SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Sedgwick Group plc
(Name of Issuer)
Ordinary Shares of 10 pence each and
American Depositary Shares, each representing five
Ordinary Shares and evidenced by
American Depositary Receipts
(Title of Class of Securities)
815673108 (Ordinary Shares)
315673207 (American Depositary Shares)
(CUSIP Number of Class of Securities)
GREGORY F. VAN GUNDY
MARSH & MCLENNAN COMPANIES, INC.
1166 AVENUE OF THE AMERICAS
NEW YORK, NY 10036-2774
(212) 345-5000
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
Copy to:
DAVID J. FRIEDMAN
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 735-3000
August 24, 1998
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Statement because of
Rule 13d-1(b) (3) or (4), check the following: ( )
SCHEDULE 13D
CUSIP No. 815673108 (Ordinary Shares)
315673207 (American Depository Shares)
- -----------------------------------------------------------------------------
(1) NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Marsh & McLennan Companies, Inc. (I.R.S. Identifications No. 36-
2668272)
- -----------------------------------------------------------------------------
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
N/A (a) ( ) (b) ( )
- -----------------------------------------------------------------------------
(3) SEC USE ONLY
- -----------------------------------------------------------------------------
(4) SOURCE OF FUNDS
BK
- -----------------------------------------------------------------------------
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
- -----------------------------------------------------------------------------
(6) CITIZENSHIP OR PLACE OR ORGANIZATION
State of Delaware
- -----------------------------------------------------------------------------
NUMBER OF (7) SOLE VOTING POWER
SHARES See Item 5
BENEFICIALLY -------------------------------------------------
OWNED BY (8) SHARED VOTING POWER
EACH See Item 5
REPORTING -------------------------------------------------
PERSON (9) SOLE DISPOSITIVE POWER
WITH See Item 5
-------------------------------------------------
(10) SHARED DISPOSITIVE POWER
See Item 5
- -----------------------------------------------------------------------------
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
See Item 5
- -----------------------------------------------------------------------------
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES ( )
- -----------------------------------------------------------------------------
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
50.6%
- -----------------------------------------------------------------------------
(14) TYPE OF REPORTING PERSON
CO
- -----------------------------------------------------------------------------
Item 1. Security and Issuer.
The class of equity securities to which this Schedule 13D relates is
ordinary shares of 10 pence each ("Sedgwick Shares") of Sedgwick Group plc,
a public limited company incorporated and registered in England and Wales
("Sedgwick") and American Depositary Shares of Sedgwick ("Sedgwick ADSs"),
each representing five Sedgwick Shares and evidenced by American Depositary
Receipts (collectively, the "Shares"). Sedgwick's principal executive
offices are located at Sackville House, 143-149 Fenchurch Street, London
EC3M 6BN England.
Item 2. Identity and Background.
This statement is being filed by Marsh & McLennan Companies, Inc., a
corporation organized under the laws of Delaware ("MMC").
MMC has its principal place of business located at 1166 Avenue of the
Americas, New York, New York 10036-2774. MMC is one of the world's leading
providers of professional services, including risk and insurance services,
investment management and consulting.
Schedule I attached hereto and incorporated herein by reference sets
forth, with respect to each executive officer, director and controlling
person of MMC the following information: (a) name; (b) residence or
business address; and (c) present principal occupation or employment and
the name, principal business and address of any corporation or other
organization in which such employment is conducted. Each person listed on
Schedule I, unless otherwise indicated, is a United States citizen.
None of MMC, nor to the knowledge of MMC, any executive officer,
director or controlling person of MMC (a) has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors), during
the last five years or (b) has been a party, during the last five years, to
a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The funds to be used by MMC in making its acquisition of the Shares
described herein will be obtained under the Credit Agreement, dated as of
August 24, 1998, among MMC, the Lenders Party Thereto and Morgan Guaranty
Trust Company of New York (the "Agreement"), a copy of which is attached
hereto as Exhibit 7.1. Under the Agreement, MMC may borrow up to
$2,250,000,000 in connection with the Offers (as defined below).
Item 4. Purpose of Transaction.
The purpose of MMC's entering into the agreements described herein
relating to the Shares was to facilitate MMC's offer to purchase all
outstanding Sedgwick Shares and Sedgwick ADSs. On August 24, 1998, a
proposal for an offer for all outstanding Shares of Sedgwick at a price of
225 pence per Sedgwick Share and pound sterling11.25 per Sedgwick ADS (the
"Ordinary Offer") was presented to, and approved by, the respective Boards
of Directors of MMC and Sedgwick. Following such approvals, on the morning
of August 25, 1998, MMC and Sedgwick jointly announced the terms of the
recommended Ordinary Offer. Simultaneously with the Ordinary Offer, MMC
also intends to offer to purchase the outstanding 7.25% Convertible Bonds
2008 of Sedgwick (the "Convertible Offer," together with the Ordinary
Offer, the "Offers").
Irrevocable undertakings to accept, or procure the acceptance of, the
Ordinary Offer have been received by MMC from directors of Sedgwick in
respect of securities representing 2,054,394 Sedgwick Shares, and from:
o Phillips & Drew Fund Management Limited in respect of 122,955,977
Sedgwick Shares,
o Schroder Investment Management (UK) Limited in respect of
76,732,862 Sedgwick Shares; and
o Silchester International Investors Limited in respect of
24,000,000 Sedgwick Shares.
Accordingly, MMC has received irrevocable undertakings from certain
directors and shareholders of Sedgwick to accept the Ordinary Offer in
respect of securities representing a total of 225,743,233 Sedgwick
Shares, and representing in aggregate approximately 40.7% of Sedgwick's
issued share capital, as described in the Form of Irrevocable Undertaking
which is attached hereto as Exhibit 7.2(a) and (b) and incorporated by
reference herein.
Between August 27, 1998 and August 28, 1998, J.P. Morgan Securities
Limited and Cazenove & Co., on behalf of MMC, agreed to acquire,
conditional on, amongst other things, all applicable waiting periods under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended,
having expired or been terminated by no later than September 27, 1998, a
total of 54,862,345 Sedgwick Shares at a price of 225 pence per share, as
described in the Form of Conditional Share Purchase Agreement which is
attached hereto as Exhibit 7.2(c) and incorporated by reference herein.
These shares, which represent approximately 9.9% of the issued share
capital of Sedgwick, were conditionally acquired from major institutional
shareholders in Sedgwick.
The purchase of Shares pursuant to the Ordinary Offer will reduce the
number of holders of and the number of the Shares that might otherwise
trade publicly and, depending upon the number of Shares so purchased, could
adversely affect the liquidity and market value of the remaining Shares
held by the public. In addition, it is intended that Sedgwick Shares will
cease to be listed on the London Stock Exchange and Sedgwick ADSs will
cease to be listed on the New York Stock Exchange. Sedgwick ADSs are
currently registered under the Securities and Exchange Act of 1934.
Registration of such Sedgwick ADSs may be terminated upon application of
Sedgwick to the SEC if Sedgwick ADSs are neither listed on a national
securities exchange nor held by 300 or more beneficial owners in the US.
Item 5. Interest in Securities of the Issuer.
(a)-(b) As described in Item 4 above, MMC has received irrevocable
undertakings to accept the Ordinary Offer in respect of securities
representing a total of 225,743,233 Sedgwick Shares, and representing in
aggregate approximately 40.7% of Sedgwick's issued share capital. In
addition, certain parties, on behalf of MMC, agreed to acquire, subject to
certain conditions, a total of 54,862,345 Sedgwick Shares at a price of 225
pence per Sedgwick Share. These Sedgwick Shares represent approximately
9.9% of the issued share capital of Sedgwick.
To the knowledge of MMC, none of its officers and directors
beneficially own any Shares, except for Shares which may be held in
discretionary accounts and over which such officers and directors do not
have investment power.
(c) The following transactions for value in Sedgwick Shares have been
carried out by the following parties on behalf of MMC during the disclosure
period:
<TABLE>
<CAPTION>
Number of
Name Transaction Date Price Sedgwick Shares
<S> <C> <C> <C> <C>
J.P. Morgan Securities Limited . . Purchase 07/10/98 140 pence 14,323
J.P. Morgan Securities Limited . . Sale 07/10/98 140 pence 14,323
J.P. Morgan Securities Limited . . Conditional
purchase 08/25/98 225 pence 700,000
J.P. Morgan Securities Limited . . Conditional
purchase 08/25/98 225 pence 8,718,000
J.P. Morgan Securities Limited . . Conditional
purchase 08/25/98 225 pence 348,000
J.P. Morgan Securities Limited . . Conditional
purchase 08/25/98 225 pence 7,500,000
J.P. Morgan Securities Limited . . Conditional
purchase 08/25/98 225 pence 2,274,275
J.P. Morgan Securities Limited . . Conditional
purchase 08/27/98 225 pence 6,006,985
J.P. Morgan Securities Limited . . Conditional
purchase 08/27/98 225 pence 7,500,000
J.P. Morgan Securities Limited . . Conditional
purchase 08/28/98 225 pence 6,000,000
Cazenove & Co. . . . . . . . . . . Conditional
purchase 08/27/98 225 pence 6,795,698
Cazenove & Co. . . . . . . . . . . Conditional
purchase 08/27/98 225 pence 6,000,000
Cazenove & Co. . . . . . . . . . . Conditional
purchase 08/28/98 225 pence 219,387
Cazenove & Co. . . . . . . . . . . Conditional
purchase 08/28/98 225 pence 800,000
Cazenove & Co. . . . . . . . . . . Conditional
purchase 08/28/98 225 pence 2,000,000
</TABLE>
The conditional purchases shown above were made on behalf of MMC on
the terms described in the Form of Conditional Share Purchase Agreement
which is attached hereto as Exhibit 7.2(c) and incorporated by reference
herein.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
Except as described above and in Items 4 and 5 hereof, there are no
contracts, arrangements, understandings or relationships (legal or
otherwise) among MMC, Sedgwick and any executive officer, director or
controlling person of MMC, with respect to any Shares, including but not
limited to transfer or voting of any of the Shares, finder's fees, joint
venture, loan or option arrangements, puts or calls, guarantee of profits,
division of profits or loss, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
7.1 Credit Agreement, dated as of August 24, 1998, among Marsh &
McLennan Companies, Inc., the Lenders Party Thereto, and Morgan
Guaranty Trust Company of New York, as Administrative Agent.
7.2 (a) Form of Irrevocable Undertaking executed by certain
shareholders of Sedgwick Group plc.
(b) Form of Irrevocable Undertaking executed by certain
directors of Sedgwick Group plc.
(c) Form of Conditional Share Purchase Agreement between Marsh &
McLennan Companies, Inc. and certain shareholders of Sedgwick
Group plc.
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief,
the undersigned certifies that the information set forth in this Statement
is true, complete and correct.
Dated: September 3, 1998
MARSH & McLENNAN COMPANIES, INC.
/s/ Gregory F. Van Gundy
---------------------------------------------
Name: Gregory F. Van Gundy
Title: General Counsel and Secretary
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF
MARSH & McLENNAN COMPANIES, INC.
Unless otherwise indicated, the business address of directors and executive
officers is 1166 Avenue of the Americas, New York, New York 10036-2774 and
all directors and executive officers are citizens of the United States of
America. An asterisk indicates that a person is a director.
Name and Business Address Principal Occupation or Employment
------------------------- ----------------------------------
Norman Barham* Vice Chairman of
J&H Marsh & McLennan, Inc.,
a subsidiary of Marsh & McLennan
Companies, Inc.
Lewis W. Bernard* Chairman of Classroom, Inc.
c/o Morgan Stanley Group, Inc.
1221 Ave. of the Americas
New York, NY 10020
Richard H. Blum* Vice Chairman of
J&H Marsh & McLennan, Inc.,
a subsidiary of Marsh & McLennan
Companies, Inc.
Francis N. Bonsignore Senior Vice President - Human
Resources & Administration of
Marsh & McLennan Companies, Inc.
Frank J. Borelli* Senior Vice President and Chief
Financial Officer of
Marsh & McLennan Companies, Inc.
Peter Coster* President of Mercer Consulting
Citizen of the United Kingdom Group, Inc., a subsidiary of
Marsh & McLennan Companies, Inc.
Robert F. Erburu* Retired Chairman of the Board of
c/o Times Mirror Company The Times Mirror Company
220 West First Street
Los Angeles, CA 90012
Jeffrey W. Greenberg* Chairman and Chief Executive Officer
Marsh & McLennan of Marsh & McLennan Risk Capital
Risk Capital Corp. Corp., a subsidiary of Marsh &
20 Horseneck Lane McLennan Companies, Inc.
Greenwich, CT 06830
Ray J. Groves* Chairman of Legg Mason Merchant
Ernst & Young Banking, Inc.
787 Seventh Avenue
New York, NY 10019
The Rt. Hon. Lord Lang of Monkton* Former member of British Parliament
Citizen of the United Kingdom
Kersland
Monkton
Ayshire KA9 2QU
United Kingdom
Lawrence J. Lasser* President and Chief Executive Officer
Putnam Investments, Inc. of Putnam Investments, Inc., a
One Post Office Square subsidiary of Marsh & McLennan
Boston, MA 02109 Companies, Inc.
David A. Olsen* Former Vice Chairman of the Board of
Marsh & McLennan Companies, Inc.
John D. Ong* Retired Chairman of BFGoodrich Company
400 Embassy Parkway
Akron, OH 44333
George Putnam* Chairman of the Board of Trustees and
The Putnam Funds President of the various mutual
One Post Office Square funds managed by Putnam Investment
Boston, MA 02109 Management, Inc.; Chairman of
Putnam Investment Management, Inc.,
a subsidiary of Marsh & McLennan
Companies, Inc.
Adele Smith Simmons* President of the John D. and
MacArthur Foundation Catherine T. MacArthur Foundation
140 South Dearborn Street in Chicago, Illinois.
Chicago, IL 60603
John T. Sinnott* Vice Chairman and Chief Executive
Officer of J&H Marsh & McLennan,
Inc., a subsidiary of Marsh &
McLennan Companies, Inc.
A.J.C. Smith* Chairman of the Board and Chief
Executive Officer of Marsh &
McLennan Companies, Inc.
Frank J. Tasco* Retired Chairman and Chief Executive
Officer of Marsh & McLennan
Companies, Inc.
Gregory F. Van Gundy General Counsel & Secretary of Marsh
& McLennan Companies, Inc.
EXHIBIT 7.1
[EXECUTION COPY]
$2,250,000,000
CREDIT AGREEMENT
dated as of
August 24, 1998
among
Marsh & McLennan Companies, Inc.
The Lenders Party Hereto
and
Morgan Guaranty Trust Company of New York,
as Administrative Agent
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions............................................ 1
SECTION 1.02. Accounting Terms and Determinations.................... 13
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend.................................... 13
SECTION 2.02. Method of Borrowing.................................... 14
SECTION 2.03. Maturity of Loans...................................... 15
SECTION 2.04. Interest Rates......................................... 15
SECTION 2.05. Method of Electing Interest Rates...................... 16
SECTION 2.06. Facility Fees.......................................... 18
SECTION 2.07. Termination or Reduction of Commitments................ 18
SECTION 2.08. Optional Prepayments................................... 19
SECTION 2.09. General Provisions as to Payments...................... 19
SECTION 2.10. Funding Losses......................................... 20
SECTION 2.11. Computation of Interest and Fees....................... 21
SECTION 2.12. Notes.................................................. 21
SECTION 2.13. Regulation D Compensation.............................. 21
ARTICLE 3
CONDITIONS
SECTION 3.01. Closing................................................ 22
SECTION 3.02. Borrowings to Finance Acquisition of Target
Shares Pursuant to Offer............................. 23
SECTION 3.03. Other Borrowings....................................... 23
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power.......................... 24
SECTION 4.02. Corporate and Governmental Authorization;
No Contravention..................................... 24
SECTION 4.03. Binding Effect......................................... 24
SECTION 4.04. Financial Information.................................. 25
SECTION 4.05. Litigation............................................. 25
SECTION 4.06. Compliance with ERISA.................................. 25
SECTION 4.07. Taxes.................................................. 26
SECTION 4.08. Subsidiaries........................................... 26
SECTION 4.09. No Regulatory Restrictions on Borrowing................ 26
SECTION 4.10. Full Disclosure........................................ 26
SECTION 4.11. Mortgage............................................... 26
SECTION 4.12. Year 2000 Compliance................................... 26
ARTICLE 5
COVENANTS
SECTION 5.01. Information............................................ 27
SECTION 5.02. Conduct of Business and Maintenance of Existence....... 30
SECTION 5.03. Compliance with the Laws............................... 31
SECTION 5.04. Minimum Consolidated Net Worth; Consolidated Debt...... 31
SECTION 5.05. Consolidations, Mergers and Sales of Assets............ 31
SECTION 5.06. Use of Proceeds........................................ 31
SECTION 5.07. Negative Pledge........................................ 32
SECTION 5.08. Amendment of Mortgage.................................. 33
SECTION 5.09. Taxes, Etc............................................. 33
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default...................................... 34
SECTION 6.02. Notice of Default...................................... 37
ARTICLE 7
THE AGENTS
SECTION 7.01. Appointment and Authorization.......................... 37
SECTION 7.02. Administrative Agent and Affiliates.................... 37
SECTION 7.03. Action by Administrative Agent......................... 38
SECTION 7.04. Consultation with Experts.............................. 38
SECTION 7.05. Liability of Administrative Agent...................... 38
SECTION 7.06. Indemnification........................................ 39
SECTION 7.07. Credit Decision........................................ 39
SECTION 7.08. Successor Administrative Agent......................... 39
SECTION 7.09. Administrative Agent's Fee............................. 39
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate
or Unfair............................................ 40
SECTION 8.02. Illegality............................................. 40
SECTION 8.03. Increased Cost and Reduced Return...................... 41
SECTION 8.04. Taxes.................................................. 42
SECTION 8.05. Base Rate Loans Substituted for Affected
Euro-dollar Loans.................................... 44
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Notices................................................ 45
SECTION 9.02. No Waivers............................................. 45
SECTION 9.03. Expenses; Indemnification.............................. 45
SECTION 9.04. Set-offs............................................... 46
SECTION 9.05. Amendments and Waivers................................. 47
SECTION 9.06. Successors; Participations and Assignments............. 47
SECTION 9.07. No Reliance on Margin Stock............................ 49
SECTION 9.08. Governing Law; Submission to Jurisdiction.............. 49
SECTION 9.09. Counterparts; Integration; Effectiveness............... 49
SECTION 9.10. Waiver of Jury Trial................................... 49
COMMITMENT SCHEDULE
PRICING SCHEDULE
EXHIBIT A - FORM OF NOTE
EXHIBIT B - FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of August 24, 1998 among MARSH & McLENNAN
COMPANIES, INC., the LENDERS party hereto and MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS. The following terms, as used herein, have
the following meanings:
"ADMINISTRATIVE AGENT" means Morgan Guaranty Trust Company of New
York, in its capacity as administrative agent for the Lenders hereunder,
and its successors in such capacity.
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative
Agent, completed by such Lender and returned to the Administrative Agent
(with a copy to the Borrower).
"AFFILIATE" means (i) any corporation or other entity the accounts of
which are included in the consolidated financial statements of the Borrower
and its Consolidated Subsidiaries on the equity method and (ii) any
unconsolidated Subsidiary.
"APPLICABLE LENDING OFFICE" means, with respect to any Lender, (i) in
the case of its Base Rate Loans, its Domestic Lending Office and (ii) in
the case of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"ASSIGNEE" has the meaning specified in Section 9.06(c).
"BASE RATE" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"BASE RATE LOAN" means a Loan which bears interest at the Base Rate
pursuant to the applicable Notice of Borrowing or Notice of Interest Rate
Election or the last sentence of Section 2.05(a) or Article 8.
"BORROWER" means Marsh & McLennan Companies, Inc., a Delaware
corporation, and its successors.
"BORROWER'S 1997 FORM 10-K" means the Borrower's annual report on
Form 10-K for 1997, as filed with the SEC pursuant to the Exchange Act.
"BORROWER'S LATEST FORM 10-Q" means the Borrower's quarterly report
on Form 10-Q for the quarter ended June 30, 1998, as filed with the SEC
pursuant to the Exchange Act.
"BORROWING" means (i) the aggregation of Loans made or to be made to
the Borrower pursuant to Article 2 on the same day, all of which Loans are
of the same type (subject to Article 8) and, except in the case of Base
Rate Loans, have the same initial Interest Period or (ii) if the context so
requires, the borrowing of such Loans. A Borrowing is a Base Rate Borrowing
if such Loans are Base Rate Loans or a Euro-Dollar Borrowing if such Loans
are Euro-Dollar Loans.
"CLOSING DATE" means the date on or after the Effective Date on which
the Administrative Agent shall have received all the documents specified in
or pursuant to Section 3.01.
"COMMITMENT" means (i) with respect to each Lender listed on the
Commitment Schedule, the amount set forth opposite such Lender's name on
the Commitment Schedule and (ii) with respect to any Assignee which becomes
a Lender pursuant to Section 9.06(c), the amount of the transferor Lender's
Commitment assigned to it pursuant to Section 9.06(c), in each case as such
amount may be changed from time to time pursuant to Section 2.07 or
9.06(c); provided that, if the context so requires, the term "COMMITMENT"
means the obligation of a Lender to extend credit up to such amount to the
Borrower hereunder.
"COMMITMENT REDUCTION EVENT" means the incurrence after the date
hereof of any Debt by the Borrower or any of its Subsidiaries in the form
of debt securities or by the Borrower in the form of bank borrowings, other
than (i) loan notes issued to shareholders of Target pursuant to the Offer,
(ii) commercial paper borrowings, (iii) borrowings under the Credit
Agreement dated as of June 13, 1997 among the Borrower, Marsh McLennan,
Incorporated, the banks listed therein and The Chase Manhattan Bank, as
Administrative Agent and (iv) any such Debt which is secured by a Lien
permitted by Section 5.07.
"COMMITMENT SCHEDULE" means the Commitment Schedule attached
hereto.
"COMPLETION PROCEDURES" means procedures pursuant to section 428 et
seq. Companies Act 1985 whereby the Borrower, after having validly acquired
or agreed to acquire at least 90% in nominal value of the ordinary shares
to which the Offer relates and having complied with certain other
requirements, may acquire the remainder of such ordinary shares.
"CONSOLIDATED DEBT" means, at any date, the Debt of the Borrower and
its Consolidated Subsidiaries, determined on a consolidated basis as of
such date.
"CONSOLIDATED NET WORTH" means, at any date, the consolidated
stockholders' equity of the Borrower and its Consolidated Subsidiaries plus
any unrealized losses and less any unrealized gains (in each case to the
extent reflected in the determination of such consolidated stockholders'
equity) related, directly or indirectly, to securities available for sale,
as determined in accordance with Statement of Financial Accounting
Standards No. 115 (or any successor statements or amendments thereto) (in
each case as affected by any subsequent relevant pronouncements of the
Financial Accounting Standards Board or, if and to the extent applicable,
the SEC).
"CONSOLIDATED SUBSIDIARY" means, at any date, any Subsidiary or other
entity the accounts of which would be consolidated with those of the
Borrower in its consolidated financial statements if such statements were
prepared as of such date.
"CONSOLIDATED TANGIBLE NET WORTH" means, at any date, Consolidated
Net Worth less the consolidated Intangible Assets of the Borrower and its
Consolidated Subsidiaries, all determined as of such date. For purposes of
this definition, "INTANGIBLE ASSETS" means, without duplication, the amount
(to the extent reflected in determining the consolidated stockholders'
equity component of Consolidated Net Worth) of (i) all write-ups (other
than write-ups resulting from foreign currency translations and write-ups
of assets of a going concern business made within twelve months after the
acquisition of such business) subsequent to December 31, 1997 in the book
value of any asset owned by the Borrower or a Consolidated Subsidiary, (ii)
all unamortized debt discount and expense, unamortized deferred charges,
goodwill, patents, trademarks, service marks, trade names, anticipated
future benefit of tax loss carry-forwards, copyrights, organization or
developmental expenses and other intangible assets, designated as such as
contemplated by Section 1.02 and (iii) all investments in Affiliates in an
aggregate amount in excess of $180,000,000.
"CREDIT EXPOSURE" means, with respect to any Lender at any time, (i)
the amount of its Commitment (whether used or unused) at such time or (ii)
if the Commitments have terminated in their entirety, the aggregate
outstanding principal amount of its Loans at such time.
"DEBT" of any Person means, at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee which are
capitalized in accordance with GAAP, (v) all non-contingent obligations
(and, for purposes of Section 5.07 and the definitions of Material Debt and
Material Financial Obligations, all contingent obligations) of such Person
to reimburse any bank or other Person in respect of amounts paid under a
letter of credit or similar instrument, (vi) all Debt secured by a Lien on
any asset of such Person, whether or not such Debt is otherwise an
obligation of such Person, and (vii) all Guarantees by such Person of Debt
of another Person (each such Guarantee to constitute Debt in an amount
equal to the amount of such other Person's Debt Guaranteed thereby).
"DEFAULT" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"DERIVATIVES OBLIGATIONS" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar
transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including
any option with respect to any of the foregoing transactions) or any
combination of the foregoing transactions.
"DOLLARS" and "$" mean lawful money of the United States.
"DOMESTIC BUSINESS DAY" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or
required by law to close.
"DOMESTIC LENDING OFFICE" means, as to each Lender, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Domestic Lending
Office) or such other office as such Lender may hereafter designate as its
Domestic Lending Office by notice to the Borrower and the Administrative
Agent.
"EFFECTIVE DATE" means the date this Agreement becomes effective in
accordance with Section 9.09.
"ENVIRONMENTAL LAWS" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions,
grants, franchises, licenses, agreements and other governmental
restrictions relating to the environment or the effect of the environment
on human health or to emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into the environment,
including (without limitation) ambient air, surface water, ground water or
land, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of pollutants,
contaminants, hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA GROUP" means the Borrower, any Material Subsidiary and all
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower or any Material Subsidiary, are treated as a single employer under
Section 414 of the Internal Revenue Code.
"EURO-DOLLAR BUSINESS DAY" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
Dollar deposits) in London.
"EURO-DOLLAR LENDING OFFICE" means, as to each Lender, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of
such Lender as it may hereafter designate as its Euro-Dollar Lending Office
by notice to the Borrower and the Administrative Agent.
"EURO-DOLLAR LOAN" means a Loan which bears interest at a Euro-Dollar
Rate pursuant to the applicable Notice of Borrowing or Notice of Interest
Rate Election.
"EURO-DOLLAR MARGIN" means (i) on any date on or prior to February
24, 1999, the applicable Euro-Dollar Margin set forth on the Pricing
Schedule for Level IV Status and the Utilization (as defined therein) that
exists on such date, and (ii) on any date thereafter, a rate per annum
determined in accordance with the Pricing Schedule.
"EURO-DOLLAR RATE" means a rate of interest determined pursuant to
Section 2.04(b) on the basis of a London Interbank Offered Rate.
"EURO-DOLLAR RESERVE PERCENTAGE" means, for any day, that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by
the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the
Federal Reserve System in New York City with deposits exceeding five
billion Dollars in respect of "Eurocurrency liabilities" (or in respect of
any other category of liabilities which includes deposits by reference to
which the interest rate on Euro-Dollar Loans is determined or any category
of extensions of credit or other assets which includes loans by a
non-United States office of any Lender to United States residents).
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time.
"FACILITY FEE RATE" means (i) on any date on or prior to February 24,
1999 which is not a Pricing Grid Day, 0.08% per annum and (ii) on any other
date, a rate per annum determined in accordance with the Pricing Schedule.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day; provided that (i) if such day is not
a Domestic Business Day, the Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding Domestic Business Day as so
published on the next succeeding Domestic Business Day and (ii) if no such
rate is so published on such next succeeding Domestic Business Day, the
Federal Funds Rate for such day shall be the average rate quoted to Morgan
Guaranty Trust Company of New York on such day on such transactions as
determined by the Administrative Agent.
"FISCAL QUARTER" means a fiscal quarter of the Borrower.
"FISCAL YEAR" means a fiscal year of the Borrower.
"GAAP" means generally accepted accounting principles as in effect
from time to time, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants) with the
most recent audited consolidated financial statements of the Borrower and
its Consolidated Subsidiaries delivered to the Lenders.
"GROUP OF LOANS" means, at any time, a group of Loans consisting of
(i) all Loans which are Base Rate Loans at such time or (ii) all
Euro-Dollar Loans which have the same Interest Period at such time;
provided that, if a Loan of any particular Lender is converted to or made
as a Base Rate Loan pursuant to Article 8, such Loan shall be included in
the same Group or Groups of Loans from time to time as it would have been
in if it had not been so converted or made.
"GUARANTEE" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of
any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i)
to purchase or pay (or advance or supply funds for the purchase or payment
of) such Debt (whether arising by virtue of partnership arrangements, by
virtue of an agreement to keep-well, to purchase assets, goods, securities
or services, to take-or-pay, or to maintain financial statement conditions
or otherwise) or (ii) entered into for the purpose of assuring in any other
manner the holder of such Debt of the payment thereof or to protect such
holder against loss in respect thereof (in whole or in part); provided that
the term "GUARANTEE" shall not include endorsements for collection or
deposit in the ordinary course of business. The term "GUARANTEE" used as a
verb has a correlative meaning.
"INDEMNITEE" has the meaning set forth in Section 9.03(b).
"INTEREST PERIOD" means, with respect to each Euro-Dollar Loan, the
period commencing on the date of borrowing specified in the applicable
Notice of Borrowing or on the date specified in an applicable Notice of
Interest Rate Election and ending one, two, three or six months thereafter,
as the Borrower may elect in such notice; provided that:
(a) any Interest Period which would otherwise end on a day which
is not a Euro-Dollar Business Day shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of
such Interest Period) shall, subject to clause (c) below, end on the
last Euro- Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"LENDER" means (i) each bank or other institution listed on the
Commitment Schedule, (ii) each Assignee which becomes a Lender pursuant to
Section 9.06(c) and (iii) their respective successors.
"LENDER PARTIES" means the Lenders and the Administrative Agent.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has substantially the same practical effect
as a security interest, in respect of such asset. For purposes hereof, the
Borrower or any Subsidiary shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"LOAN" means a loan made by a Lender pursuant to Section 2.01;
provided that, if any such loan or loans (or portions thereof) are combined
or subdivided pursuant to a Notice of Interest Rate Election, the term
"LOAN" shall refer to the combined principal amount resulting from such
combination or to each of the separate principal amounts resulting from
such subdivision, as the case may be.
"LONDON INTERBANK OFFERED RATE" has the meaning set forth in Section
2.04(b).
"MARGIN STOCK" means "margin stock" within the meaning of Regulations
U and X.
"MATERIAL ADVERSE EFFECT" means (i) any material adverse effect on
the business, financial position or results of operations of the Borrower
and its Subsidiaries, taken as a whole; (ii) any material adverse effect on
the ability of the Borrower to consummate the transactions contemplated
hereby or (iii) any material adverse effect on any of the rights and
remedies of the Lender Parties under this Agreement and the Notes.
"MATERIAL DEBT" means Debt (except Debt outstanding hereunder) of the
Borrower and/or one or more of its Subsidiaries, arising in one or more
related or unrelated transactions, in an aggregate principal or face amount
exceeding $50,000,000.
"MATERIAL FINANCIAL OBLIGATIONS" means a principal or face amount of
Debt (except Debt outstanding hereunder) and/or payment or
collateralization obligations in respect of Derivatives Obligations of the
Borrower and/or one or more of its Subsidiaries, arising in one or more
related or unrelated transactions, the principal or face amount (with
respect to Debt) or Settlement Amount (with respect to Derivatives
Obligations, after giving effect to any netting arrangements) of which
exceeds in the aggregate $50,000,000.
"MATERIAL PLAN" means, at any time, a Plan or Plans having aggregate
Unfunded Liabilities in excess of $15,000,000.
"MATERIAL SUBSIDIARY" means at any time any Subsidiary which as of
such time meets the definition of a "significant subsidiary" contained as
of the date hereof in Regulation S-X of the SEC.
"MOODY'S" means Moody's Investors Service, Inc.
"MORTGAGE" means the Restated Mortgage and Indenture and Security
Agreement dated as of April 6, 1989 made by the Borrower, Marsh & McLennan,
Incorporated, William M. Mercer-Meidinger-Hansen, Incorporated and Marsh &
McLennan Group Associates, Inc., tenants in common, as mortgagor, and The
First National Bank of Boston, trustee, as mortgagee, as amended and
supplemented from time to time, including, without limitation, as described
in the Mortgage Memorandum, securing the Secured Notes and covering the
Borrower's headquarters located at 1166 Avenue of the Americas, New York,
New York.
"MORTGAGE MEMORANDUM" means the memorandum prepared by the Borrower
describing the Mortgage as in effect on May 20, 1991, particularly as to
the non-recourse nature of the obligations of the Borrower and the other
mortgagors thereunder and the circumstances contemplated therein under
which such obligations shall become recourse obligations with respect to
any assets (except the Mortgaged Property) of the Borrower or any of the
other mortgagors or any Subsidiary (including any such other mortgagor).
"MORTGAGED PROPERTY" has the meaning set forth in the Mortgage as in
effect on May 20, 1991.
"MULTIEMPLOYER PLAN" means, at any time, an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member
of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made
contributions, including for these purposes any Person which ceased to be a
member of the ERISA Group during such five year period.
"NET CASH PROCEEDS" means, with respect to any Commitment Reduction
Event, an amount equal to the cash proceeds received by the Borrower or any
of its Subsidiaries from or in respect of such Commitment Reduction Event
less any expenses reasonably incurred by such Person in respect of such
Commitment Reduction Event.
"NOTES" means promissory notes of the Borrower, substantially in the
form of Exhibit A hereto, evidencing the Borrower's obligation to repay the
Loans made to it, and "NOTE" means any one of such promissory notes
issued hereunder.
"NOTICE OF BORROWING" has the meaning set forth in Section 2.02.
"NOTICE OF INTEREST RATE ELECTION" has the meaning set forth in
Section 2.05.
"OFFER" means the offer by the Borrower to purchase all outstanding
ordinary shares of Target on the terms and conditions specified in the form
of offer heretofore delivered by the Borrower to the Lenders.
"OFFER TERMINATION DATE" means the earliest date on which all of the
following have occurred: (i) all payments in respect of acceptance of the
Offer have been made in full, (ii) no further such acceptances are possible
and (iii) all Completion Procedures which are capable of being implemented
have been completed and all payments pursuant thereto to shareholders in
Target have been made in full.
"OPERATING CASH FLOW" means, at any date, for the period of four
consecutive fiscal quarters then ended, the sum (without duplication)
determined on a consolidated basis for the Borrower and its Consolidated
Subsidiaries as reported in the Borrower's audited or unaudited quarterly
consolidated statements of cash flows, of Net Cash Generated From
Operations for such period plus (or minus) to the extent reflected in
determining Net Cash Generated From Operations for such period, Net Changes
In Operating Working Capital Other Than Cash And Cash Equivalents for such
period.
"PARENT" means, with respect to any Lender, any Person controlling
such Lender.
"PARTICIPANT" has the meaning set forth in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERSON" means an individual, a corporation, a limited liability
Borrower, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency
or instrumentality thereof.
"PLAN" means, at any time, an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject
to the minimum funding standards under Section 412 of the Internal Revenue
Code and either (i) is maintained, or contributed to, by any member of the
ERISA Group for employees of any member of the ERISA Group or (ii) has at
any time within the preceding five years been maintained, or contributed
to, by any Person which was at such time a member of the ERISA Group for
employees of any Person which was at such time a member of the ERISA Group.
"PRICING GRID DAY" means any day when (i) the Borrower has on or
prior to such day delivered to the Administrative Agent a certificate to
the effect that it does not anticipate that any Loans will be borrowed
because the Borrower has access to the commercial paper market and other
sources of funds sufficient to finance the acquisition of Target without
any borrowing under this Agreement and (ii) there have been no Loans
outstanding on or prior to such day.
"PRICING SCHEDULE" means the Pricing Schedule attached hereto.
"PRIME RATE" means the rate of interest publicly announced by Morgan
Guaranty Trust Company of New York in New York City from time to time as
its Prime Rate.
"QUARTERLY PAYMENT DATES" means each March 31, June 30, September 30
and December 31.
"REFERENCE BANKS" means the principal London offices of Morgan
Guaranty Trust Company of New York and, at such time as one or more
additional Lenders shall have become parties hereto, such other Lenders as
may be mutually agreed by the Borrower and the Administrative Agent.
"REGULATIONS U AND X" means Regulations U and X of the Board of
Governors of the Federal Reserve System, as in effect from time to time.
"REQUIRED LENDERS" means, at any time, Lenders having at least 51% in
aggregate amount of the Credit Exposures at such time.
"REVOLVING CREDIT PERIOD" means the period from and including the
Closing Date to but not including the Termination Date.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.
"SEC" means the Securities and Exchange Commission.
"SECURED NOTES" means the $200,000,000 aggregate principal amount of
9.80% Secured Non-Recourse Notes Due April 6, 2009 secured by the Mortgage.
"SETTLEMENT AMOUNT" means, in respect of any Derivatives Obligation
to which the Borrower or any Subsidiary is a party, the net aggregate
marked-to- market (in accordance with standard industry practice) amount,
if any, that would be due in respect of such Derivatives Obligation
(together with all other Derivatives Obligations under the same master
agreement and giving effect to any netting arrangements between the parties
to such master agreement) if such Derivatives Obligation was (and such
other Derivatives Obligations were) terminated because of a default by the
Borrower or such Subsidiary.
"SUBSIDIARY" means, as to any Person, any corporation or other entity
of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons
performing similar functions are at the time directly or indirectly owned
by such Person. Unless otherwise specified, "SUBSIDIARY" means a Subsidiary
of the Borrower.
"TARGET" means Sedgwick Group plc, an English company.
"TARGET SHARES" means the ordinary shares of Target.
"TERMINATION DATE" means August 23, 1999 or, if such day is not a
Euro- Dollar Business Day, the next preceding Euro-Dollar Business Day.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time,
the amount (if any) by which (i) the value of all benefit liabilities under
such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii)
the fair market value of all Plan assets allocable to such liabilities
under Title IV of ERISA (excluding any accrued but unpaid contributions),
all determined as of the then most recent valuation date for such Plan, but
only to the extent that such excess represents a potential liability of a
member of the ERISA Group to the PBGC or any other Person under Title IV of
ERISA.
"UNITED STATES" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"WHOLLY-OWNED SUBSIDIARY" means any Subsidiary all of the shares of
capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the
Borrower.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted,
all accounting determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared in
accordance with GAAP; provided that, if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any provision hereof
to eliminate the effect of any change in GAAP (or if the Administrative
Agent notifies the Borrower that the Required Lenders wish to amend any
provision hereof for such purpose), then such provision shall be applied on
the basis of GAAP in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such provision
is amended in a manner satisfactory to the Borrower and the Required
Lenders.
ARTICLE 2
THE CREDITS
SECTION 2.01. COMMITMENTS TO LEND. Each Lender severally agrees, on
the terms and conditions set forth in this Agreement, to make loans to the
Borrower pursuant to this Section from time to time during the Revolving
Credit Period; provided that, immediately after each such loan is made, the
aggregate outstanding principal amount of the Loans held by such Lender
shall not exceed its Commitment. Each Borrowing under this Section shall be
in an aggregate principal amount of $10,000,000 or any larger multiple of
$1,000,000 (except that any such Borrowing may be in the aggregate amount
of the unused Commitments) and shall be made from the several Lenders
ratably in proportion to their respective Commitments. Within the foregoing
limits, the Borrower may borrow under this Section, prepay Loans to the
extent permitted by Section 2.08 and reborrow at any time during the
Revolving Credit Period under this Section.
SECTION 2.02. METHOD OF BORROWING. (a) The Borrower shall give the
Administrative Agent notice (a "NOTICE OF BORROWING") not later than 10:30
A.M. (New York City time) on (x) the date of each Base Rate Borrowing and
(y) the third Euro-Dollar Business Day before each Euro-Dollar Borrowing,
specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) whether the Loans comprising such Borrowing are to bear
interest initially at the Base Rate or a Euro-Dollar Rate; and
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
initial Interest Period applicable thereto, subject to the provisions
of the definition of Interest Period.
(b) Promptly after receiving a Notice of Borrowing, the
Administrative Agent shall notify each Lender of the contents thereof and
of such Lender's ratable share of such Borrowing and such Notice of
Borrowing shall not thereafter be revocable by the Borrower.
(c) Not later than 12:00 Noon (New York City time) on the date of
each Borrowing, each Lender shall make available its ratable share of such
Borrowing, in Federal or other funds immediately available in New York
City, to the Administrative Agent at its address specified in or pursuant
to Section 9.01. Unless the Administrative Agent determines that any
applicable condition specified in Article 3 has not been satisfied, the
Administrative Agent will make the funds so received from the Lenders
available to the Borrower at the Administrative Agent's aforesaid address.
(d) Unless the Administrative Agent shall have received notice from a
Lender before the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made
such share available to the Administrative Agent on the date of such
Borrowing in accordance with Section 2.02(c) and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such Lender
shall not have so made such share available to the Administrative Agent,
such Lender and the Borrower severally agree to repay to the Administrative
Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Administrative Agent,
at (i) if such amount is repaid by the Borrower, a rate per annum equal to
the higher of the Federal Funds Rate and the interest rate applicable to
such Borrowing pursuant to Section 2.04 and (ii) if such amount is repaid
by such Lender, the Federal Funds Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, the Borrower shall not be
required to repay such amount and the amount so repaid by such Lender shall
constitute such Lender's Loan included in such Borrowing for purposes of
this Agreement.
SECTION 2.03. MATURITY OF LOANS. Each Loan shall mature, and the
principal amount thereof shall be due and payable (together with interest
accrued thereon), on the Termination Date.
SECTION 2.04. INTEREST RATES. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the
date such Loan is made until it becomes due, at a rate per annum equal to
the Base Rate for such day. Such interest shall be payable quarterly in
arrears on each Quarterly Payment Date. Any overdue principal of or
interest on any Base Rate Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the sum of 2% plus the
Base Rate for such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period
applicable thereto, at a rate per annum equal to the sum of the Euro-Dollar
Margin for such day plus the London Interbank Offered Rate applicable to
such Interest Period. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than
three months, at intervals of three months after the first day thereof.
The "LONDON INTERBANK OFFERED RATE" applicable to any Interest Period
means the average (rounded upward, if necessary, to the next higher 1/16 of
1%) of the respective rates per annum at which deposits in Dollars are
offered to each Reference Bank in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before
the first day of such Interest Period in an amount approximately equal to
the principal amount of the Euro- Dollar Loan of such Reference Bank to
which such Interest Period is to apply and for a period of time comparable
to such Interest Period.
(c) Any overdue principal of or interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the higher of (i) the sum of 2% plus the Euro-Dollar
Margin for such day plus the London Interbank Offered Rate applicable to
such Loan on the day before such payment was due and (ii) the sum of 2%
plus the Euro-Dollar Margin for such day plus a rate per annum equal to the
quotient obtained (rounded upward, if necessary, to the next higher 1/100
of 1%) by dividing (x) the average (rounded upward, if necessary, to the
next higher 1/16 of 1%) of the respective rates per annum at which one day
(or, if such amount due remains unpaid more than three Euro-Dollar Business
Days, then for such other period of time not longer than three months as
the Administrative Agent may select) deposits in Dollars in an amount
approximately equal to such overdue payment due to each Reference Bank are
offered to such Reference Bank in the London interbank market for the
applicable period determined as provided above by (y) 1.00 minus the Euro-
Dollar Reserve Percentage (or, if the circumstances described in clause
8.01(a) or 8.01(b) shall exist, at a rate per annum equal to the sum of 2%
plus the Base Rate for such day).
(d) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall promptly
notify the Borrower and the Lenders of each rate of interest so determined,
and its determination thereof shall be conclusive in the absence of
manifest error.
(e) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated by this Section. If
any Reference Bank does not furnish a timely quotation, the Administrative
Agent shall determine the relevant interest rate on the basis of the
quotation or quotations furnished by the remaining Reference Bank or Banks
or, if none of such quotations is available on a timely basis, the
provisions of Section 8.01 shall apply.
SECTION 2.05. METHOD OF ELECTING INTEREST RATES. (a) The Loans
included in each Borrowing shall bear interest initially at the type of
rate specified by the Borrower in the applicable Notice of Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue
the type of interest rate borne by each Group of Loans (subject to Section
2.05(d) and the provisions of Article 8), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar
Business Day and
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect
to convert such Loans to Base Rate Loans as of any Domestic Business
Day or continue such Loans as Euro-Dollar Loans for an additional
Interest Period, subject to Section 2.10 if any such conversion is
effective on any day other than the last day of an Interest Period
applicable to such Loans.
Each such election shall be made by delivering a notice (a "NOTICE OF
INTEREST RATE ELECTION") to the Administrative Agent not later than 10:30
A.M. (New York City time) on the third Euro-Dollar Business Day before the
conversion or continuation selected in such notice is to be effective. A
Notice of Interest Rate Election may, if it so specifies, apply to only a
portion of the aggregate principal amount of the relevant Group of Loans;
provided that (i) such portion is allocated ratably among the Loans
comprising such Group and (ii) the portion to which such Notice applies,
and the remaining portion to which it does not apply, are each at least
$10,000,000 (unless such portion is comprised of Base Rate Loans). If no
such notice is timely received before the end of an Interest Period for any
Group of Euro-Dollar Loans, the Borrower shall be deemed to have elected
that such Group of Loans be converted to Base Rate Loans at the end of such
Interest Period.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected
in such notice is to be effective, which shall comply with the
applicable clause of Section 2.05(a);
(iii) if the Loans comprising such Group are to be converted,
the new type of Loans and, if the Loans resulting from such
conversion are to be Euro-Dollar Loans, the duration of the next
succeeding Interest Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for
an additional Interest Period, the duration of such additional
Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Promptly after receiving a Notice of Interest Rate Election from
the Borrower pursuant to Section 2.05(a), the Administrative Agent shall
notify each Lender of the contents thereof and such notice shall not
thereafter be revocable by the Borrower.
(d) The Borrower shall not be entitled to elect to convert any Loans
to, or continue any Loans for an additional Interest Period as, Euro-Dollar
Loans if (i) the aggregate principal amount of any Group of Euro-Dollar
Loans created or continued as a result of such election would be less than
$10,000,000 or (ii) a Default shall have occurred and be continuing when
the Borrower delivers notice of such election to the Administrative Agent.
(e) If any Loan is converted to a different type of Loan, the
Borrower shall pay, on the date of such conversion, the interest accrued to
such date on the principal amount being converted.
SECTION 2.06. FACILITY FEES. The Borrower shall pay to the
Administrative Agent, for the account of the Lenders ratably in proportion
to their Credit Exposures, a facility fee calculated for each day at the
Facility Fee Rate for such day on the aggregate amount of the Credit
Exposures on such day. Such facility fee shall accrue for each day from and
including the Effective Date to but excluding the day on which the Credit
Exposures are reduced to zero. Fees accrued for the account of the Lenders
under this Section shall be payable quarterly in arrears on each Quarterly
Payment Date and on the day on which the Commitments terminate in their
entirety (and, if later, on the day on which the Credit Exposures are
reduced to zero).
SECTION 2.07. TERMINATION OR REDUCTION OF COMMITMENTS. (a) The
Borrower may, upon at least three Domestic Business Days' notice to the
Agent, (i) terminate the Commitments at any time, if no Loans are
outstanding at such time, or (ii) ratably reduce from time to time by an
aggregate amount of $10,000,000 or a larger multiple of $1,000,000, the
aggregate amount of the Commitments in excess of the aggregate outstanding
principal amount of the Loans. Promptly after receiving a notice pursuant
to this subsection, the Administrative Agent shall notify each Lender of
the contents thereof.
(b) Within five Domestic Business Days after the Borrower or any
Subsidiary receives any Net Cash Proceeds of a Commitment Reduction Event,
the Commitments shall be reduced ratably by an aggregate amount equal to
the amount of such Net Cash Proceeds; provided that:
(i) if the amount of such reduction is less than $25,000,000,
such reduction shall be deferred until the aggregate amount by which
the Commitments are required to be reduced pursuant to this Section
(including such deferred amounts) is not less than $25,000,000; and
(ii) if, by reason of any such reduction, this subsection would
otherwise require Euro-Dollars Loans or portions thereof to be
prepaid prior to the last day of the applicable Interest Period, such
reduction shall be deferred to such last day unless the
Administrative Agent otherwise notifies the Borrower upon the
instruction of the Required Lenders.
The Borrower shall give the Administrative Agent at least three Domestic
Business Days' notice of each reduction of the Commitments pursuant to this
subsection. If, after giving effect to any reduction of the Commitments
pursuant to this subsection, the aggregate outstanding principal amount of
the Loans would exceed the aggregate amount of the Commitments, the
Borrower shall prepay, pursuant to and in accordance with Section 2.08, a
sufficient aggregate principal amount of the Loans to eliminate such
excess.
(c) Unless previously terminated, the Commitments shall terminate on
the Termination Date.
SECTION 2.08. OPTIONAL PREPAYMENTS. (a) Subject in the case of Euro-
Dollar Loans to Section 2.10, the Borrower may (i) upon at least one
Domestic Business Day's notice to the Administrative Agent, prepay any
Group of Base Rate Loans or (ii) upon at least three Euro-Dollar Business
Days' notice to the Administrative Agent, prepay any Group of Euro-Dollar
Loans, in each case in whole at any time, or from time to time in part in
amounts aggregating $20,000,000 or any larger multiple of $10,000,000, by
paying the principal amount to be prepaid together with interest accrued
thereon to the date of prepayment. Each such optional prepayment shall be
applied to prepay ratably the Loans of the several Lenders included in such
Group of Loans.
(b) Promptly after receiving a notice of prepayment pursuant to this
Section, the Administrative Agent shall notify each Lender of the contents
thereof and of such Lender's ratable share of such prepayment, and such
notice shall not thereafter be revocable by the Borrower.
SECTION 2.09. GENERAL PROVISIONS AS TO PAYMENTS. (a) The Borrower
shall make each payment of principal of, and interest on, the Loans and of
fees hereunder not later than 12:00 Noon (New York City time) on the date
when due, in Federal or other funds immediately available in New York City,
to the Administrative Agent at its address specified in or pursuant to
Section 9.01. The Administrative Agent will promptly distribute to each
Lender its ratable share of each such payment received by the
Administrative Agent for the account of the Lenders. Whenever any payment
of principal of, or interest on, the Base Rate Loans or any payment of fees
shall be due on a day which is not a Domestic Business Day, the date for
payment thereof shall be extended to the next succeeding Domestic Business
Day. Whenever any payment of principal of, or interest on, the Euro-Dollar
Loans shall be due on a day which is not a Euro-Dollar Business Day, the
date for payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case the date for payment thereof shall be
the next preceding Euro-Dollar Business Day. If the date for any payment of
principal is extended by operation of law or otherwise, interest thereon
shall be payable for such extended time.
(b) Unless the Borrower notifies the Administrative Agent before the
date on which any payment is due to the Lenders hereunder that the Borrower
will not make such payment in full, the Administrative Agent may assume
that the Borrower has made such payment in full to the Administrative Agent
on such date and the Administrative Agent may, in reliance on such
assumption, cause to be distributed to each Lender on such due date an
amount equal to the amount then due such Lender. If and to the extent that
the Borrower shall not have so made such payment, each Lender shall repay
to the Administrative Agent forthwith on demand the amount so distributed
to such Lender together with interest thereon, for each day from the date
such amount is distributed to such Lender until the date such Lender repays
such amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.10. FUNDING LOSSES. If the Borrower makes any payment of
principal with respect to any Euro-Dollar Loan or any Fixed Rate Loan is
converted to a different type of Loan (whether such payment or conversion
is pursuant to Article 2, 6 or 8 or otherwise) on any day other than the
last day of an Interest Period applicable thereto, or the last day of an
applicable period fixed pursuant to Section 2.04(c), or if the Borrower
fails to borrow, prepay, convert or continue any Euro-Dollar Loan after
notice has been given to any Lender in accordance with Section 2.02(b),
2.05(c) or 2.08(b), the Borrower shall reimburse each Lender within 15 days
after demand for any resulting loss or expense incurred by it (or by an
existing or prospective Participant in the related Loan), including
(without limitation) any loss incurred in obtaining, liquidating or
employing deposits from third parties, but excluding loss of margin for the
period after such payment or conversion or failure to borrow, prepay,
convert or continue; provided that such Lender shall have delivered to the
Borrower a certificate as to the amount of such loss or expense, which
certificate shall be conclusive in the absence of manifest error.
SECTION 2.11. COMPUTATION OF INTEREST AND FEES. Interest based on the
Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest
and fees shall be computed on the basis of a year of 360 days and paid for
the actual number of days elapsed (including the first day but excluding
the last day).
SECTION 2.12. NOTES. (a) The Borrower's obligation to repay the Loans
made to it by each Lender shall be evidenced by a single Note payable to
the order of such Lender for the account of its Applicable Lending Office.
(b) Each Lender may, by notice to the Borrower and the Administrative
Agent, request that the Borrower's obligation to repay such Lender's Loans
of a particular type be evidenced by a separate Note. Each such Note shall
be in substantially the form of Exhibit A hereto with appropriate
modifications to reflect the fact that it relates solely to Loans of the
relevant type. Each reference in this Agreement to the "NOTE" of such
Lender shall be deemed to refer to and include any or all of such Notes, as
the context may require.
(c) Promptly after it receives each Lender's Note pursuant to Section
3.01(a), the Administrative Agent shall forward such Note to such Lender.
Each Lender shall record the date and amount of each Loan made by it and
the date and amount of each payment of principal made with respect thereto,
and may, if such Lender so elects in connection with any transfer or
enforcement of its Note, endorse on the schedule forming a part thereof
appropriate notations to evidence the foregoing information with respect to
each such Loan then outstanding; provided that a Lender's failure to make
(or any error in making) any such recordation or endorsement shall not
affect the Borrower's obligations hereunder or under its Notes. Each Lender
is hereby irrevocably authorized by the Borrower so to endorse its Note and
to attach to and make a part of its Note a continuation of any such
schedule as and when required.
SECTION 2.13. REGULATION D COMPENSATION. If and so long as a reserve
requirement of the type described in the definition of "Euro-Dollar Reserve
Percentage" is prescribed by the Board of Governors of the Federal Reserve
System (or any successor), each Lender subject to such requirement may
require the Borrower to pay, contemporaneously with each payment of
interest on each of such Lender's Loans, additional interest on such Loan
at a rate per annum determined by such Lender up to but not exceeding the
excess of (i) (A) the applicable London Interbank Offered Rate divided by
(B) one minus the Euro- Dollar Reserve Percentage over (ii) the applicable
London Interbank Offered Rate. Any Lender wishing to require payment of
such additional interest (x) shall so notify the Borrower and the
Administrative Agent, in which case such additional interest on the Loans
of such Lender shall be payable to such Lender at the place indicated in
such notice with respect to each Interest Period commencing at least three
Business Days after such Lender gives such notice and (y) shall notify the
Borrower at least five Business Days before each date on which interest is
payable on its Loans of the amount then due to such Lender under this
Section.
ARTICLE 3
CONDITIONS
SECTION 3.01. CLOSING. The closing hereunder shall occur when all the
following conditions have been satisfied:
(a) the Administrative Agent shall have received a duly executed
Note for the account of each Lender dated on or before the Closing
Date and complying with the provisions of Section 2.12;
(b) the Administrative Agent shall have received an opinion in
form and substance satisfactory to it of counsel for the Borrower
satisfactory to it, dated the Closing Date and covering such matters
relating to the transactions contemplated hereby as the
Administrative Agent or the Required Lenders may reasonably request;
(c) the Administrative Agent shall have received an opinion in
form and substance satisfactory to it of Davis Polk & Wardwell,
special counsel for the Administrative Agent, dated the Closing Date
and covering such matters relating to the transactions contemplated
hereby as the Administrative Agent or Required Lenders may reasonably
request; and
(d) the Administrative Agent shall have received all documents
the Administrative Agent may reasonably request relating to the
existence of the Borrower, its corporate authority for and the
validity of this Agreement and its Notes, and any other matters
relevant hereto, all in form and substance satisfactory to the
Administrative Agent.
Promptly after the Closing Date occurs, the Administrative Agent shall
notify the Borrower and the Lenders thereof, and such notice shall be
conclusive and binding on all parties hereto.
SECTION 3.02. BORROWINGS TO FINANCE ACQUISITION OF TARGET SHARES
PURSUANT TO OFFER. The obligation of any Lender to make a Loan on the
occasion of any Borrowing for the purposes (and only for the purposes) of
financing the acquisition of Target Shares pursuant to the Offer and the
Completion Procedures is subject to the following conditions:
(a) the Closing Date shall have occurred on or before August 26,
1998;
(b) the Administrative Agent shall have received a Notice of
Borrowing as required by Section 2.02;
(c) immediately before and after such Borrowing, no Event of
Default described in clause (g) or (h) of Section 6.01 shall have
occurred and be continuing;
(d) the representations and warranties of the Borrower set forth
in Sections 4.01, 4.02 and 4.03 shall be true on and as of the date
of such Borrowing; and
(e) the Offer shall have been declared unconditional in all
respects and the Agent shall have received a certified copy of the
announcement to such effect.
Each Borrowing described in this Section shall be deemed to be a
representation and warranty by the Borrower on the date of such Borrowing
as to the facts specified in the foregoing clauses 3.02(c) through 3.02(g),
inclusive.
SECTION 3.03. OTHER BORROWINGS. The obligation of any Lender to make
a Loan on the occasion of any Borrowing for a purpose other than those
specified in Section 3.02 is subject to the satisfaction of the following
conditions:
(a) the fact that the Closing Date shall have occurred on or
before August 26, 1998;
(b) receipt by the Administrative Agent of a Notice of Borrowing
as required by Section 2.02;
(c) the fact that, immediately before and after such Borrowing,
no Default shall have occurred and be continuing; and
(d) the fact that the representations and warranties of the Borrower
contained in this Agreement (except, in the case of any Borrowing
made on a date subsequent to the Closing Date, the representation and
warranty set forth in Section 4.04(c)) shall be true on and as of the
date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Borrowing as to the facts
specified in the foregoing clauses 3.03(c) and 3.03(d).
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. CORPORATE EXISTENCE AND POWER. The Borrower (a) is a
corporation duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation and (b) has all corporate
powers and all material governmental licenses, consents, authorizations and
approvals required to carry on its business as now conducted.
SECTION 4.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO
CONTRAVENTION. The execution, delivery and performance by the Borrower of
this Agreement and the Notes are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any governmental body, agency
or official and do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the Borrower's certificate
of incorporation or by-laws or of any agreement, judgment, injunction,
order, decree or other instrument binding upon the Borrower or any Material
Subsidiary or result in the creation or imposition of any Lien on any asset
of the Borrower or any Material Subsidiary.
SECTION 4.03. BINDING EFFECT. This Agreement constitutes a valid and
binding agreement of the Borrower and each Note, when executed and
delivered in accordance with this Agreement, will constitute a valid and
binding obligation of the Borrower, in each case enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency or similar
laws affecting creditors' rights generally and general principles of
equity.
SECTION 4.04. FINANCIAL INFORMATION. (a) The consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of December 31,
1997 and the related consolidated statements of income, cash flows and
stockholders' equity for the Fiscal Year then ended, reported on by
Deloitte & Touche LLP and set forth in the Borrower's 1997 Form 10-K,
fairly present, in conformity with GAAP, the consolidated financial
position of the Borrower and its Consolidated Subsidiaries as of such date
and their consolidated results of operations and cash flows for such Fiscal
Year.
(b) The unaudited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of June 30, 1998 and the related unaudited
consolidated statements of income, cash flows and stockholders' equity for
the six months then ended, set forth in the Borrower's Latest Form 10-Q,
fairly present, on a basis consistent with the financial statements
referred to in Section 4.04(a), the consolidated financial position of the
Borrower and its Consolidated Subsidiaries as of such date and their
consolidated results of operations and cash flows for such six month period
(subject to normal year-end adjustments).
(c) Since June 30, 1998 there has been no material adverse change in
the business, financial position, results of operations or prospects of the
Borrower and its Consolidated Subsidiaries, considered as a whole.
SECTION 4.05. LITIGATION. There is no action, suit or proceeding
pending against, or to the Borrower's knowledge threatened against or
affecting, the Borrower or any Subsidiary before any court or arbitrator or
any governmental body, agency or official in which there is a reasonable
probability of an adverse decision which would have a Material Adverse
Effect (except as disclosed in writing to the Lenders prior to the
execution and delivery of this Agreement by any Lender, including pursuant
to the Borrower's 1997 Form 10-K and the Borrower's Latest Form 10-Q) or
which in any manner draws into question the validity or enforceability of
this Agreement or the Notes.
SECTION 4.06. Compliance with ERISA. Each member of the ERISA Group
has fulfilled its obligations under the minimum funding standards of ERISA
and the Internal Revenue Code with respect to each Plan and is in
compliance in all material respects with the presently applicable
provisions of ERISA and the Internal Revenue Code with respect to each
Plan. No member of the ERISA Group has (i) sought a waiver of the minimum
funding standard under Section 412 of the Internal Revenue Code in respect
of any Plan, (ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan, or made any amendment to any Plan, which has resulted
or could result in the imposition of a Lien or the posting of a bond or
other security under ERISA or the Internal Revenue Code or (iii) incurred
any liability under Title IV of ERISA other than a liability to the PBGC
for premiums under Section 4007 of ERISA.
SECTION 4.07. TAXES. The Borrower and its Material Subsidiaries have
filed all material tax returns which are required to be filed by them and
have paid all taxes due pursuant to such returns. The charges, accruals and
reserves on the books of the Borrower and its Material Subsidiaries in
respect of taxes or other governmental charges are, in the Borrower's
opinion, adequate.
SECTION 4.08. SUBSIDIARIES. Each of the Borrower's Material
Subsidiaries is a corporation duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorporation, and has
all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as
now conducted.
SECTION 4.09. NO REGULATORY RESTRICTIONS ON BORROWING. The Borrower
is not subject to any regulatory scheme not applicable to corporations
generally which restricts its ability to incur debt.
SECTION 4.10. FULL DISCLOSURE. All information heretofore furnished
by the Borrower to the Administrative Agent or any Lender for purposes of
or in connection with this Agreement or any transaction contemplated hereby
is, and all such information hereafter furnished by the Borrower to the
Administrative Agent or any Lender will be, true and accurate in all
material respects on the date as of which such information is stated or
certified. The Borrower has disclosed to the Lenders in writing any and all
facts which materially and adversely affect, or may affect (to the extent
the Borrower can now reasonably foresee), the business, operations or
financial condition of the Borrower and its Consolidated Subsidiaries,
taken as a whole, or the Borrower's ability to perform its obligations
under this Agreement.
SECTION 4.11. MORTGAGE. The Mortgage has not been amended or
supplemented and no waiver of compliance with any provision thereof has
been granted by any Person since May 15, 1991. No payment default by the
mortgagor (whether cured or waived or not) has occurred under the Mortgage.
The Mortgage Memorandum, a copy of which has been delivered to each of the
Lenders, does not (i) contain any untrue statement of a material fact or
(ii) omit to state any material fact relating to the circumstances under
which the obligations of the Borrower or other mortgagors may become
recourse with respect to assets other than the Mortgaged Property.
SECTION 4.12. YEAR 2000 COMPLIANCE. The Borrower has (i) initiated a
review and assessment of all areas within the business and operations of
the Borrower and each of its Subsidiaries (including those areas affected
by suppliers and vendors) that could be adversely affected by the "Year
2000 Problem" (that is, the risk that computer applications used by it or
any of its Subsidiaries (or their respective suppliers and vendors) may be
unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and any date after December 31, 1999), (ii)
developed a plan and timeline for addressing the Year 2000 Problem on a
timely basis and (iii) to date, implemented such plan in accordance with
such timetable. The Borrower reasonably believes that all computer
applications (including those of suppliers and vendors) that are material
to the business or operations of the Borrower or any of its Subsidiaries
will on a timely basis be able to perform properly date-sensitive functions
for all dates before and from and after January 1, 2000 (that is, be "Year
2000 compliant"), except to the extent that a failure to do so could not
reasonably be expected to have a Material Adverse Effect.
ARTICLE 5
COVENANTS
The Borrower agrees that, so long as any Lender has any Credit
Exposure hereunder or any interest or fees accrued hereunder remain unpaid:
SECTION 5.01. INFORMATION. The Borrower will deliver to each of the
Lenders:
(a) as soon as available and in any event within 120 days after
the end of each Fiscal Year, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such
Fiscal Year and the related consolidated statements of income, cash
flows and stockholders' equity for such Fiscal Year, setting forth in
each case in comparative form the figures for the previous Fiscal
Year, all reported on in a manner acceptable to the SEC by Deloitte &
Touche LLP or other independent public accountants of nationally
recognized standing (it being understood that delivery of the
Borrower's annual report on Form 10-K for any Fiscal Year as filed
with the SEC pursuant to the Exchange Act will satisfy this
requirement with respect to such Fiscal Year);
(b) as soon as available and in any event within 60 days after
the end of each of the first three Fiscal Quarters of each Fiscal
Year, a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such Fiscal Quarter, the
related consolidated statement of income for such Fiscal Quarter and
the related consolidated statements of income and cash flows for the
portion of the Fiscal Year ended at the end of such Fiscal Quarter,
setting forth in the case of each such statement of income or cash
flows in comparative form the figures for the corresponding period in
the previous Fiscal Year, all certified (subject to normal year-end
adjustments) as to fairness of presentation and consistency with GAAP
by the Borrower's chief financial officer, treasurer or chief
accounting officer (it being understood that delivery of the
Borrower's quarterly report on Form 10-Q for any Fiscal Quarter as
filed with the SEC pursuant to the Exchange Act will satisfy this
requirement with respect to such Fiscal Quarter and, if applicable,
the portion of the Borrower's Fiscal Year ended at the end of such
Fiscal Quarter);
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses 5.01(a) and 5.01(b) above, a
certificate of the Borrower's chief financial officer, treasurer or
chief accounting officer (i) setting forth in reasonable detail the
calculations required to establish whether the Borrower was in
compliance with the requirements of Sections 5.04 and 5.07 on the
date of such financial statements and (ii) stating whether any
Default exists on the date of such certificate and, if any Default
then exists, setting forth the details thereof and the action which
the Borrower is taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause 5.01(a) above, a statement of the
firm of independent public accountants which reported on such
statements (i) whether anything has come to their attention to cause
them to believe that the Borrower was not in compliance with any
covenant or agreement contained in this Article 5 insofar as such
covenant or agreement pertains to accounting or auditing matters or
that any Event of Default under Article 6 which pertains to
accounting or auditing matters existed on the date of such financial
statements (it being understood that such firm may state in such
statement that its examination of such financial statements was not
directed primarily towards obtaining knowledge of any such
non-compliance or Event of Default) and (ii) confirming the
calculations set forth in the officer's certificate delivered
simultaneously therewith pursuant to clause 5.01(c) above;
(e) forthwith (i) upon the occurrence of any Default, (ii) in
the event that Consolidated Net Worth falls below $2,500,000,000 or
(iii) in the event that either the Debt evidenced by the Secured
Notes or interest thereon is payable other than solely from the
Mortgaged Property, a certificate of the chief financial officer, the
treasurer or the chief accounting officer of the Borrower setting
forth the details thereof and, with respect to clause (i) above, the
action which the Borrower is taking or proposes to take with respect
thereto and, with respect to clause (iii) above, the nature of the
assets, and the amount of liabilities and other details fully
explaining the recourse nature of the obligations of the Borrower or
any other mortgagor or Subsidiary and updating the Mortgage
Memorandum to reflect the conditions relating to the Mortgage
existing on the date of such certificate;
(f) promptly after the mailing thereof to the Borrower's
shareholders generally, copies of all financial statements, reports
and proxy statements so mailed;
(g) promptly after the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and reports on
Forms 10-K, 10-Q and 8-K (or their equivalents) filed by the Borrower
with the SEC;
(h) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which
might constitute grounds for a termination of such Plan under Title
IV of ERISA, or knows that the plan administrator of any Plan has
given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be
given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the
PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in
respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding
standard under Section 412 of the Internal Revenue Code, a copy of
such application; (v) gives notice of intent to terminate any Plan
under Section 4041(c) of ERISA, a copy of such notice and other
information filed with the PBGC; (vi) gives notice of withdrawal from
any Plan pursuant to Section 4063 of ERISA, a copy of such notice; or
(vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or makes any amendment to any Plan which has
resulted or could result in the imposition of a Lien or the posting
of a bond or other security, a certificate of the Borrower's chief
financial officer or chief accounting officer setting forth details
as to such occurrence and the action, if any, which the Borrower or
applicable member of the ERISA Group is required or proposes to take;
(i) promptly after any change in the Borrower's commercial paper
rating by S&P or Moody's (as defined in the Pricing Schedule), a
notice thereof; and
(j) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries
as the Administrative Agent, at the request of any Lender, may
reasonably request.
In the case of information required to be delivered pursuant to clauses
5.01(a), 5.01(b), 5.01(f) or 5.01(g) above, either (i) the Borrower shall
deliver paper copies of such information to each Lender, or (ii) such
information shall be deemed to have been delivered on the date on which the
Borrower provides notice to the Lenders that such information has been
posted on the Borrower's website on the Internet at the website address
listed on the signature pages hereof, at sec.gov/edaux/searches.htm or at
another website identified in such notice and accessible by the Lenders
without charge; provided that (x) such notice may be included in a
certificate delivered pursuant to clause 5.01(c) and (y) the Borrower shall
deliver paper copies of the information referred to in clauses 5.01(a),
5.01(b), 5.01(f) or 5.01(g) to any Lender which requests such delivery.
SECTION 5.02. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. The
Borrower will continue, and will cause its Material Subsidiaries to
continue, to engage in business of the same general type as now conducted
by the Borrower and its Material Subsidiaries, and will preserve, renew and
keep in full force and effect, and will cause each Material Subsidiary to
preserve, renew and keep in full force and effect their respective
existences and their respective rights, privileges and franchises necessary
or desirable in the normal conduct of business; provided that nothing in
this Section 5.02 shall prohibit (i) the merger of a Subsidiary into the
Borrower or the merger or consolidation of a Subsidiary with or into
another Person if the corporation surviving such consolidation or merger is
a Subsidiary and if, in each case, after giving effect thereto, no Default
shall have occurred and be continuing, (ii) the termination of the
corporate existence of any Material Subsidiary if the Borrower in good
faith determines that such termination is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders and (iii) the
discontinuance of the business of any Material Subsidiary if the Borrower
in good faith determines that such discontinuance is in the best interest
of the Borrower and is not materially disadvantageous to the Lenders.
SECTION 5.03. COMPLIANCE WITH THE LAWS. The Borrower will comply, and
cause each Material Subsidiary to comply, in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including, without limitation, Environmental Laws
and ERISA and the rules and regulations thereunder) except where (i) the
necessity of compliance therewith is contested in good faith by appropriate
proceedings or (ii) non-compliance therewith would not have a Material
Adverse Effect.
SECTION 5.04. MINIMUM CONSOLIDATED NET WORTH; CONSOLIDATED DEBT. If
the Consolidated Net Worth of the Borrower is less than $2,500,000,000 at
the end of any Fiscal Quarter, then the ratio of (x) Operating Cash Flow to
(y) Consolidated Debt shall be no less than .25 to 1 as of the end of such
Fiscal Quarter; provided that, for purposes of this Section, Consolidated
Debt shall not include (i) the Secured Notes if and so long as (1) neither
the Debt evidenced by the Secured Notes nor interest thereon is payable
other than solely from the Mortgaged Property and (2) the principal amount
of the Secured Notes is not increased and (ii) Debt of the Borrower in an
aggregate principal amount not to exceed $200,000,000 incurred for the
purpose of funding an employee stock ownership plan as defined in Section
4975(e)(7) of the Internal Revenue Code sponsored by the Borrower.
SECTION 5.05. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The
Borrower will not (i) consolidate or merge with or into any other Person or
(ii) sell, lease or otherwise transfer all or substantially all of its
assets to any other Person; provided that (x) the Borrower may merge with
any Wholly-Owned Consolidated Subsidiary if immediately after such merger
no Default shall have occurred and be continuing and such Wholly-Owned
Consolidated Subsidiary shall expressly assume in writing all of the
obligations of the Borrower hereunder, (y) the Borrower may merge with any
other Person if (A) the Borrower is the corporation surviving such merger
and (B) immediately after giving effect to such merger, no Default shall
have occurred and be continuing and (z) the Borrower may sell, transfer or
otherwise dispose of Margin Stock for fair value.
SECTION 5.06. USE OF PROCEEDS. The proceeds of the Loans made under
this Agreement will be used by the Borrower (i) to finance the acquisition
of Target Shares pursuant to the Offer and the Completion Procedures, (ii)
to repay other Debt incurred to finance the acquisition of Target Shares
pursuant to the Offer and the Completion Procedures, (iii) to finance open
market or privately negotiated purchases of Target Shares while the Offer
is continuing, up to an aggregate amount not exceeding $225,000,000, (iv)
to refinance certain Debt of Target and to pay fees and (v) expenses in
connection with the transactions contemplated hereby. None of such proceeds
will be used, directly or indirectly, in violation of Regulation U or X.
SECTION 5.07. NEGATIVE PLEDGE. Neither the Borrower nor any
Consolidated Subsidiary will create, assume or suffer to exist any Lien on
any asset now owned or thereafter acquired by it, except:
(a) Liens existing on the Mortgaged Property;
(b) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal or face
amount not exceeding $50,000,000;
(c) any Lien existing on any asset of any corporation at the time
such corporation becomes a Consolidated Subsidiary and not created in
contemplation of such event;
(d) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset,
provided that such Lien attaches to such asset concurrently with or within
90 days after the acquisition thereof;
(e) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into the Borrower or a
Consolidated Subsidiary and not created in contemplation of such event;
(f) any Lien existing on any asset prior to the acquisition thereof
by the Borrower or a Consolidated Subsidiary and not created in
contemplation of such acquisition;
(g) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that such Debt is not increased and is
not secured by any additional assets;
(h) Liens arising in the ordinary course of its business which (i) do
not secure Debt or Derivatives Obligations, (ii) do not secure, in the case
of judgments or orders, obligations in an aggregate amount exceeding
$50,000,000 and (iii) do not in the aggregate materially detract from the
value of its assets or materially impair the use thereof in the operation
of its business;
(i) Liens on cash and cash equivalents securing Derivatives
Obligations, provided that the aggregate amount of cash and cash
equivalents subject to such Liens may at no time exceed $50,000,000 and
provided further that the sum of (x) such aggregate amount and (y) the
aggregate amount of Debt secured as permitted by clause (k) below does not
at any date exceed 20% of Consolidated Tangible Net Worth;
(j) Liens on Margin Stock, if and to the extent that the value of
such Margin Stock exceeds 25% of the total assets of the Borrower and its
Consolidated Subsidiaries subject to this Section; and
(k) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt, provided that the sum of (x) the principal or face
amount of such Debt and (y) the aggregate amount of cash and cash
equivalents referred to in clause (i) above does not at any date exceed 20%
of Consolidated Tangible Net Worth.
SECTION 5.08. AMENDMENT OF MORTGAGE. No amendment of, or supplement
to, the Mortgage with respect to the Mortgaged Property shall be made which
could reasonably be expected to have an adverse effect on the interests of
the Lenders hereunder.
SECTION 5.09. TAXES, ETC. The Borrower will, and will cause each of
its Material Subsidiaries to:
(a) pay and discharge all taxes, assessments and governmental charges
or levies imposed on it or on its income or profits or on any of its
property prior to the date on which penalties attach thereto, except for
any such tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and against which
adequate reserves are being maintained or the nonpayment of which would not
have Material Adverse Effect;
(b) keep adequate records and books of account, in which complete
entries will be made in accordance with GAAP; and
(c) permit representatives of any Lender or the Administrative Agent,
during normal business hours, to examine, copy and make extracts from its
books and records, to inspect any of its properties, and to discuss its
business and affairs with its officers, all to the extent reasonably
requested by such Lender or the Administrative Agent (as the case may be).
ARTICLE 6
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT. If one or more of the following
events ("EVENTS OF DEFAULT") shall have occurred and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan
when due or shall fail to pay within five days of the due date any
interest, fee or other amount payable by it hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.04 through 5.08, inclusive;
(c) the Borrower shall fail to observe or perform any covenant
or agreement (other than those covered by clause 6.01(a) or 6.01(b)
above) contained in this Agreement or any amendment hereof for 10
days after the Administrative Agent gives notice thereof to the
Borrower at the request of any Lender;
(d) any representation, warranty, certification or statement
made (or deemed made) by the Borrower in this Agreement or any
amendment hereof or in any certificate, financial statement or other
document delivered pursuant to this Agreement shall prove to have
been incorrect in any material respect when made (or deemed made);
(e) the Borrower or any Subsidiary shall fail to make any
payment in respect of Material Financial Obligations (other than the
Secured Notes, but only so long as the Secured Notes do not
constitute Consolidated Debt for the purposes of Section 5.04) when
due or within any applicable grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt (other than the
Secured Notes, but only so long as the Secured Notes do not
constitute Consolidated Debt for the purposes of Section 5.04) or
enables (or, with the giving of notice or lapse of time or both,
would enable) the holder of such Debt or any Person acting on such
holder's behalf to accelerate the maturity thereof;
(g) the Borrower or any Subsidiary holding, as of the date of
the most recent audited financial statements of the Borrower and its
Consolidated Subsidiaries delivered pursuant to this Agreement,
assets have a book value in excess of $10,000,000, shall commence a
voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, or shall consent to any such
relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors,
or shall fail generally to pay its debts as they become due, or shall
take any corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Borrower or any Subsidiary holding, as of the date of the
most recent audited financial statements of the Borrower and its
Consolidated Subsidiaries delivered pursuant to this Agreement,
assets having a book value in excess of $10,000,000 seeking
liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period
of 60 days; or an order for relief shall be entered against the
Borrower or any Subsidiary holding, as of the date of the most recent
audited financial statements of the Borrower and its Consolidated
Subsidiaries delivered pursuant to this Agreement, assets having a
book value in excess of $10,000,000 under the federal bankruptcy laws
as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $10,000,000 which it shall
have become liable to pay under Title IV of ERISA; or notice of
intent to terminate a Material Plan shall be filed under Title IV of
ERISA by any member of the ERISA Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings
under Title IV of ERISA to terminate, to impose liability (other than
for premiums under Section 4007 of ERISA) in respect of, or to cause
a trustee to be appointed to administer, any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal
from, or a default, within the meaning of Section 4219(c)(5) of
ERISA, with respect to, one or more Multiemployer Plans which could
reasonably be expected to cause one or more members of the ERISA
Group to incur a current payment obligation in excess of $15,000,000;
(j) judgments or orders for the payment of money exceeding
$50,000,000 in aggregate amount shall be rendered against the
Borrower or any Subsidiary and such judgments or orders shall
continue unsatisfied and unstayed for a period of 30 days;
(k) any person or group of persons (within the meaning of
Section 13 or 14 of the Exchange Act) other than the Borrower, any
trustee or other fiduciary holding securities under an employee
benefit plan of the Borrower, or any corporation owned, directly or
indirectly, by the stockholders of the Borrower in substantially the
same proportions as their ownership of stock in the Borrower, shall
have acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the SEC under the Exchange Act) of 50% or more of the
combined voting power of the Borrower's then outstanding securities;
or, during any period of 24 consecutive calendar months, individuals
who were directors of the Borrower on the first day of such period
and any new director whose election by the board of directors of the
Borrower or nomination for election by the Borrower's stockholders
was approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the beginning of such
period or whose election or nomination for election was previously so
approved, shall cease to constitute a majority of the board of
directors of the Borrower; or
(l) the Borrower shall repudiate, or shall challenge the
validity or enforceability of, its obligations under Article 9 or a
court of competent jurisdiction shall have determined that such
obligations are invalid or unenforceable;
then, and in every such event, the Administrative Agent shall:
(i) if requested by Lenders having more than 50% in aggregate
amount of the Commitments, by notice to the Borrower terminate the
Commitments or reduce the Commitments ratably to an aggregate amount
specified in such notice, whereupon the Commitments shall be so
terminated or reduced forthwith; provided that, until either all
Target Shares have been acquired pursuant to the Offer and the
Completion Procedures or the Offer Termination Date has occurred, the
Commitments shall not be terminated pursuant to this clause (i) or
reduced pursuant to this clause (i) to an aggregate amount less than
the maximum aggregate amount from time to time remaining to be paid
(on the assumption that all outstanding Target Shares will be
acquired) to accepting shareholders pursuant to the Offer and the
Completion Procedures; and
(ii) if requested by Lenders holding more than 50% of the
aggregate unpaid principal amount of the Loans, by notice to the
Borrower declare the Loans (together with accrued interest thereon)
to be, and the Loans (together with accrued interest thereon) shall
thereupon become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower;
provided that, if any Event of Default specified in clause (g) or (h) of
this Section occurs with respect to the Borrower, then without any notice
to the Borrower or any other act by the Administrative Agent or the
Lenders, the Commitments shall thereupon terminate and the Loans (together
with accrued interest thereon) shall become immediately due and payable
without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower. Except as provided in the
foregoing proviso, neither the Administrative Agent nor any Lender shall,
at any time before the Offer Termination Date, be entitled to (i) enjoin
the funding of the Offer, (ii) exercise any right of rescission or set-off
or similar right or (iii) attempt in any other manner to obtain payment
from funds drawn hereunder to fund the Offer and the Completion Procedures,
in each case if and to the extent that to do so would prevent the funding
of the Offer and the Completion Procedures as contemplated hereby upon
satisfaction of the conditions set forth in Section 3.02.
SECTION 6.02. NOTICE OF DEFAULT. The Administrative Agent shall give
notice to the Borrower under Section 6.01(c) promptly upon being requested
to do so by any Lender and shall thereupon notify all the Lenders thereof.
ARTICLE 7
THE AGENTS
SECTION 7.01. APPOINTMENT AND AUTHORIZATION. Each Lender irrevocably
appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms hereof or thereof,
together with all such powers as are reasonably incidental thereto.
SECTION 7.02. ADMINISTRATIVE AGENT AND AFFILIATES. The Administrative
Agent shall have the same rights and powers under this Agreement as any
other Lender and may exercise or refrain from exercising the same as though
it were not the Administrative Agent, and Morgan Guaranty Trust Company of
New York and its affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any
Subsidiary or affiliate of the Borrower as if it were not the
Administrative Agent.
SECTION 7.03. ACTION BY ADMINISTRATIVE AGENT. The obligations of the
Administrative Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Administrative Agent
shall not be required to take any action with respect to any Default,
except as expressly provided in Article 6.
SECTION 7.04. CONSULTATION WITH EXPERTS. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower),
independent public accountants and other experts selected by it and shall
not be liable for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants or
experts.
SECTION 7.05. LIABILITY OF ADMINISTRATIVE AGENT. None of the
Administrative Agent, its affiliates and their respective directors,
officers, agents and employees shall be liable for any action taken or not
taken by it in connection herewith (i) with the consent or at the request
of the Required Lenders (or such different number of Lenders as any
provision hereof expressly requires for such consent or request) or (ii) in
the absence of its own gross negligence or willful misconduct. None of the
Administrative Agent, its affiliates and their respective directors,
officers, agents and employees shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Borrower; (iii) the satisfaction of any condition
specified in Article 3 except, in the case of the Administrative Agent,
receipt of items required to be delivered to it; or (iv) the validity,
effectiveness or genuineness of this Agreement, the Notes or any other
instrument or writing furnished in connection herewith. The Administrative
Agent shall not incur any liability by acting in reliance upon any notice,
consent, certificate, statement or other writing (which may be a bank wire,
telex, facsimile or similar writing) believed by it to be genuine or to be
signed by the proper party or parties. Without limiting the generality of
the foregoing, the use of the term "agent" in this Agreement with reference
to the Administrative Agent is not intended to connote any fiduciary or
other implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market
custom and is intended to create or reflect only an administrative
relationship between independent contracting parties.
SECTION 7.06. INDEMNIFICATION. The Lenders shall, ratably in
proportion to their Credit Exposures, indemnify the Administrative Agent,
its affiliates and their respective directors, officers, agents and
employees (to the extent not reimbursed by the Borrower) against any cost,
expense (including counsel fees and disbursements), claim, demand, action,
loss or liability (except such as result from such indemnitees' gross
negligence or willful misconduct) that such indemnitees may suffer or incur
in connection with this Agreement or any action taken or omitted by such
indemnitees hereunder.
SECTION 7.07. CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance on any other Lender Party, and based on
such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance on any other
Lender Party, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking any action under this Agreement.
SECTION 7.08. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative
Agent may resign at any time by giving notice thereof to the Lenders and
the Borrower. Upon any such resignation, the Required Lenders shall have
the right to appoint a successor Administrative Agent, subject to the
approval of such successor Administrative Agent by the Borrower. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders and approved by the Borrower, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent gives
notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent, which
shall be a commercial bank organized or licensed under the laws of the
United States or of any State thereof and having a combined capital and
surplus of at least $100,000,000. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent resigns as
Administrative Agent hereunder, the provisions of this Article shall inure
to its benefit as to actions taken or omitted to be taken by it while it
was Administrative Agent.
SECTION 7.09. ADMINISTRATIVE AGENT'S FEE. The Borrower shall pay to
the Administrative Agent for its own account fees in the amounts and at the
times previously agreed upon by the Borrower and the Administrative Agent.
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR
UNFAIR. If on or before the first day of any Interest Period for any
Euro-Dollar Loans:
(a) the Administrative Agent is advised by the Reference Lenders
that deposits in Dollars in the applicable amounts are not being
offered to the Reference Lenders in the London interbank market for
such Interest Period, or
(b) Lenders having at least 50% in aggregate amount of the
Commitments advise the Administrative Agent that the London Interbank
Offered Rate as determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Lenders of funding
their Euro-Dollar Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Lenders, whereupon until the Administrative Agent notifies
the Borrower and the Lenders that the circumstances giving rise to such
suspension no longer exist, (i) the obligations of the Lenders to make
Euro-Dollar Loans or to continue or convert outstanding Loans as or into
Euro-Dollar Loans shall be suspended and (ii) each outstanding Euro-Dollar
Loan shall be converted into a Base Rate Loan on the last day of the then
current Interest Period applicable thereto. Unless the Borrower notifies
the Administrative Agent at least two Domestic Business Days before the
date of any affected Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, such
Borrowing shall instead be made as a Base Rate Borrowing.
SECTION 8.02. ILLEGALITY. If, on or after the date hereof, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its Euro-Dollar Lending Office)
with any request or directive (whether or not having the force of law) of
any such authority, central bank or comparable agency, shall make it
unlawful or impossible for any Lender (or its Euro-Dollar Lending Office)
to make, maintain or fund its Euro-Dollar Loans and such Lender shall so
notify the Administrative Agent, the Administrative Agent shall forthwith
give notice thereof to the other Lenders and the Borrower, whereupon until
such Lender notifies the Borrower and the Administrative Agent that the
circumstances giving rise to such suspension no longer exist, the
obligation of such Lender to make Euro-Dollar Loans or to continue
outstanding Loans to the Borrower as Euro- Dollar Loans, shall be
suspended. Before giving any notice to the Administrative Agent pursuant to
this Section, such Lender shall designate a different Euro-Dollar Lending
Office if such designation will avoid the need for giving such notice and
will not, in the judgment of such Lender, be otherwise disadvantageous to
such Lender. If such notice is given, each Euro-Dollar Loan of such Lender
then outstanding to the Borrower shall be converted to a Base Rate Loan
either (a) on the last day of the then current Interest Period applicable
to such Euro-Dollar Loan if such Lender may lawfully continue to maintain
and fund such Loan as a Euro-Dollar Loan to such day or (b) immediately if
such Lender shall determine that it may not lawfully continue to maintain
and fund such Loan as a Euro-Dollar Loan to such day. Interest and
principal on any such Base Rate Loan shall be payable on the same dates as,
and on a pro rata basis with, the interest and principal payable on the
related Euro-Dollar Loans of the other Lenders.
SECTION 8.03. INCREASED COST AND REDUCED RETURN. (a) If on or after
the date hereof, the adoption of any applicable law, rule or regulation, or
any change in any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable
Lending Office) with any request or directive (whether or not having the
force of law) of any such authority, central bank or comparable agency,
shall impose, modify or deem applicable any reserve (including, without
limitation, any such requirement imposed by the Board of Governors of the
Federal Reserve System, but excluding any such requirement with respect to
which such Lender is entitled to compensation during the relevant Interest
Period under Section 2.13), special deposit, insurance assessment or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (or its Applicable Lending Office) or
shall impose on any Lender (or its Applicable Lending Office) or the London
interbank market any other condition affecting its Euro-Dollar Loans, its
Notes or its obligation to make Euro-Dollar Loans and the result of any of
the foregoing is to increase the cost to such Lender (or its Applicable
Lending Office) of making or maintaining any Euro-Dollar Loan, or to reduce
the amount of any sum received or receivable by such Lender (or its
Applicable Lending Office) under this Agreement or under its Note with
respect thereto, by an amount deemed by such Lender to be material, then,
within 15 days after demand by such Lender (with a copy to the
Administrative Agent), the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such
increased cost or reduction.
(b) If any Lender shall have determined that, after the date hereof,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change
in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or any request or directive
regarding capital adequacy (whether or not having the force of law) of any
such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on capital of such Lender (or its
Parent) as a consequence of such Lender's obligations hereunder to a level
below that which such Lender (or its Parent) could have achieved but for
such adoption, change, request or directive (taking into consideration its
policies with respect to capital adequacy) by an amount deemed by such
Lender to be material, then from time to time, within 15 days after demand
by such Lender (with a copy to the Administrative Agent), the Borrower
shall pay to such Lender such additional amount or amounts as will
compensate such Lender (or its Parent) for such reduction.
(c) Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Lender to compensation
pursuant to this Section and will designate a different Applicable Lending
Office if such designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the judgment of such Lender, be
otherwise disadvantageous to it. A certificate of any Lender claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Lender may use any
reasonable averaging and attribution methods.
SECTION 8.04. TAXES. (a) For the purposes of this Section, the
following terms have the following meanings:
"TAXES" means any and all present or future taxes or other charges
deducted, withheld or otherwise imposed with respect to any payment by the
Borrower pursuant to this Agreement or any Note, and all liabilities with
respect thereto, excluding with respect to each Lender Party: (i) taxes
imposed on its net income, and franchise or similar taxes imposed on it, by
a jurisdiction under the laws of which it is organized or in which its
principal executive office is located or in which its Applicable Lending
Office is located and (ii) any United States withholding tax imposed on
such payment, but not excluding any portion of such tax that exceeds the
United States withholding tax which would have been imposed on such a
payment to such Lender Party under the laws and treaties in effect when
such Lender Party first becomes a party to this Agreement.
"OTHER TAXES" means any present or future stamp or documentary taxes
and any other excise or property taxes, or similar charges or levies, which
arise from any payment made pursuant to this Agreement or any Note or from
the execution, delivery, registration or enforcement of, or otherwise with
respect to, this Agreement or any Note.
(b) All payments by the Borrower to or for the account of any Lender
Party hereunder or under any Note shall be made without deduction for any
Taxes or Other Taxes; provided that, if the Borrower shall be required by
law to deduct any Taxes or Other Taxes from any such payment, (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) such Lender Party 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 taxation authority or other authority in
accordance with applicable law and (iv) the Borrower shall promptly furnish
to the Administrative Agent, at its address specified in or pursuant to
Section 9.01, the original or a certified copy of a receipt evidencing
payment thereof.
(c) The Borrower agrees to indemnify each Lender Party for the full
amount of Taxes and Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed or asserted (whether or not correctly) by any
jurisdiction on amounts payable under this Section) paid by such Lender
Party and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall be
paid within 15 days after such Lender Party makes demand therefor.
(d) Each Lender Party organized under the laws of a jurisdiction
outside the United States, before it signs and delivers this Agreement in
the case of each Lender Party listed on the signature pages hereof and
before it becomes a Lender Party in the case of each other Lender Party,
and from time to time thereafter if requested in writing by the Borrower
(but only so long as such Lender Party remains lawfully able to do so),
shall provide the Borrower and the Administrative Agent with Internal
Revenue Service form 1001 or 4224, as appropriate, or any successor form
prescribed by the Internal Revenue Service, certifying that such Lender
Party is entitled to benefits under an income tax treaty to which the
United States is a party which exempts such Lender Party from United States
withholding tax or reduces the rate of withholding tax on payments of
interest for the account of such Lender Party or certifying that the income
receivable by it pursuant to this Agreement is effectively connected with
the conduct of a trade or business in the United States.
(e) For any period with respect to which a Lender Party has failed to
provide the Borrower or the Administrative Agent with the appropriate form
referred to in Section 8.04(d) (unless such failure is due to a change in
treaty, law or regulation occurring after the date on which such form
originally was required to be provided), such Lender Party shall not be
entitled to indemnification under Section 8.04(b) or 8.04(c) with respect
to Taxes imposed by the United States; provided that if a Lender Party,
that is otherwise exempt from or subject to a reduced rate of withholding
tax, becomes subject to Taxes because of its failure to deliver a form
required hereunder, the Borrower shall take such steps as such Lender Party
shall reasonably request to assist such Lender Party to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for
the account of any Lender Party pursuant to this Section as a result of a
change in law or treaty occurring after such Lender Party first became a
party to this Agreement, then such Lender Party will, at the Borrower's
request, change the jurisdiction of its Applicable Lending Office if, in
the judgment of such Lender, such change (i) will eliminate or reduce any
such additional payment which may thereafter accrue and (ii) is not
otherwise disadvantageous to such Lender.
SECTION 8.05. BASE RATE LOANS SUBSTITUTED FOR AFFECTED EURO-DOLLAR
LOANS. If (i) the obligation of any Lender to make, or to continue or
convert outstanding Loans as or to, Euro-Dollar Loans has been suspended
pursuant to Section 8.02 or (ii) any Lender has demanded compensation under
Section 8.03 or 8.04 with respect to its Euro-Dollar Loans, and in any such
case the Borrower shall, by at least five Euro-Dollar Business Days' prior
notice to such Lender through the Administrative Agent, have elected that
the provisions of this Section shall apply to such Lender, then, unless and
until such Lender notifies the Borrower that the circumstances giving rise
to such suspension or demand for compensation no longer exist, all Loans
which would otherwise be made by such Lender as (or continued as or
converted to) Euro-Dollar Loans shall instead be Base Rate Loans on which
interest and principal shall be payable contemporaneously with the related
Euro-Dollar Loans of the other Lenders. If such Lender notifies the
Borrower that the circumstances giving rise to such suspension or demand
for compensation no longer exist, the principal amount of each such Base
Rate Loan shall be converted into a Euro-Dollar Loan on the first day of
the next succeeding Interest Period applicable to the related Euro-Dollar
Loans of the other Lenders.
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. NOTICES. All notices, requests and other communications
to any party hereunder shall be in writing (including bank wire, telex,
facsimile or similar writing) and shall be given to such party: (a) in the
case of the Borrower or the Administrative Agent, at its address, facsimile
number or telex number set forth on the signature pages hereof, (b) in the
case of any Lender, at its address, facsimile number or telex number set
forth in its Administrative Questionnaire or (c) in the case of any party,
at such other address, facsimile number or telex number as such party may
hereafter specify for the purpose by notice to the Administrative Agent and
the Borrower. Each such notice, request or other communication shall be
effective (i) if given by telex, when transmitted to the telex number
referred to in this Section and the appropriate answerback is received,
(ii) if given by facsimile, when transmitted to the facsimile number
referred to in this Section and confirmation of receipt is received, (iii)
if given by mail, 72 hours after such communication is deposited in the
mails with first class postage prepaid, addressed as aforesaid or (iv) if
given by any other means, when delivered at the address referred to in this
Section; provided that notices to the Administrative Agent under Article 2
or Article 8 shall not be effective until received.
SECTION 9.02. NO WAIVERS. No failure or delay by any Lender Party in
exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 9.03. EXPENSES; INDEMNIFICATION. (a) The Borrower shall pay
(i) all out-of-pocket expenses of the Administrative Agent, including fees
and disbursements of special counsel for the Administrative Agent, in
connection with the preparation and administration of this Agreement, any
waiver or consent hereunder or any amendment hereof or any Default or
alleged Default hereunder and (ii) if an Event of Default occurs, all
out-of-pocket expenses incurred by each Lender Party, including (without
duplication) the fees and disbursements of outside counsel and the
allocated cost of inside counsel, in connection with such Event of Default
and collection, bankruptcy, insolvency and other enforcement proceedings
resulting therefrom.
(b) The Borrower agrees to indemnify each Lender Party, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "INDEMNITEE") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs
and expenses of any kind, including, without limitation, the reasonable
fees and disbursements of counsel, which may be incurred by such Indemnitee
in connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto)
brought or threatened relating to or arising out of this Agreement or any
actual or proposed use of proceeds of Loans hereunder; provided that no
Indemnitee shall have the right to be indemnified hereunder for such
Indemnitee's own gross negligence or willful misconduct as determined by a
court of competent jurisdiction.
SECTION 9.04. SET-OFFS. (a) If (i) an Event of Default has occurred
and is continuing and (ii) the requisite Lenders have requested the
Administrative Agent to declare the Loans to be immediately due and payable
pursuant to Section 6.01, or the Loans have become immediately due and
payable without notice as provided in Section 6.01, then each Lender Party
is hereby authorized by the Borrower at any time and from time to time, to
the extent permitted by applicable law, without notice to the Borrower (any
such notice being expressly waived by the Borrower), to set off and apply
all deposits (general or special, time or demand, provisional or final) at
any time held, other than deposits held by the Borrower as fiduciary for
other Persons, and other indebtedness at any time owing by such Lender
Party to or for the account of the Borrower against any obligations of the
Borrower to such Lender Party now or hereafter existing under this
Agreement, regardless of whether any such deposit or other obligation is
then due and payable or is in the same currency or is booked or otherwise
payable at the same office as the obligation against which it is set off
and regardless of whether such Lender Party shall have made any demand for
payment under this Agreement. Each Lender Party agrees promptly to notify
the Borrower after any such set-off and application made by such Lender
Party; provided that any failure to give such notice shall not affect the
validity of such setoff and application. The rights of the Lender Parties
under this subsection are in addition to any other rights and remedies
which they may have.
(b) Each Lender agrees that if it shall, by exercising any right of
set-off or counterclaim or otherwise, receive payment of a proportion of
the aggregate amount of principal and interest then due with respect to the
Loans held by it which is greater than the proportion received by any other
Lender in respect of the aggregate amount of principal and interest then
due with respect to the Loans held by such other Lender, the Lender
receiving such proportionately greater payment shall purchase such
participations in the Loans held by the other Lenders, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Loans held by the Lenders shall
be shared by the Lenders pro rata; provided that nothing in this Section
shall impair the right of any Lender to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise
to the payment of indebtedness of the Borrower other than its indebtedness
in respect of the Loans. The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation
in a Loan, whether or not acquired pursuant to the foregoing arrangements,
may exercise rights of set-off or counterclaim and other rights with
respect to such participation as fully as if such holder of a participation
were a direct creditor of the Borrower in the amount of such participation.
SECTION 9.05. AMENDMENTS AND WAIVERS. Any provision of this Agreement
or the Notes may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower and the Required Lenders
(and, if the rights or duties of any Agent are affected thereby, by such
Agent); provided that no such amendment or waiver shall, unless signed by
all the Lenders,(i) increase or decrease the Commitment of any Lender
(except for a ratable decrease in the Commitments of all the Lenders) or
subject any Lender to any additional obligation, (ii) reduce the principal
of or rate of interest on any Loan or any fees hereunder, (iii) postpone
the date fixed for any payment of principal of or interest on any Loan or
any fees hereunder or for the termination of any Commitment or (iv) change
the percentage of the Commitments or of the aggregate unpaid principal
amount of the Loans, or the number of Lenders, which shall be required for
the Lenders or any of them to take any action under this Section or any
other provision of this Agreement.
SECTION 9.06. SUCCESSORS; PARTICIPATIONS AND ASSIGNMENTS. (a) The
provisions of this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns, except
that the Borrower may not assign or otherwise transfer any of its rights
under this Agreement without the prior written consent of all the Lenders.
(b) Any Lender may at any time grant to one or more banks or other
institutions (each a "PARTICIPANT") participating interests in its
Commitment or any or all of its Loans. If a Lender grants any such
participating interest to a Participant, whether or not upon notice to the
Borrower and the Administrative Agent, such Lender shall remain responsible
for the performance of its obligations hereunder, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement pursuant to which any Lender may grant such a
participating interest shall provide that such Lender shall retain the sole
right and responsibility to enforce the obligations of the Borrower
hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement;
provided that such participation agreement may provide that such Lender
will not agree to any modification, amendment or waiver of this Agreement
described in clause (i), (ii) or (iii) of Section 9.05 without the consent
of the Participant. The Borrower agrees that each Participant shall, to the
extent provided in its participation agreement, be entitled to the benefits
of Section 2.13 and Article 8 with respect to its participating interest.
An assignment or other transfer which is not permitted by Section 9.06(c)
or 9.06(d) below shall be given effect for purposes of this Agreement only
to the extent of a participating interest granted in accordance with this
subsection.
(c) Any Lender may at any time assign to one or more banks or other
institutions (each an "ASSIGNEE") all, or a proportionate part (equivalent
to an initial Commitment of not less than $10,000,000) of all, of its
rights and obligations under this Agreement and its Notes, and such
Assignee shall assume such rights and obligations, pursuant to an
Assignment and Assumption Agreement substantially in the form of Exhibit B
hereto signed by such Assignee and such transferor Lender, with (and
subject to) the subscribed consent of the Borrower and the Administrative
Agent, which consents shall not be unreasonably withheld; provided that if
an Assignee is an affiliate of such transferor Lender or was a Lender
immediately before such assignment, no such consent shall be required. When
such instrument has been signed and delivered by the parties thereto and
such Assignee has paid to such transferor Lender the purchase price agreed
between them, such Assignee shall be a Lender party to this Agreement and
shall have all the rights and obligations of a Lender with a Commitment as
set forth in such instrument of assumption, and the transferor Lender shall
be released from its obligations hereunder to a corresponding extent, and
no further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this subsection, the transferor
Lender, the Administrative Agent and the Borrower shall make appropriate
arrangements so that, if required, new Notes are issued to the Assignee. In
connection with any such assignment, the transferor Lender shall pay to the
Administrative Agent an administrative fee for processing such assignment
in the amount of $2,500. If the Assignee is not incorporated under the laws
of the United States or a State thereof, it shall deliver to the Borrower
and the Administrative Agent certification as to exemption from deduction
or withholding of United States federal income taxes in accordance with
Section 8.04.
(d) Any Lender may at any time assign all or any portion of its
rights under this Agreement and its Notes to a Federal Reserve Bank. No
such assignment shall release the transferor Lender from its obligations
hereunder.
(e) No Assignee, Participant or other transferee of any Lender's
rights shall be entitled to receive any greater payment under Section 8.03
or 8.04 than such Lender would have been entitled to receive with respect
to the rights transferred, unless such transfer is made with the Borrower's
prior written consent or by reason of the provisions of Section 8.02, 8.03
or 8.04 requiring such Lender to designate a different Applicable Lending
Office under certain circumstances or at a time when the circumstances
giving rise to such greater payment did not exist.
SECTION 9.07. NO RELIANCE ON MARGIN STOCK. Each Lender represents to
the Administrative Agent and each of the other Lenders that it in good
faith is not relying upon any Margin Stock as collateral in the extension
or maintenance of the credit provided for in this Agreement.
SECTION 9.08. GOVERNING LAW; SUBMISSION TO JURISDICTION. This
Agreement and each Note shall be governed by and construed in accordance
with the laws of the State of New York. The Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the
Southern District of New York and of any New York State court sitting in
New York City for purposes of all legal proceedings arising out of or
relating to this Agreement or the transactions contemplated hereby. The
Borrower irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient
forum.
SECTION 9.09. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This
Agreement may be signed in any number of counterparts, each of which shall
be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Agreement constitutes the entire
agreement and understanding among the parties hereto and supersedes any and
all prior agreements and understandings, oral or written, relating to the
subject matter hereof. This Agreement shall become effective upon receipt
by the Administrative Agent of counterparts hereof signed by each of the
parties hereto (or, in the case of any party as to which an executed
counterpart shall not have been received, receipt by the Administrative
Agent in form satisfactory to it of telegraphic, telex, facsimile or other
written confirmation from such party of execution of a counterpart hereof
by such party).
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and
year first above written.
MARSH & MCLENNAN COMPANIES, INC.
By: ________________________________
Name:
Title:
Address:
1166 Avenue of the Americas
New York, New York 10036-2774
Facsimile: (212) ____-_____
Web Site: www.marshmac.com
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
as Lender and Administrative Agent
By: ________________________________
Name:
Title:
Address:
60 Wall Street
New York, New York 10260-0060
Facsimile: (212) 648-5249
COMMITMENT SCHEDULE
LENDER COMMITMENT
Morgan Guaranty Trust Company of New York $2,250,000,000
--------------
Total $2,250,000,000
PRICING SCHEDULE
The "EURO-DOLLAR MARGIN" and "FACILITY FEE RATE" mean, on any date
when such rates are to be determined in accordance with this Pricing
Schedule, the per annum rates set forth below in the applicable row under
the column corresponding to the Status and Utilization that exist on such
day:
Status Level I Level II Level III Level IV
- ---------------------------- ------- -------- --------- --------
Euro-Dollar Margin
If Utilization is equal
to or less than 50% 0.20% 0.24% 0.28% 0.37%
If Utilization exceeds 50% 0.45% 0.49% 0.53% 0.62%
Facility Fee Rate 0.05% 0.06% 0.07% 0.08%
For purposes of this Schedule, the following terms have the following
meanings:
"LEVEL I STATUS" exists at any date if, at such date, the Borrower's
commercial paper is rated A-1+ by S&P and P-1 by Moody's.
"LEVEL II STATUS" exists at any date if, at such date, the Borrower's
commercial paper is rated A-1 by S&P and P-1 by Moody's.
"LEVEL III STATUS" exists at any date if, at such date, (i) the
Borrower's commercial paper is rated A-1 or higher by S&P and P-2 by
Moody's or (ii) the Borrower's commercial paper is rated A-2 by S&P and P-1
by Moody's.
"LEVEL IV STATUS" exists at any date if, at such date, no other
Status exists.
"STATUS" refers to the determination of which of Level I Status,
Level II Status, Level III Status or Level IV Status exists at any date.
"UTILIZATION" means, at any date, the percentage equivalent of a
fraction (i) the numerator of which is the aggregate outstanding principal
amount of the Loans at such date, after giving effect to any borrowing or
payment on such date and (ii) the denominator of which is the aggregate
amount of the Commitments at such date, after giving effect to any
reduction of the Commitments on such date. For purposes of this schedule,
if for any reason any Loans remain outstanding after termination of the
Commitments, the utilization on each date on or after the date of such
termination shall be deemed to be greater than 50%.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the Borrower's commercial paper without third-party credit
enhancement and any rating assigned to any other debt security of the
Borrower shall be disregarded. The rating in effect for any date is that in
effect at the close of business on such date.
EXHIBIT A
FORM OF NOTE
New York, New York
___________ __, ____
For value received, MARSH & McLENNAN COMPANIES, INC., a Delaware
corporation (the "BORROWER"), promises to pay to the order of
______________________ (the "LENDER"), for the account of its Applicable
Lending Office, the unpaid principal amount of each Loan made by the Lender
to the Borrower pursuant to the Credit Agreement referred to below on the
maturity date provided for in the Credit Agreement. The Borrower promises
to pay interest on the unpaid principal amount of each such Loan on the
dates and at the rate or rates provided for in the Credit Agreement. All
such payments of principal and interest shall be made in lawful money of
the United States in Federal or other immediately available funds at the
office of Morgan Guaranty Trust Company of New York, at 60 Wall Street, New
York, New York.
All Loans made by the Lender and all repayments of the principal
thereof shall be recorded by the Lender and, if the Lender so elects in
connection with any transfer or enforcement hereof, appropriate notations
to evidence the foregoing information with respect to each such Loan then
outstanding may be endorsed by the Lender on the schedule attached hereto,
or on a continuation of such schedule attached to and made a part hereof;
provided that the failure of the Lender to make (or any error in making)
any such recordation or endorsement shall not affect the Borrower's
obligations hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement
dated as of August 24, 1998 among Marsh & McLennan Companies, Inc., the
Lenders party thereto and Morgan Guaranty Trust Company of New York, as
Administrative Agent (as the same may be amended from time to time, the
"CREDIT AGREEMENT"). Terms defined in the Credit Agreement are used herein
with the same meanings. Reference is made to the Credit Agreement for
provisions for the prepayment hereof and the acceleration of the maturity
hereof.
MARSH & McLENNAN COMPANIES, INC.
By: ____________________________
Name:
Title:
LOANS AND PAYMENTS OF PRINCIPAL
AMOUNT OF
AMOUNT OF PRINCIPAL
DATE LOAN REPAID NOTATION MADE BY
- ---------------------------------------------------------------------------
EXHIBIT B
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of ________, ____ among [NAME OF ASSIGNOR] (the
"ASSIGNOR") and [NAME OF ASSIGNEE] (the "Assignee").
WHEREAS, this Assignment and Assumption Agreement (the "AGREEMENT")
relates to the Credit Agreement dated as of August 24, 1998 (as amended
from time to time, the "CREDIT AGREEMENT") among the Marsh & McLennan
Companies, Inc., the Lenders party thereto and Morgan Guaranty Trust
Company of New York, as Administrative Agent (the "ADMINISTRATIVE AGENT");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrower in an aggregate principal amount
at any time outstanding not to exceed $____________;
WHEREAS, Loans made to the Borrower by the Assignor under the Credit
Agreement in the aggregate principal amount of $__________ are outstanding
at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion
of its Commitment thereunder in an amount equal to $__________ (the
"ASSIGNED AMOUNT"), together with a corresponding portion of each of its
outstanding Loans, and the Assignee proposes to accept such assignment and
assume the corresponding obligations of the Assignor under the Credit
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to
the extent of the Assigned Amount and a corresponding portion of each of
its outstanding Loans, and the Assignee hereby accepts such assignment from
the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount. Upon the execution
and delivery hereof by the Assignor and the Assignee and the execution of
the consent attached hereto by the Borrower and the Administrative Agent
and the payment of the amounts specified in Section 3 required to be paid
on the date hereof, (i) the Assignee shall, as of the date hereof, succeed
to the rights and be obligated to perform the obligations of a Lender under
the Credit Agreement with a Commitment in an amount equal to the Assigned
Amount and acquire the rights of the Assignor with respect to a
corresponding portion of each of its outstanding Loans and (ii) the
Commitment of the Assignor shall, as of the date hereof, be reduced by the
Assigned Amount, and the Assignor shall be released from its obligations
under the Credit Agreement to the extent such obligations have been assumed
by the Assignee. The assignment provided for herein shall be without
recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on
the date hereof in Federal funds the amount heretofore agreed between
them.(1) Facility fees accrued before the date hereof are for the account
of the Assignor and such fees accruing on and after the date hereof with
respect to the Assigned Amount are for the account of the Assignee. Each of
the Assignor and the Assignee agrees that if it receives any amount under
the Credit Agreement which is for the account of the other party hereto, it
shall receive the same for the account of such other party to the extent of
such other party's interest therein and promptly pay the same to such other
party.
- ------------
1 Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any
portion of any upfront fee to be paid by the Assignor to the
Assignee. It may be preferable in an appropriate case to specify
these amounts generically or by formula rather than as a fixed sum.
SECTION 4. Consent of the Borrower and the Administrative Agent. This
Agreement is conditioned upon the consent of the Borrower and the
Administrative Agent pursuant to Section 9.06(c) of the Credit Agreement.
SECTION 5. Note. Pursuant to Section 9.06(c) of the Credit Agreement,
the Borrower has agreed to execute and deliver a Note payable to the order
of the Assignee to evidence the assignment and assumption provided for
herein.
SECTION 6. Non-reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no
responsibility with respect to, the solvency, financial condition or
statements of the Borrower, or the validity and enforceability of the
Borrower's obligations under the Credit Agreement or any Note. The Assignee
acknowledges that it has, independently and without reliance on the
Assignor, and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement and will continue to be responsible for making its own
independent appraisal of the business, affairs and financial condition of
the Borrower.
SECTION 7. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 8. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date
first above written.
[NAME OF ASSIGNOR]
By: _______________________________
Name:
Title:
[NAME OF ASSIGNEE]
By: _______________________________
Name:
Title:
The undersigned consent to the foregoing assignment.
MARSH & McLENNAN COMPANIES, INC.
By: ________________________________
Name:
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By: ________________________________
Name:
Title:
EXHIBIT 7.2(a)
To: Marsh & McLennan Companies, Inc. (OFFEROR)
J P Morgan & Co. Limited (J P MORGAN)
60 Victoria Embankment
London
EC4Y 0JP
DLJ Phoenix Securities Limited (DLJ PHOENIX)
99 Bishopsgate
London
EC2M 3XD
24th August and 25th August 1998
Dear Sirs,
We understand that Offeror intends to make an offer to acquire all of the
issued ordinary share capital of Sedgwick Group plc (OFFEREE) including all
of the American depository shares issued in respect of the ordinary shares
of Offeree (each representing five ordinary shares of Offeree as evidenced
by American depository receipts) (ADSS) substantially on the terms of the
attached draft press announcement. This letter sets out the terms and
conditions on which we will accept the Offer (as defined in paragraph 6 of
this undertaking) when it is made.
WARRANTIES AND UNDERTAKINGS
1. We warrant and undertake to Offeror that:
(a) we are the registered holder and the beneficial owner of the
number of ordinary shares of 10p each in the capital of Offeree
(including ADSs, if any) shown in Part A of the Schedule (the
OFFEREE SECURITIES) and that we hold these securities free of any
lien, charge, option, equity or encumbrance;
(b) before the Offer closes, lapses or is withdrawn, we shall not:
(i) sell, transfer, charge, encumber, grant any option over or
otherwise dispose of any Offeree Securities or any shares or
other securities in Offeree shown in Part B of the Schedule
or any other shares or securities in Offeree issued or
unconditionally allotted to us or otherwise acquired by us
before then (FURTHER OFFEREE SECURITIES) other than pursuant
to our acceptance of the Offer;
(ii) accept any other offer in respect of any shares or
securities referred to in paragraph 1(b)(i);
(iii) (other than pursuant to the Offer) enter into any
agreement or arrangement or permit any agreement or
arrangement to be entered into or incur any obligation
or permit any obligation to arise:
(A) to do any of the acts referred to in paragraphs 1(b)(i)
or (ii);
(B) in relation to, or operating by reference to, the
Offeree Securities or any Further Offeree Securities;
or
(C) which, in relation to the Offeree Securities or any
Further Offeree Securities, would or might restrict or
impede us accepting the Offer,
and, for the avoidance of doubt, references in this
paragraph 1(b) (iii) to any agreement, arrangement or
obligation includes any agreement, arrangement or obligation
whether or not legally binding or subject to any condition
or which is to take effect if the Offer closes or lapses or
if this undertaking ceases to be binding or following any
other event; or
(iv) save for the acquisition of any further shares or other
securities in Offeree on the exercise of options referred to
in Part B of the Schedule, we shall not purchase, sell or
otherwise deal in any shares or other securities of Offeree
or Offeror or any interest therein (including any
derivatives referenced to any such securities);
(c) the Schedule contains full and accurate details of all the shares
and other securities in Offeree:
(i) of which we are the registered holder or beneficial owner;
(ii) to which we are entitled upon the exercise of any option,
warrant or other right to acquire or subscribe for shares or
other securities in Offeree whether or not such rights are
currently exercisable or subject to any condition, and
we confirm that we have no other rights or interests in relation
to any shares or other securities of Offeree; and
(d) we have full power and authority to enter into this undertaking
and to accept the Offer in respect of the Offeree Securities.
UNDERTAKING TO ACCEPT THE OFFER
2. In consideration of Offeror's agreement in paragraph 8.1 to make the
Offer, we undertake that:
(a) we shall accept the Offer in respect of the Offeree Securities in
accordance with the procedure for acceptance set out in the
formal document containing the Offer (the OFFER DOCUMENT) not
later than seven days after Offeror posts the Offer Document to
Offeree shareholders;
(b) we shall accept the Offer in respect of any Further Offeree
Securities in accordance with the procedure for acceptance set
out in the Offer Document not later than two days after the date
we become the registered holder of the Further Offeree
Securities;
(c) although the terms of the Offer will confer a right of withdrawal
on accepting shareholders, we shall not withdraw any acceptances
of the Offer; and
(d) Offeror shall acquire the Offeree Securities and any Further
Offeree Securities from us free of any lien, charge, option,
equity or encumbrance and together with all rights of any nature
attaching to those shares including the right to all dividends
declared or paid after the date of this undertaking, except for
the interim dividend of 3p per Offeree Share payable on 19
October 1998 to Offeree shareholders on the register at the close
of business on 21 August 1998.
VOTING RIGHTS
3.1 From the time Offeror announces the Offer to the time the Offer
becomes wholly unconditional, lapses or is withdrawn:
(a) we shall exercise the voting rights attached to our Offeree
Securities and any Further Offeree Securities on a Relevant
Resolution (as defined in paragraph 3.3) only in accordance with
Offeror's directions; and
(b) we shall exercise the rights attaching to our Offeree Securities
to requisition or join in requisitioning any general or class
meeting of Offeree for the purposes of considering a Relevant
Resolution and to require Offeree pursuant to s376 of the Act to
give notice of such a resolution only in accordance with
Offeror's directions.
3.2 For the purpose of voting on a Relevant Resolution, we shall execute
any form of proxy required by Offeror appointing any person nominated by
Offeror to attend and vote at the relevant general meeting of Offeree.
3.3 A Relevant Resolution means:
(a) a resolution (whether or not amended) proposed at a general or
class meeting of Offeree, or at an adjourned meeting, the passing
of which is necessary to implement the Offer or which, if passed,
might result in any condition of the Offer not being fulfilled or
which might impede or frustrate the Offer in any way;
(b) a resolution to adjourn a general or class meeting of Offeree
whose business includes the consideration of a resolution falling
within paragraph 3.3(a); and
(c) a resolution to amend a resolution falling within paragraph
3.3(a)or (b).
Documentation
4.1 We consent to:
(a) the inclusion of references to us and this undertaking in
Offeror's announcement of the Offer (the PRESS ANNOUNCEMENT) as
they appear in the attached draft of the Press Announcement; and
(b) particulars of this undertaking and our holdings of, and dealings
in, relevant securities of Offeree and Offeror being included in
the Offer Document and any other related or ancillary document as
required by the City Code on Takeovers and Mergers (the CODE)
and/or all applicable United States securities laws and
regulations (US SECURITIES LAWS).
4.2 We shall promptly give you all information and any assistance as you
may reasonably require for the preparation of the Offer Document and all
related and ancillary documents in order to comply with the requirements
of the Code, US Securities Laws and any other legal or regulatory
requirement or body. We shall immediately notify you in writing of any
material change in the accuracy or impact of any information previously
given to you.
SECRECY
5. We shall keep secret:
(a) the possibility, terms and conditions of the Offer and the
existence and terms of this undertaking until the Press
Announcement is released; and
(b) the terms of this undertaking until the Offer Document is
posted, provided that we may disclose the same to Offeree and its advisers
in which case we shall procure that they observe secrecy in the same
terms. The obligations in this paragraph shall survive termination of this
undertaking.
INTERPRETATION
6. In this undertaking the OFFER means the offer to be made by or on
behalf of Offeror to acquire all the issued ordinary share capital of
Offeree, including the ADSs, substantially on the terms of the Press
Announcement or on such other terms as may be agreed between Offeror and
Offeree or as may be required to comply with the requirements of the Panel
on Takeovers and Mergers (the PANEL) or US Securities Laws or such other
laws or regulations as may be relevant. A reference in this undertaking to
the OFFER also includes any new, increased, renewed or revised offer made
by or on behalf of Offeror to acquire shares in Offeree, provided that the
terms of such offer are, in the opinion of J P Morgan and DLJ Phoenix (the
BANKS) no less favourable to acceptors than the terms set out in the Press
Announcement.
TIME OF THE ESSENCE
7. Any time, date or period mentioned in this undertaking may be extended
by mutual agreement but as regards any time, date or period originally
fixed or as extended, time shall be of the essence.
THE OFFER
8.1 Subject to paragraph 8.2, Offeror agrees to make the Offer by no later
than 4th September 1998 (or such later date as Offeror and Offeree may
agree). provided that the Press Announcement is released in substantially
the form attached (or in such other form as may be agreed between Offeror
and Offeree or as may be required to comply with the requirements of the
Panel or US Securities Laws or such other laws or regulations as may be
relevant). The release of the Press Announcement is at Offeror's absolute
discretion. In particular, Offeror reserves the right not to release the
Press Announcement unless the board of directors of Offeree agrees to
recommend the Offer.
8.2 If after Offeror releases the Press Announcement:
(a) the Panel consents to Offeror not making the Offer;
(b) an event occurs which means that Offeror is no longer required by
the Code to proceed with the Offer; or
(c) Offeror becomes aware that any condition of the Offer as set out
in the Press Announcement has or may become incapable of being
fulfilled,
Offeror shall not be obliged to make the Offer.
8.3 This undertaking shall lapse if:
(a) the Press Announcement is not released by 25th August 1998 (or
such later date as Offeror and Offeree may agree);
(b) the Offer is not made in the circumstances referred to in
paragraph 8.2;
(c) the Offer lapses or is withdrawn;
(d) a cash offer (or the cash alternative of any share offer) is made
by any third party at a price equal to or exceeding 250.5 pence
per Sedgwick Group plc ordinary share; or
(e) a share offer (without a cash alternative) is made by any third
party the value of which on the day such offer is made is equal
to or exceeds 250.5 pence per Sedgwick Group plc ordinary share.
If the undertaking lapses, we shall have no claim against
Offeror.
CONFIRMATION
9. We confirm that in signing this letter we are not a customer of either
of the Banks for the purposes of the Rules of The Securities and Futures
Authority Limited and that neither of the Banks owe us any of the duties
which it owes to its customers. We confirm that we have been given an
adequate opportunity to consider whether or not to give this undertaking
and to obtain independent advice.
ADEQUACY OF DAMAGES
10. We agree that, if we fail to accept the Offer in accordance with this
undertaking or breach any of our obligations, damages would not be an
adequate remedy and accordingly Offeror shall be entitled to the remedy of
injunction, specific performance or any other such equitable relief.
GOVERNING LAW
11. This undertaking shall be governed by and construed in accordance with
English law and we submit to the exclusive jurisdiction of the English
courts for all purposes in connection with this undertaking.
SCHEDULE
EXISTING HOLDINGS
PART A - REGISTERED AND BENEFICIAL HOLDINGS OF OFFEREE SECURITIES
REGISTERED HOLDER AND BENEFICIAL OWNER ORDINARY SHARES OF 10P EACH
VARIOUS CLIENTS OF SILCHESTER INVESTORS
INTERNATIONAL 24,000,000
PART B - OTHER HOLDINGS OF OFFEREE SECURITIES
OPTIONS ORDINARY
SHARES OF 10P EACH
- -
SIGNED and DELIVERED as a DEED by )
)
acting by two Directors/a Director and )
the Secretary )
Director Michael JJ. Cowan
Director/Secretary Andrew Simmonds
24th and 25th August 1998
EXHIBIT 7.2(b)
To: Marsh & McLennan Companies, Inc. (OFFEROR)
_____ 1998
Dear Sirs,
I understand that Offeror intends to make an offer to acquire all of the
issued ordinary share capital of Sedgwick Group plc (OFFEREE) including all
of the American depository shares issued in respect of the ordinary shares
of Offeree (each representing five ordinary shares of Offeree as evidenced
by American depository receipts) (ADSS), substantially on the terms of the
attached draft press announcement. This letter sets out the terms and
conditions on which I will accept the Offer (as defined in paragraph 4 of
this undertaking) when it is made.
WARRANTIES AND UNDERTAKINGS
1.I warrant and undertake to Offeror that:
(a) I am the registered holder and beneficial owner of the number of
ordinary shares of 10p each in the capital of Offeree (including
ADSs, if any) shown in Part A of the Schedule (the OFFEREE
SECURITIES) and that I hold these securities free of any lien,
charge, option, equity or encumbrance;
(b) before the Offer closes, lapses or is withdrawn, I shall not:
(i) sell, transfer, charge, encumber, grant any option over or
otherwise dispose of any Offeree Securities or any shares or
other securities convertible into shares in Offeree shown in
Part B of the Schedule or any other shares or securities
convertible into shares in Offeree issued or unconditionally
allotted to me or otherwise acquired by me before then
(FURTHER OFFEREE SECURITIES) other than pursuant to my
acceptance of the Offer;
(ii) accept any other offer in respect of the shares or securities
referred to in paragraph 1(b)(i);
(iii) (other than pursuant to the Offer) enter into any
agreement or arrangement or permit any agreement or
arrangement to be entered into or incur any obligation or
permit any obligation to arise:
(A) to do any of the acts referred to in paragraphs 1(b)(i)
or (ii);
(B) in relation to, or operating by reference to, the Offeree
Securities or any Further Offeree Securities; or
(C) which, in relation to the Offeree Securities or any
Further Offeree Securities, would or might restrict or
impede me accepting the Offer,
and, for the avoidance of doubt, references in this
paragraph 1(b)(iii) to any agreement, arrangement or
obligation includes any agreement, arrangement or obligation
whether or not legally binding or subject to any condition or
which is to take effect if the Offer closes or lapses or if
this undertaking ceases to be binding or following any other
event; or
(iv) save for the acquisition of any further shares or other
securities in Offeree on the exercise of options referred to
in Part B of the Schedule, I shall not purchase, sell or
otherwise deal in any shares or other securities convertible
into shares of Offeree or Offeror or any interest therein
(including any derivatives referenced to such securities);
(c) the Schedule contains full and accurate details of all the shares
or other securities convertible into shares in Offeree:
(i) of which I am the registered holder or beneficial owner;
(ii) to which I am entitled upon the exercise of any option,
warrant or other right to acquire or subscribe for shares or
other securities in Offeree whether or not such rights are
currently exercisable or subject to any condition, and
I confirm that I have no other rights or interests in relation to
any shares or other securities convertible into shares of Offeree;
and
(d) I have full power and authority to enter into and perform any
obligation under this undertaking and to accept the Offer in
respect of the Offeree Securities.
UNDERTAKING TO ACCEPT THE OFFER
2. In consideration of Offeror's agreement in paragraph 6.1 to make the
Offer, I undertake that:
(a) I shall accept the Offer in respect of the Offeree Securities in
accordance with the procedure for acceptance set out in the formal
document containing the Offer (the OFFER DOCUMENT) not later than
ten days after Offeror posts the Offer Document to Offeree
shareholders;
(b) I shall accept the Offer in respect of any Further Offeree
Securities in accordance with the procedure for acceptance set out
in the Offer Document not later than five days after the date I
become the registered holder of the Further Offeree Securities;
(c) although the terms of the Offer will confer a right of withdrawal
on accepting shareholders, I shall not withdraw any acceptances of
the Offer; and
(d) Offeror shall acquire the Offeree Securities and any Further
Offeree Securities from me free of any lien, charge, option, equity
or encumbrance and together with all rights of any nature attaching
to those shares including the right to all dividends declared or
paid after the date of this undertaking, except for the interim
dividend of 3p per Offeree Share payable on 19 October 1998 to
Offeree shareholders on the register at the close of business on 21
August 1998.
DOCUMENTATION
3. I consent to:
(a) the inclusion of references to me and this undertaking in Offeror's
announcement of the Offer (the PRESS ANNOUNCEMENT) as they appear
in the attached draft of the Press Announcement; and
(b) particulars of this undertaking and my holdings of, and dealings
in, relevant securities of Offeree and Offeror being included in
the Offer Document and any other related or ancillary document as
required by the Code and/or all applicable United States securities
laws and regulations (US SECURITIES LAWS).
INTERPRETATION
4. In this undertaking the OFFER means the offer to be made by or on behalf
of Offeror to acquire all the issued ordinary share capital of Offeree,
including the ADSs, substantially on the terms of the Press Announcement or
on such other terms as may be agreed between Offeror and Offeree or as may
be required to comply with the requirements of the Panel on Takeovers and
Mergers (the PANEL) or US Securities Laws or such other laws or regulations
as may be relevant. A reference in this undertaking to the OFFER also
includes any new, increased, renewed or revised offer made by or on behalf
of Offeror to acquire shares in Offeree, provided that the terms of such
offer are, in the opinion of JP Morgan and DLJ Phoenix (the BANKS) no less
favourable to acceptors than the terms set out in the Press Announcement.
TIME OF THE ESSENCE
5. Any time, date or period mentioned in this undertaking may be extended
by mutual agreement but as regards any time, date or period originally
fixed or as extended, time shall be of the essence.
THE OFFER
6.1 Subject to paragraph 6.2, Offeror agrees to make the Offer by no
later than 4 September 1998 (or such later date as Offeror and Offeree may
agree) provided that the Press Announcement is released in substantially
the form attached (or in such other form as may be agreed between Offeror
and Offeree or as may be required to comply with the requirements of the
Panel or US Securities Laws or such other laws as may be relevant). The
release of the Press Announcement is at Offeror's absolute discretion. In
particular, Offeror reserves the right not to release the Press
Announcement unless the board of directors of Offeree agrees to recommend
the Offer.
6.2 If after Offeror releases the Press Announcement either:
(a) the Panel consents to Offeror not making the Offer;
(b) an event occurs which means that Offeror is no longer required by
the Code to proceed with the Offer; or
(c) Offeror becomes aware that any condition of the Offer as set out in
the Press Announcement has or may become incapable of being
fulfilled,
Offeror shall not be obliged to make the Offer.
6.3 This undertaking shall lapse if:
(a) the Press Announcement is not released by 26 August 1998 (or such
later date as Offeror and Offeree may agree);
(b) the Offer is not made in the circumstances referred to in paragraph
6.2; or
(c) the Offer lapses or is withdrawn.
If the undertaking lapses, I shall have no claim against Offeror.
DIRECTOR'S UNDERTAKINGS\
7. I shall not directly or indirectly (except where required by my
fiduciary duties as a director of Offeree or by my duties under the Code):
(a) solicit or encourage any person other than Offeror to make any
offer for any shares or other securities of Offeree or to indicate
the basis on which any such offer might be made or enter into
discussions relating to any possible offer; or
(b) take any action which is inconsistent with my obligations contained
in this undertaking or the successful implementation of the Offer.
CONFIRMATION
8. I confirm that in signing this letter I am not a customer of either of
the Banks for the purposes of the Rules of The Securities and Futures
Authority Limited and that neither of the Banks owes me any of the duties
which it owes to its customers. I confirm that I have been given an
adequate opportunity to consider whether or not to give this undertaking
and to obtain independent advice.
ADEQUACY OF DAMAGES
9. I agree that, if I fail to accept the Offer in accordance with this
undertaking or breach any of my obligations, damages would not be an
adequate remedy and accordingly Offeror shall be entitled to the remedy of
injunction or specific performance or any other such equitable relief.
GOVERNING LAW
10. This undertaking shall be governed by and construed in accordance
with English law and I submit to the exclusive jurisdiction of the English
courts for all purposes in connection with this undertaking.
SCHEDULE
EXISTING HOLDINGS
PART A - REGISTERED AND BENEFICIAL HOLDINGS OF OFFEREE SECURITIES
REGISTERED HOLDER AND BENEFICIAL OWNER ORDINARY SHARES OF 10P EACH
PART B - OTHER HOLDINGS OF OFFEREE SECURITIES
OPTIONS ORDINARY
SHARES OF 10P EACH
SIGNED and DELIVERED as a DEED by
Yours faithfully,
Signature....................
Name.........................
in the presence of:
Signature of witness:.........................
Name ..............................................
Address ............................................
EXHIBIT 7.2(c)
J.P. MORGAN LETTERHEAD
[Vendor]
25 August 1998
Dear Sirs
RECOMMENDED CASH OFFER FOR SEDGWICK GROUP PLC ("SEDGWICK")
We refer to the recommended cash offer (the "Offer") for the entire issued
and to be issued share capital of Sedgwick by Morgan Guaranty Trust Company
of New York and Donaldson, Lufkin & Jenrette International on behalf of
Marsh & McLennan Companies, Inc ("Marsh & McLennan") which was announced on
25 August 1998.
You agree that you will sell, and we agree that we will, on behalf of Marsh
& McLennan, purchase, conditional on (1) the expiration or termination of
all applicable waiting periods under the Hart-Scott Rodino Anti-Trust
Improvements Act of 1976 as amended, (the "HSR Act"), (2) there being in
existence no order of any United States court enjoining such sale and
purchase, and (3) appropriate exemptive relief for the making of purchases
of shares in the capital of Sedgwick ("Sedgwick Shares") by Marsh &
McLennan outside of the Offer having been obtained from the United States
Securities and Exchange Commission, [ ] Sedgwick Shares at a price of
225 pence per Sedgwick Share (the "Sale") being the price payable to
holders of Sedgwick Shares under the Offer.
We both further agree, subject to the above, to effect the Sale through an
On-Exchange transaction as defined by the rules of the London Stock
Exchange with a view to the Sale settling [ ] calendar days after the
expiration or termination of all applicable waiting periods under the HSR
Act.
This letter of agreement will lapse if the applicable waiting periods under
the HSR Act have not expired by midnight New York time on Sunday 27th
September 1998. If this letter of agreement lapses, we shall have no claim
against you and you shall have no claim against us. It is noted that, by
execution of this letter, each party warrants to the other that it has full
right, power and authority and has taken all action necessary to execute
and deliver and to exercise its rights and performance obligations under
this letter.
This letter is to be construed in accordance with and governed by English
Law.
Please acknowledge your agreement to the above by signing and returning the
enclosed copy letter.
--------------------------------------
Signed for and on behalf of
J.P. Morgan Securities Limited
We hereby acknowledge receipt of your letter and agree to sell the [ ]
Sedgwick Shares on the terms set out therein.
-------------------------------------
Signed for and on behalf of [Vendor]
