Unmatured Default ” means an event which but for the lapse of time or the giving of notice, or both, would constitute a Default.

 

“ USA PATRIOT Act ” shall mean The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub.  L.  No.  107-56 (signed into law October 26, 2001)).

 

“ Wholly Owned Subsidiary ” of a Person means (a) any Subsidiary all of the outstanding voting securities of which shall at the time be owned or controlled, directly or indirectly, by such Person or one or more Wholly Owned Subsidiaries of such Person, or by such Person and one or more Wholly Owned Subsidiaries of such Person, or (b) any partnership, association, joint venture, limited liability company or similar business organization 100% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled.  Unless otherwise provided, all references herein to a “ Wholly Owned Subsidiary ” shall mean a Wholly Owned Subsidiary of the Borrower.

 

The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms.  In computations of periods of time from a specified date to a later specified date, the word “ from ” means “ from and including ” and the words “ to ” and “ until ” each mean “ to but excluding ”.

 

ARTICLE 2
THE CREDITS

 

Section 2.01 .  Commitment.  Each Lender severally agrees, on the terms and conditions set forth in this Agreement, to make Loans to the Borrower on the Closing Date in a principal amount not to exceed the amount of its Commitment.  Amounts borrowed under this Section 2.01 and repaid or prepaid may not be reborrowed.

 

Section 2.02.  Required Payments .  All unpaid Obligations shall be paid in full by the Borrower on the Maturity Date.

 

Section 2.03.  Ratable Loans .  Each Advance hereunder shall consist of Loans made from the several Lenders ratably in proportion to the ratio that their respective Commitments bear to the Aggregate Commitment.

 

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Section 2.04.  Types of Advances.  The Advances may be Alternate Base Rate Advances or Eurodollar Advances, or a combination thereof, selected by the Borrower in accordance with Section 2.09 and Section 2.10.

 

Section 2.05.  Undrawn Commitment Fee / Duration Fees / Termination or Reductions of Commitments.

 

(a)        The Borrower agrees to pay to the Administrative Agent for the account of each Lender a commitment fee (the “ Commitment Fee ”), which shall accrue at 0.25% per annum on the daily amount of the unused Commitment of such Lender during the period from and including August 25, 2010 to but excluding the earlier to occur of (i) the termination of the Commitments hereunder and (ii) the Closing Date and shall be payable on such earlier date.

 

(b)        All unused Commitments after giving effect to the Advances on the Closing Date shall automatically terminate.  In addition, the Commitments shall automatically terminate in the event that the Closing Date does not occur on or before the earlier of (i) 5:00 p.m., New York City time, on March 31, 2011 or (ii) the date on which the Merger Agreement terminates or either party thereto publicly announces its intention not to proceed with the Acquisition.

 

(c)        The Borrower agrees to pay to the Administrative Agent ratably for the account of each Lender a duration fee (the “ Duration Fee ”) in an amount equal to (i) 0.75% of the aggregate principal amount of the Loans outstanding on the date which is 90 days after the Closing Date, due and payable on such 90th day (or if such day is not a Business Day, the next Business Day); (ii) 1.25% of the aggregate principal amount of the Loans outstanding on the date which is 180 days after the Closing Date, due and payable on such 180th day (or if such day is not a Business Day, the next Business Day); and (iii) 1.75% of the aggregate principal amount of the Loans outstanding on the date which is 270 days after the Closing Date, due and payable on such 270th day (or if such day is not a Business Day, the next Business Day).

 

(d)        At any time prior to the Closing Date, the Borrower may permanently reduce the Aggregate Commitment in whole, or in part ratably among the Lenders in a minimum aggregate amount of $10,000,000 or any integral multiple of $1,000,000 in excess thereof, upon at least three (3) Business Days’ written notice to the Administrative Agent, which notice shall specify the amount of any such reduction.

 

(e)        Upon the occurrence of any Prepayment Event prior to the Closing Date, the Commitments shall automatically be reduced in an aggregate amount equal to 100% of the Net Cash Proceeds of such Prepayment Event.  The Borrower shall notify the Administrative Agent of the occurrence of any Prepayment Event at least two Business Days prior to the consummation of such Prepayment Event and such notice shall be accompanied by a reasonably detailed calculation of the Net Cash Proceeds thereof.  Promptly following receipt of such notice, the Administrative Agent shall advise the Lenders of the occurrence of the Prepayment Event and the Net Cash Proceeds thereof.  Any termination or reduction of the Commitments shall be permanent.  Each reduction of the Commitments shall be made ratably among the Lenders in accordance with their respective Commitments.

 

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(f)         The Borrower agrees to pay to the Administrative Agent and the other parties thereto the fees payable in the amounts and at the times set forth in the Fee Letter, the Commitment Letter and the Co-Arranger Commitment Letter, except that any “ticking fee” payable pursuant to the Fee Letter or the Co-Arranger Commitment Letter with respect to the Commitments shall, from the Effective Date, be replaced with the Commitment Fee.

 

Section 2.06.  Minimum Amount of Each Advance.  Each Eurodollar Advance shall be in the minimum amount of $10,000,000 (and in multiples of $1,000,000 if in excess thereof), provided, however, that in no event shall more than six (6) Eurodollar Advances be permitted to be outstanding at any time.

 

Section 2.07.  Optional Principal Payments.  The Borrower may from time to time pay, without penalty or premium, all outstanding Alternate Base Rate Advances, or, in a minimum aggregate amount of $10,000,000 or any integral multiple of $1,000,000 in excess thereof, any portion of the outstanding Alternate Base Rate Advances upon notice to the Administrative Agent by 11:00 a.m. (New York time) on the Business Day of the proposed prepayment.  The Borrower may from time to time pay, subject to the payment of any funding indemnification amounts required by Section 3.04 but without penalty or premium, all outstanding Eurodollar Advances, or, in a minimum aggregate amount of $10,000,000 or any integral multiple of $1,000,000 in excess thereof, any portion of an outstanding Eurodollar Advance, upon three (3) Business Days’ prior notice to the Administrative Agent.

 

Section 2.08 .  Mandatory Prepayments .

 

(a)        Within 5 Business Days of the receipt of any Net Cash Proceeds from any Prepayment Event occurring on or after the Closing Date, the Borrower shall prepay the Loans in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds.  The Borrower shall effect such prepayment within 5 Business Days of receipt of such Net Cash Proceeds.  The Borrower shall notify the Administrative Agent of the occurrence of any Prepayment Event at least two Business Days prior to the consummation of such Prepayment Event and such notice shall be accompanied by a reasonably detailed calculation of the Net Cash Proceeds thereof. Promptly following receipt of such notice, the Administrative Agent shall advise the Lenders of the occurrence of the Prepayment Event and the Net Cash Proceeds thereof.

 

(b)        Each prepayment of an Advance shall be applied ratably to the Loans included in the prepaid Advance.  Prepayments shall be accompanied by accrued interest to the extent required by Section 2.16 and compensation for break funding to the extent required by Section 3.04.

 

Section 2.09.  Method of Selecting Types and Interest Periods for New Advances.  The Borrower shall select the Type of Advance and, in the case of each Eurodollar Advance, the Interest Period applicable thereto from time to time.  The Borrower shall give the Administrative Agent irrevocable notice (a “ Borrowing Notice ”) not later than 11:00 a.m. (New York time) on the Business Day prior to the Closing Date of each Alternate Base Rate Advance and at least three (3) Business Days before the Closing Date for each Eurodollar Advance, specifying:

 

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(a)        the Borrowing Date of such Advance, which shall be the Closing Date and a Business Day;

 

(b)        the aggregate amount of such Advance;

 

(c)        the Type of Advance selected; and

 

(d)        in the case of each Eurodollar Advance, the Interest Period applicable thereto.

 

Not later than 11:00 a.m. (New York time) on the Closing Date, each Lender shall make available its Loan or Loans, in funds immediately available in New York, to the Administrative Agent at its address specified pursuant to Article 13.  The Administrative Agent will make the funds so received from the Lenders available to the Borrower at the Administrative Agent’s aforesaid address.

 

Section 2.10 .   Conversion and Continuation of Outstanding Advances.  Each Alternate Base Rate Advance shall continue as an Alternate Base Rate Advance unless and until such Alternate Base Rate Advance is converted into a Eurodollar Advance pursuant to this Section 2.10 or is repaid in accordance with Section 2.07.  Each Eurodollar Advance shall continue as a Eurodollar Advance until the end of the then applicable Interest Period therefor, at which time such Eurodollar Advance shall be automatically converted into an Alternate Base Rate Advance unless (a) such Eurodollar Advance is or was repaid in accordance with Section 2.07 or (b) the Borrower shall have given the Administrative Agent a Conversion/Continuation Notice (as defined below) requesting that, at the end of such Interest Period, such Eurodollar Advance continue as a Eurodollar Advance for the same or another Interest Period (or, if no Interest Period is specified in such Conversion/Continuation Notice, continuation shall be for a one (1) month Interest Period).  Subject to the terms of Section 2.06, the Borrower may elect from time to time to convert all or any part of an Alternate Base Rate Advance into a Eurodollar Advance.  Subject to the payment of any funding indemnification amounts required by Section 3.04, the Borrower may elect from time to time to convert all or any part of a Eurodollar Advance into an Alternate Base Rate Advance.  The Borrower shall give the Administrative Agent irrevocable notice (a “ Conversion/Continuation Notice ”) of each (x) conversion of an Alternate Base Rate Advance into a Eurodollar Advance or the continuation of a Eurodollar Advance as a new Eurodollar Advance not later than 11:00 a.m. (New York time) at least three (3) Business Days prior to the date of the requested conversion or continuation and (y) conversion of a Eurodollar Advance into an Alternate Base Rate Advance, not later than 11:00 a.m. (New York time) on the date of the requested conversion, in each case specifying:

 

(a)        the requested date of such conversion or continuation, which shall be a Business Day;

 

(b)        the aggregate amount and Type of the Advance which is to be converted or continued; and

 

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(c)        the amount and Type(s) of Advance(s) into which such Advance is to be converted or continued and, in the case of a conversion into or continuation of a Eurodollar Advance, the duration of the Interest Period applicable thereto, which shall end on or prior to the Maturity Date.

 

Section 2.11 .  Interest Rate, Etc.  Each Alternate Base Rate Advance shall bear interest on the outstanding principal amount thereof, for each day from and including the date such Advance is made or is converted from a Eurodollar Advance into an Alternate Base Rate Advance pursuant to Section 2.10, to but excluding the date it is paid or is converted into a Eurodollar Advance pursuant to Section 2.10 hereof, at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin with respect to Alternate Base Rate Advances, in each case for such day.  Changes in the rate of interest on that portion of any Advance maintained as an Alternate Base Rate Advance will take effect simultaneously with each change in the Alternate Base Rate.  Each Eurodollar Advance shall bear interest on the outstanding principal amount thereof from and including the first day of the Interest Period applicable thereto to (but not including) the last day of such Interest Period at the Eurodollar Rate determined by the Administrative Agent as applicable to such Eurodollar Advance based upon the Borrower’s selections under Section 2.09 and Section 2.10 and otherwise in accordance with the terms hereof.  No Interest Period may end after the Maturity Date.

 

Section 2.12 .  Rates Applicable After Default.  Notwithstanding anything to the contrary contained in Section 2.09 or Section 2.10, no Advance may be made as, converted into or continued as a Eurodollar Advance (except with the consent of the Administrative Agent and the Required Lenders) when any Default or Unmatured Default has occurred and is continuing.  During the continuance of a Default the Required Lenders may, at their option, by notice to the Borrower (which notice may be revoked at the option of the Required Lenders notwithstanding any provision of Section 8.02 requiring unanimous consent of the Lenders to changes in interest rates), declare that (a) each Eurodollar Advance shall bear interest for the remainder of the applicable Interest Period at the Eurodollar Rate otherwise applicable to such Interest Period plus 2% per annum and (b) each Alternate Base Rate Advance shall bear interest at a rate per annum equal to the Alternate Base Rate in effect from time to time plus the Applicable Margin for Alternate Base Rate Advances plus 2% per annum provided that, during the continuance of a Default under Section 7.01(f) or Section 7.01(g), the interest rates set forth in clauses (a) and (b) above shall be applicable to all Advances without any election or action on the part of the Administrative Agent or any Lender.

 

Section 2.13 .  Method of Payment.  All payments of the Obligations hereunder shall be made, without setoff, deduction or counterclaim, in immediately available funds to the Administrative Agent at the Administrative Agent’s address specified pursuant to Article 13, or at any other Lending Installation of the Administrative Agent specified in writing by the Administrative Agent to the Borrower, by noon (New York time) on the date when due and shall be applied ratably by the Administrative Agent among the Lenders entitled to such payments.  Each payment delivered to the Administrative Agent for the account of any Lender shall be delivered promptly by the Administrative Agent to such Lender in the same type of funds that

 

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the Administrative Agent received at its address specified pursuant to Article 13 or at any Lending Installation specified in a notice received by the Administrative Agent from such Lender.

 

Section 2.14 .  Noteless Agreement; Evidence of Indebtedness.  Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

 

(a)        The Administrative Agent shall also maintain accounts in which it will record (i) the amount of each Loan made hereunder, the Type thereof and the Interest Period with respect thereto, (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) the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof.

 

(b)        The entries maintained in the accounts maintained pursuant to paragraphs (a) and (b) above shall be prima facie evidence of the existence and amounts of the Obligations therein recorded; provided , however , that the failure of the Administrative Agent or any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Obligations in accordance with their terms.

 

(c)        Any Lender may request that its Loans be evidenced by a promissory note in substantially the form of Exhibit A (including any amendment, modification, renewal or replacement thereof, a “ Note ”).  In such event, the Borrower shall prepare, execute and deliver to such Lender such Note payable to the order of such Lender.  Thereafter, the Loans evidenced by such Note and interest thereon shall at all times (including after any assignment pursuant to Section 12.03) be represented by one or more Notes payable to the order of the payee named therein or any assignee pursuant to Section 12.03, except to the extent that any such Lender or assignee subsequently returns any such Note for cancellation and requests that such Loans once again be evidenced as described in paragraphs (a) and (b) above.  Upon receipt of an affidavit of an officer of any Lender as to the loss, theft, destruction or mutilation of such Lender’s Note, and, in the case of any such loss, theft, destruction or mutilation, upon cancellation of such Note, the Borrower will issue, in lieu thereof, a replacement Note in the same principal amount thereof and otherwise of like tenor.

 

Section 2.15 .  Telephonic Notices.  The Borrower hereby authorizes the Lenders and the Administrative Agent to extend, convert or continue Advances, effect selections of Types of Advances and to transfer funds based on telephonic notices made by any person or persons the Administrative Agent or any Lender in good faith believes to be acting on behalf of the Borrower, it being understood that the foregoing authorization is specifically intended to allow Borrowing Notices and Conversion/Continuation Notices to be given telephonically; provided that the Borrower delivers promptly to the Administrative Agent a written confirmation of each telephonic notice signed by an Authorized Officer.  If the written confirmation differs in any

 

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material respect from the action taken by the Administrative Agent and the Lenders, the records of the Administrative Agent and the Lenders shall govern absent manifest error.

 

Section 2.16 .  Interest Payment Dates; Interest and Fee Basis.  Interest accrued on each Alternate Base Rate Advance shall be payable on each Payment Date, commencing with the first such date to occur after the date hereof, on any date on which an Alternate Base Rate Advance is prepaid (with respect to the principal so prepaid), whether due to acceleration or otherwise, and at maturity.  Interest accrued on that portion of the outstanding principal amount of any Alternate Base Rate Advance converted into a Eurodollar Advance on a day other than a Payment Date shall be payable on the date of conversion.  Interest accrued on each Eurodollar Advance shall be payable on the last day of its applicable Interest Period, on any date on which the Eurodollar Advance is prepaid (with respect to the principal so prepaid), whether by acceleration or otherwise, and at maturity.  Interest accrued on each Eurodollar Advance having an Interest Period longer than three (3) months shall also be payable on the last day of each three-month interval during such Interest Period.  Interest with respect to Eurodollar Loans, Commitment Fees and Alternate Base Rate Loans for which interest is not determined by reference to the Prime Rate shall be calculated for actual days elapsed on the basis of a 360 day year.  Interest with respect to Alternate Base Rate Loans for which interest is determined by reference to the Prime Rate shall be calculated for the actual days elapsed on the basis of a 365 or 366 day year, as applicable.  Interest shall be payable for the day an Advance is made but not for the day of any payment.  If any payment of principal of or interest on an Advance shall become due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day and, in the case of a principal payment, such extension of time shall be included in computing interest in connection with such payment.

 

Section 2.17 .  Notification of Advances, Interest Rates, Prepayments and Commitment Reductions.  Promptly after receipt thereof, the Administrative Agent will notify each Lender of the contents of each Aggregate Commitment reduction notice, Borrowing Notice, Conversion/Continuation Notice, and repayment notice received by it hereunder.  The Administrative Agent will notify each Lender of the Eurodollar Rate applicable to each Eurodollar Advance promptly upon determination of such interest rate and will give each Lender prompt notice of each change in the Alternate Base Rate.

 

Section 2.18.  Lending Installations .  Each Lender may book its Loans at any Lending Installation selected by such Lender and may change its Lending Installation from time to time.  All terms of this Agreement shall apply to any such Lending Installation and the Loans and any Notes issued hereunder shall be deemed held by each Lender for the benefit of any such Lending Installation.  Each Lender may, by written notice to the Administrative Agent and the Borrower in accordance with Article 13, designate replacement or additional Lending Installations through which Loans will be made by it will be issued by it and for whose account Loan payments are to be made.

 

Section 2.19 .  Non-Receipt of Funds by the Administrative Agent.  Unless the Borrower or a Lender, as the case may be, notifies the Administrative Agent prior to the time at which it is

 

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scheduled to make payment to the Administrative Agent of (a) in the case of a Lender, the proceeds of a Loan, or (b) in the case of the Borrower, a payment of principal, interest or fees to the Administrative Agent for the account of the Lenders, that it does not intend to make such payment, the Administrative Agent may assume that such payment has been made.  The Administrative Agent may, but shall not be obligated to, make the amount of such payment available to the intended recipient in reliance upon such assumption.  If such Lender or the Borrower, as the case may be, has not in fact made such payment to the Administrative Agent, the recipient of such payment shall, on demand by the Administrative Agent, repay to the Administrative Agent the amount so made available together with interest thereon in respect of each day during the period commencing on the date such amount was so made available by the Administrative Agent until the date the Administrative Agent recovers such amount at a rate per annum equal to (i) in the case of payment by a Lender, the Federal Funds Effective Rate for such day for the first three (3) days and, thereafter, the interest rate applicable to the relevant Loan or (ii) in the case of payment by the Borrower, the interest rate applicable to the relevant Loan.

 

Section 2.20 .  Replacement of Lender.  If (a) the Borrower is required pursuant to Section 3.01, 3.02 or 3.05 to make any additional payment to any Lender, (b) any Lender’s obligation to make or continue, or to convert Alternate Base Rate Advances into, Eurodollar Advances shall be suspended pursuant to Section 3.03, or (c) any Lender is a Defaulting Lender (any Lender so affected an “ Affected Lender ”), the Borrower may elect, if such amounts continue to be charged or such suspension is still effective or such Lender continues to be a Defaulting Lender, to replace such Affected Lender as a Lender party to this Agreement, provided that no Default or Unmatured Default shall have occurred and be continuing at the time of such replacement, and provided further that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower and the Administrative Agent shall agree, as of such date, to purchase for cash the Advances at par and other Obligations due to the Affected Lender pursuant to an assignment substantially in the form of Exhibit C and to become a Lender for all purposes under this Agreement and to assume all obligations of the Affected Lender to be terminated as of such date and to comply with the requirements of Section 12.03 applicable to assignments, and (ii) the Borrower and/or the assignee shall pay to such Affected Lender in same day funds on the day of such replacement (A) all interest, fees and other amounts then accrued but unpaid to such Affected Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Affected Lender under Section 3.01, 3.02 and 3.05, and (B) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 3.04 had the Loans of such Affected Lender been prepaid on such date rather than sold to the replacement Lender.  For purposes hereof, “ Defaulting Lender ” means a Lender that has (i) defaulted in its obligation to fund any Loan within one Business Day after the date required to be funded by it or (ii) has (or whose parent company has) become the subject of a bankruptcy or insolvency proceeding or has had a receiver or conservator appointed with respect to such Lender (or such Lender’s parent company) at the direction or request of any regulatory agency or authority (or similar regulatory action has been taken with respect to such Lender or parent company of such Lender, provided that a Lender shall not become a Defaulting Lender solely as a result of either (1) the acquisition or maintenance of an ownership interest in such Lender or a Person controlling such Lender by a

 

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Governmental Authority or an instrumentality thereof or (2) the exercise of control over such Lender or Person controlling such Lender by a Governmental Authority or an instrumentality thereof incident to such ownership interest.

 

ARTICLE 3
YIELD PROTECTION; TAXES

 

Section 3.01 .  Yield Protection.  If, on or after the date of this Agreement, the adoption of any law or any governmental or quasi governmental rule, regulation, policy, guideline or directive (whether or not having the force of law), or any change in the interpretation or administration thereof by any governmental or quasi-governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender or applicable Lending Installation with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency

 

(a)        subjects any Lender or any applicable Lending Installation to any Taxes or Other Taxes, or changes the basis of taxation of payments (other than with respect to Excluded Taxes) to any Lender in respect of its Eurodollar Loans, or

 

(b)        imposes or increases or deems applicable any reserve, assessment, insurance charge, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender or any applicable Lending Installation (other than reserves and assessments taken into account in determining the interest rate applicable to Eurodollar Advances), or

 

(c)        imposes any other condition the result of which is to increase the cost to any Lender or any applicable Lending Installation of making, funding or maintaining its Eurodollar Loans, or reduces any amount receivable by any Lender or any applicable Lending Installation in connection with its Eurodollar Loans, or requires any Lender or any applicable Lending Installation to make any payment calculated by reference to the amount of Eurodollar Loans, held or interest received by it, by an amount deemed material by such Lender, and the result of any of the foregoing is to increase the cost to such Lender or applicable Lending Installation of making or maintaining its Eurodollar Loans or Commitment or to reduce the return received by such Lender or applicable Lending Installation in connection with such Eurodollar Loans or Commitment, then, within fifteen (15) days of demand by such Lender as provided in Section 3.06, the Borrower shall pay such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction in amount received.

 

Section 3.02 .  Changes in Capital Adequacy Regulations.  If a Lender determines the amount of capital required or expected to be maintained by such Lender, any Lending Installation of such Lender or any corporation controlling such Lender is increased as a result of a Change, then, within fifteen (15) days of demand by such Lender as provided in Section 3.06, the Borrower shall pay such Lender the amount necessary to compensate for any shortfall in the

 

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rate of return on the portion of such increased capital which such Lender determines is attributable to this Agreement, its Outstanding Credit Exposure or its Commitment to make Loans hereunder (after taking into account such Lender’s policies as to capital adequacy).  “ Change ” means (a) any change after the date of this Agreement in the Risk-Based Capital Guidelines or (b) any adoption of or change in any other law, governmental or quasi governmental rule, regulation, policy, guideline, interpretation, or directive (whether or not having the force of law) after the date of this Agreement which affects the amount of capital required or expected to be maintained by any Lender or any Lending Installation or any Person controlling any Lender.  “ Risk-Based Capital Guidelines ” means (a) the risk-based capital guidelines in effect in the United States on the date of this Agreement, including transition rules, and (b) the corresponding capital regulations promulgated by regulatory authorities outside the United States implementing the July 1988 report of the Basel Committee on Banking Regulation and Supervisory Practices entitled “International Convergence of Capital Measurements and Capital Standards,” including transition rules, and any amendments to such regulations adopted prior to the date of this Agreement.

 

Section 3.03 .  Availability of Types of Advances.  If any Lender determines that maintenance of its Eurodollar Loans at a suitable Lending Installation would violate any applicable law, rule, regulation, interpretation or directive, whether or not having the force of law, or if the Required Lenders determine that (a) deposits of a type and maturity appropriate to match fund Eurodollar Advances are not available or (b) the interest rate applicable to Eurodollar Advances does not accurately or fairly reflect the cost of making or maintaining Eurodollar Advances, then the Administrative Agent shall suspend the availability of Eurodollar Advances and require any affected Eurodollar Advances to be repaid or converted to Alternate Base Rate Advances, subject to the payment of any funding indemnification amounts required by Section 3.04.

 

Section 3.04 .  Funding Indemnification.  If any payment of a Eurodollar Advance occurs on a date prior to the last day of the applicable Interest Period, whether because of acceleration, prepayment or otherwise, or a Eurodollar Advance is not made on the date specified by the Borrower for any reason other than default by the Lenders, the Borrower will indemnify each Lender for any loss or cost incurred by it resulting therefrom, including, without limitation, any loss or cost in liquidating or employing deposits acquired to fund or maintain such Eurodollar Advance.

 

Section 3.05 .  Taxes.

 

(a)        Subject to applicable law, all payments by the Borrower to or for the account of any Lender or the Administrative Agent hereunder or under any Note shall be made free and clear of and without deduction for any and all Taxes.  Subject to subsection (c) below and Section 3.06, if the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to any Lender or the Administrative Agent, (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 3.05) such Lender or the Administrative

 

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Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions, (iii) the Borrower shall pay the full amount deducted to the relevant authority in accordance with applicable law and (iv) the Borrower shall furnish to the Administrative Agent the original copy of a receipt evidencing payment thereof, or other evidence reasonably acceptable to the Administrative Agent, within thirty (30) days after such payment is made.

 

(b)        In addition, the Borrower hereby agrees to pay any present or future stamp or documentary taxes and any other excise or property taxes, charges or similar levies which arise from any payment made hereunder or under any Note or from the execution or delivery of, or otherwise with respect to, this Agreement or any Note (“ Other Taxes ”).

 

(c)        The Borrower hereby agrees to indemnify the Administrative Agent and each Lender for the full amount of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed on amounts payable under this Section 3.05) paid by the Administrative Agent or such Lender and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto.  Payments due under this indemnification shall be made within thirty (30) days of the date the Administrative Agent or such Lender makes demand therefor pursuant to Section 3.06.

 

(d)        Each Lender that is not incorporated or otherwise organized under the laws of the United States of America or a state thereof (each a “ Non-U.S. Lender ”) agrees that it will, not more than ten (10) Business Days after the date of this Agreement (or, in the case of a Lender who becomes a party hereto after the date of this Agreement, the date it becomes a party hereto), deliver to each of the Borrower and the Administrative Agent two duly completed copies of United States Internal Revenue Service Form W-8BEN or W-8ECI or W-8IMY (and any required attachments), certifying in either case that such Lender is entitled to receive payments under this Agreement without deduction or withholding of an