UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 21, 2004
-----------------
EATON VANCE CORP.
------------------
(Exact name of registrant as specified in its charter)
Maryland 1-8100 04-2718215
---------------------------- ------------------------ ------------------
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
255 State Street, Boston, Massachusetts 02109
---------------------------------------- -----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (617) 482-8260
--------------
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
INFORMATION INCLUDED IN THE REPORT
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
On December 21, 2004, Eaton Vance Corp. (the "Company") executed a
revolving credit facility with JPMorgan Chase Bank, as administrative agent,
J.P. Morgan Securities Inc., as lead arranger and sole bookmaker, and Bank of
America. Citibank, N.A., Credit Suisse First Boston, PNC Bank, N.A., UBS Loan
Finance LLC and Wachovia Bank, N.A., as lenders. The Company's wholly owned
subsidiary, Eaton Vance Management ("EVM") acts as guarantor of the Company's
obligations under the facility. The facility, which expires in December 2009,
provides that EVC may borrow up to $180 million at LIBOR-based rates of interest
that vary depending on the level of usage of the facility and the credit ratings
of certain notes issued by EVM. The agreement contains financial covenants with
respect to leverage and interest coverage and requires the Company to pay an
annual commitment fee on any unused portion.
The facility replaced a credit facility between EVM and several banks that
allowed EVM to borrow up to $170 million under similar terms and conditions. The
EVM facility terminated in accordance with its terms on December 21, 2004.
EVM, as investment advisor to certain Eaton Vance closed-end mutual funds
has entered into Shareholder Servicing Agreements and Underwriting Agreements
with UBS Securities, LLC, an affiliate of UBS Loan Finance. In addition,
affiliates of the other lenders on occasion act as underwriters of certain Eaton
Vance close-end mutual funds.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS.
Exhibit No. Document
----------- --------
99.1 Revolving Credit Facility
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
EATON VANCE CORP.
(Registrant)
Date: December 23, 2004 /s/ William M. Steul
--------------------------------------------
William M. Steul, Chief Financial Officer
EXHIBIT INDEX
Each exhibit is listed in this index according to the number assigned to it
in the exhibit table set forth in Item 601 of Regulation S-K. The following
exhibit is filed as part of this Report:
Exhibit No. Description
----------- -----------
99.1 Revolving Credit Agreement
Exhibit 99.1
CREDIT AGREEMENT
dated as of
December 21, 2004
among
EATON VANCE CORP.,
as Borrower
EATON VANCE MANAGEMENT,
as Guarantor,
The Lenders Party Hereto,
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
$180,000,000 REVOLVING CREDIT FACILITY
================================================================================
J.P. MORGAN SECURITIES INC.,
as Lead Arranger and Sole Bookrunner
TABLE OF CONTENTS
PAGE
ARTICLE I Definitions................................................1
SECTION 1.01. Defined Terms...........................................1
SECTION 1.02. Classification of Loans and Borrowings.................14
SECTION 1.03. Terms Generally........................................14
SECTION 1.04. Accounting Terms; GAAP.................................15
ARTICLE II The Credits...............................................15
SECTION 2.01. Commitments............................................15
SECTION 2.02. Loans and Borrowings...................................15
SECTION 2.03. Requests for Borrowings................................16
SECTION 2.04. Funding of Borrowings..................................17
SECTION 2.05. Interest Elections.....................................17
SECTION 2.06. Termination and Reduction of Commitments...............18
SECTION 2.07. Repayment of Loans; Evidence of Debt...................19
SECTION 2.08. Prepayment of Loans....................................19
SECTION 2.09. Fees...................................................20
SECTION 2.10. Interest...............................................21
SECTION 2.11. Alternate Rate of Interest.............................21
SECTION 2.12. Increased Costs........................................22
SECTION 2.13. Break Funding Payments.................................23
SECTION 2.14. Taxes..................................................23
SECTION 2.15. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs....................................24
SECTION 2.16. Mitigation Obligations; Replacement of Lenders.........25
SECTION 2.17. New Lenders; Commitment Increases......................26
ARTICLE III Representations and Warranties............................27
SECTION 3.01. Organization; Powers...................................27
SECTION 3.02. Authorization; Enforceability..........................27
SECTION 3.03. Governmental Approvals; No Conflicts...................27
SECTION 3.04. Financial Condition; No Material Adverse Effect........28
SECTION 3.05. Properties.............................................28
SECTION 3.06. Litigation and Environmental Matters...................28
SECTION 3.07. Compliance with Laws and Agreements....................29
SECTION 3.08. Investment and Holding Company Status..................29
SECTION 3.09. Taxes..................................................29
SECTION 3.10. ERISA..................................................29
SECTION 3.11. Disclosure.............................................30
SECTION 3.12. No Default.............................................30
SECTION 3.13. Subsidiaries...........................................30
SECTION 3.14. Federal Regulations....................................30
SECTION 3.15. No Burdensome Restrictions.............................31
i
ARTICLE IV Conditions................................................31
SECTION 4.01. Effective Date.........................................31
SECTION 4.02. Each Credit Event......................................32
ARTICLE V Affirmative Covenants.....................................32
SECTION 5.01. Financial Statements and Other Information.............32
SECTION 5.02. Notices of Material Events.............................34
SECTION 5.03. Existence; Conduct of Business.........................35
SECTION 5.04. Payment of Obligations.................................35
SECTION 5.05. Maintenance of Properties; Insurance...................35
SECTION 5.06. Books and Records; Inspection Rights...................35
SECTION 5.07. Compliance with Laws...................................35
SECTION 5.08. Use of Proceeds........................................35
SECTION 5.09. Environmental Laws.....................................36
ARTICLE VI Negative Covenants........................................36
SECTION 6.01. Financial Condition Covenants..........................36
SECTION 6.02. Indebtedness...........................................36
SECTION 6.03. Liens..................................................37
SECTION 6.04. Fundamental Changes....................................38
SECTION 6.05. Investments, Loans, Advances, Guarantees and
Acquisitions; Hedging Agreements.......................39
SECTION 6.06. Restricted Payments....................................40
SECTION 6.07. Transactions with Affiliates...........................40
SECTION 6.08. Changes in Fiscal Periods..............................40
SECTION 6.09. Limitation on Sale of Assets...........................40
ARTICLE VII Events of Default.........................................41
ARTICLE VIII The Administrative Agent..................................46
ARTICLE IX Miscellaneous.............................................48
SECTION 9.01. Notices................................................48
SECTION 9.02. Waivers; Amendments....................................48
SECTION 9.03. Expenses; Indemnity; Damage Waiver.....................49
SECTION 9.04. Successors and Assigns.................................50
SECTION 9.05. Survival...............................................52
SECTION 9.06. Counterparts; Integration; Effectiveness...............52
SECTION 9.07. Severability...........................................53
SECTION 9.08. Right of Setoff........................................53
SECTION 9.09. Governing Law; Jurisdiction; Consent to
Service of Process.....................................53
SECTION 9.10. WAIVER OF JURY TRIAL...................................54
SECTION 9.11. Headings...............................................54
SECTION 9.12. Confidentiality........................................54
SECTION 9.13. Interest Rate Limitation...............................55
ii
ANNEXES
Annex A -- Pricing Grid
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.06 -- Disclosed Matters
Schedule 3.13 -- Subsidiaries
Schedule 6.02 -- Existing Indebtedness
Schedule 6.03 -- Existing Liens
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Borrowing Request
Exhibit C -- Form of Interest Election Request
Exhibit D -- Form of Opinion of Borrower's Counsel
iii
CREDIT AGREEMENT dated as of December 21, 2004, among EATON VANCE CORP.
(the "Borrower"), EATON VANCE MANAGEMENT (the "Guarantor"), the LENDERS party
hereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent.
W I T N E S S E T H :
- - - - - - - - - -
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JP Morgan Chase Bank, N.A., in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified; provided,
however, that the Borrower shall not be deemed an Affiliate of any Subsidiary
and no Subsidiary shall be deemed an Affiliate of Borrower.
"Aggregate Revenue Base" means the sum of Revenue Bases for all Eaton Vance
Funds and for all other assets managed by the Borrower or any Subsidiary of the
Borrower for other entities.
"Agreement" means this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1% and (b) the Prime Rate in effect on such day. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the percentage
of the total Commitments represented by such Lender's Commitment. If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any permitted assignments.
"Applicable Margin" means, for any day, with respect to any ABR Loan or
Eurodollar Loan, the applicable percentage determined pursuant to the Pricing
Grid attached hereto as Annex A.
"Applicable Utilization Fee Rate" means, for any day, the applicable rate
per annum determined pursuant to the Pricing Grid attached hereto as Annex A.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity that administers or
manages a Lender.
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent and the
Borrower.
"Availability Period" means the period from and including the Effective
Date to but excluding the Termination Date.
"B Shares" has the meaning assigned to such term in the definition of
"Distribution Fees" in this Section 1.01.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means Eaton Vance Corp., a Maryland corporation.
"Borrower Obligations": the collective reference to the unpaid principal of
and interest on the Loans and all other obligations and liabilities of the
Borrower (including, without limitation, interest accruing at the then
applicable rate provided in this Agreement after the maturity of the Loans and
interest accruing at the then applicable rate provided in this Agreement after
the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
to the Administrative Agent or any Lender, whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement or any
other document made, delivered or given in connection with any of the foregoing,
2
in each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Administrative Agent or
to the Lenders that are required to be paid by the Borrower pursuant to the
terms of any of this Agreement).
"Borrowing" means Loans of the same Type, made, converted or continued on
the same date and, in the case of Eurodollar Loans, as to which a single
Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a Borrowing in
accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof) of shares
representing more than 51% of the aggregate ordinary voting power represented by
the issued and outstanding Capital Stock of the Borrower; or (b) the acquisition
of direct or indirect Control of the Borrower by any Person or group.
"Change in Law" means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority as
evidenced in writing by any publication of such Governmental Authority after the
date of this Agreement or (c) compliance by any Lender (or, for purposes of
Section 2.12(b), by any lending office of such Lender or by such Lender's
holding company, if any) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued after
the date of this Agreement.
"Closing Date" means the date on which the conditions precedent set forth
in Section 4.01 shall have been satisfied or waived in accordance with Section
9.02, which date is December 21, 2004.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
3
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Loans hereunder, expressed as an amount representing the maximum
aggregate outstanding principal amount of such Lender's Loans hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.06, (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04 and (c) increased from time to time pursuant to
Section 2.17. The initial amount of each Lender's Commitment is set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Commitment, as applicable, and the initial aggregate
amount of the Commitments of the Lenders (as set forth on Schedule 2.01) is
$180,000,000.
"Commitment Utilization Percentage" means on any day the percentage
equivalent of a fraction (a) the numerator of which is the sum of the aggregate
outstanding principal amount of Loans and (b) the denominator of which is the
aggregate amount of the Commitments (or, on any day after termination of the
Commitments, the aggregate amount of the Commitments in effect immediately
preceding such termination).
"Confidential Information Memorandum" means the Confidential Information
Memorandum dated November 2004 and furnished to the Lenders.
"Consolidated Cash Flow" means, for any period of four consecutive fiscal
quarters, the average of (i) Consolidated EBITDA for the last fiscal quarter in
such period multiplied by four and (ii) the aggregate sum of Consolidated EBITDA
for such period.
"Consolidated EBITDA" means, for any period, Consolidated Net Income for
such period plus, without duplication and to the extent reflected as a charge in
the statement of such Consolidated Net Income for such period, the sum of (a)
income tax expense, (b) interest expense, amortization or writeoff of debt
discount and debt issuance costs and commissions, discounts and other fees and
charges associated with Indebtedness (including the Loans), (c) depreciation and
amortization expense, (d) amortization of intangibles (including, but not
limited to, write-offs of goodwill) and organization costs, and (e) any
extraordinary, unusual or non-recurring non-cash expenses or losses (including,
whether or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, non-cash losses on sales of assets
outside of the ordinary course of business), minus any extraordinary, unusual or
non-recurring income or gains (including, whether or not otherwise includable as
a separate item in the statement of such Consolidated Net Income for such
period, gains on the sales of assets outside of the ordinary course of
business), and any other non-cash income, all as determined on a consolidated
basis. For the purposes of calculating Consolidated EBITDA for any period of
four consecutive fiscal quarters (each, a "Reference Period") pursuant to any
determination of the Consolidated Leverage Ratio, (i) if at any time during such
Reference Period the Borrower or any Subsidiary shall have made any Material
Disposition, the Consolidated EBITDA for such Reference Period shall be reduced
by an amount equal to the Consolidated EBITDA (if positive) attributable to the
property that is the subject of such Material Disposition for such Reference
Period or increased by an amount equal to the Consolidated EBITDA (if negative)
attributable thereto for such Reference Period and (ii) if during such Reference
Period the Borrower or any Subsidiary shall have made a Material Acquisition,
Consolidated EBITDA for such Reference Period shall be calculated after giving
pro forma effect thereto as if such Material Acquisition occurred on the first
4
day of such Reference Period. As used in this definition, "Material Acquisition"
and "Material Disposition" refer to any acquisition of or combination with a
business or any disposition of a business by the Borrower or any of its
Subsidiaries which would be considered significant for purposes of the pro forma
financial information requirements of Regulation S-X of the Securities and
Exchange Commission.
"Consolidated Funded Debt" means, at any date, the aggregate principal
amount of all Indebtedness of the Borrower and its Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Coverage Ratio" means, for any period, the ratio of
(a) Consolidated Cash Flow for such period to (b) Consolidated Interest Expense
for such period.
"Consolidated Interest Expense" means, for any period, interest expense
(including that attributable to Capital Lease Obligations) of the Borrower and
its Subsidiaries for such period with respect to all outstanding Indebtedness of
the Borrower and its Subsidiaries (including all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net costs under Hedging Agreements in respect of
interest rates to the extent such net costs are allocable to such period in
accordance with GAAP).
"Consolidated Leverage Ratio" means, as at the last day of any period of
four consecutive fiscal quarters, the ratio of (a) Consolidated Funded Debt on
such day to (b) Consolidated Cash Flow for such period.
"Consolidated Net Income" means, for any period, the consolidated net
income (or loss) of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income (or deficit) of any Person accrued prior to the date it
becomes a Subsidiary of the Borrower or is merged into or consolidated with the
Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person
(other than a Subsidiary of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of any
Subsidiary of the Borrower to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation or Requirement of Law
applicable to such Subsidiary.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any material agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
5
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"Distribution Fees" means all fees payable pursuant to a plan contemplated
by Rule 12b-1 under the Investment Company Act of 1940, as amended, in
connection with the distribution of shares pursuant to such plan of Eaton Vance
Funds that are open-end funds (any such shares, "B Shares").
"dollars" or "$" refers to lawful money of the United States of America.
"Eaton Vance Fund" means any closed-end or open-end or other mutual fund, any
collateralized debt obligation or any privately offered investment vehicle
sponsored by the Borrower or any of its Subsidiaries or any fund for which the
Borrower or any of its Subsidiaries provides investment advisory, management,
administrative, underwriting or similar services.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Material or to health
and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
that, together with the Borrower, is treated as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of
the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
6
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans (other than a Plan that is a defined contribution plan) or to appoint a
trustee to administer any Plan; (f) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article VII.
"Excess Utilization Day" means each day on which the Commitment Utilization
Percentage exceeds the applicable percentage set forth in Section 2.09(b).
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.16(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
or is attributable to such Foreign Lender's failure or inability to comply with
Section 2.14(e), except to the extent that such Foreign Lender's assignor (if
any) was entitled, at the time of assignment, to receive additional amounts from
the Borrower with respect to such withholding tax pursuant to Section 2.14(a).
"Exposure" means, with respect to any Lender at any time, the sum of the
outstanding principal amount of such Lender's Loans at such time.
"Facility Fee Rate" has the meaning set forth in Annex A.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
7
"Financial Officer" means the chief financial officer, principal accounting
officer, treasurer or controller of the Borrower.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Fund" means any Person that is (or will be) engaged in making, purchasing,
holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United States
of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body (including
self-regulatory body), court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government, including, in any event, the Securities and
Exchange Commission and any applicable state securities commission or similar
body.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"Guarantor" means Eaton Vance Management, a Massachusetts business trust.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
8
"Hedging Agreement" means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding accounts
payable incurred in the ordinary course of business that are not more than 90
days past due), (f) all Indebtedness of others secured by any Lien on property
owned or acquired by such Person, whether or not the Indebtedness secured
thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of
others, (h) all Capital Lease Obligations of such Person, (i) all obligations,
contingent or otherwise, of such Person as an account party in respect of
letters of credit and letters of guaranty, (j) all obligations, contingent or
otherwise, of such Person in respect of bankers' acceptances and (k) for
purposes of Article VII(f) and (g) only, net liabilities of such Person under
Hedging Agreements.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Election Request" means a request by the Borrower to convert or
continue a Borrowing in accordance with Section 2.05.
"Interest Payment Date" means (a) with respect to any ABR Loan, the last
day of each March, June, September and December, and (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration,
after the first day of such Interest Period.
"Interest Period" means with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three, six or (if
available to all Lenders) twelve months thereafter, as the Borrower may elect,
and; provided, that (i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day, (ii) any
Interest Period pertaining to a Eurodollar Borrowing that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period, and
(iii) any Interest Period that would otherwise extend beyond the Termination
9
Date shall end on the Termination Date or such date of final payment, as the
case may be. For purposes hereof, the date of a Borrowing initially shall be the
date on which such Borrowing is made and, in the case of a Borrowing, thereafter
shall be the effective date of the most recent conversion or continuation of
such Borrowing.
"Lenders" means the Persons listed on Schedule 2.01 and any other Person
that shall have become a party hereto pursuant to an Assignment and Acceptance,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Screen (or on
any successor or substitute page of such Screen, or any successor to or
substitute for such Screen, providing rate quotations comparable to those
currently provided on such page of such Screen, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
"Loans" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"Management Contract" means an agreement, written or oral, pursuant to
which the Borrower or any Subsidiary of the Borrower provides (i) investment
advisory, management or administrative services to an Eaton Vance Fund or (ii)
investment advisory or management services to any Person, including, without
limitation, unregistered investment companies and personal or corporate
investment accounts.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, property, operating results, or condition, financial or
otherwise, of the Borrower and its Subsidiaries taken as a whole, or (b) the
validity or enforceability of this Agreement or the rights or remedies of the
Administrative Agent or the Lenders hereunder.
"Material Indebtedness" means Indebtedness (other than the Loans), or
obligations in respect of one or more Hedging Agreements, of any one or more of
the Borrower and its Subsidiaries in an aggregate principal amount exceeding
$25,000,000. For purposes of determining Material Indebtedness, the "principal
10
amount" of the obligations of the Borrower or any Subsidiary in respect of any
Hedging Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that the Borrower or such Subsidiary would be
required to pay if such Hedging Agreement were terminated at such time.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Asset Value" means, at any date of determination and with respect to
any investment company or account manager, the "current net asset" value (as
defined in Rule 2a-4 under the Investment Company Act of 1940), in the
aggregate, of all outstanding redeemable securities issued by such investment
company at such date.
"New Lender" has the meaning set forth in Section 2.17(a).
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Acquisition" means an acquisition of a Person, or the assets of
a Person or a line of business of a Person (whether by the merger, consolidation
or acquisition of Capital Stock or other equity interests, assets or any
combination thereof) in the same or a related line of business as the Borrower,
provided that after giving effect to such acquisition (a) no Default or Event of
Default shall have occurred and be continuing, (b) the Borrower shall be in
compliance, on a pro forma basis, as of the end of the most recent fiscal
quarter of the Borrower with the provisions of Section 6.01, and (c) in the case
of an acquisition involving aggregate consideration comprised of cash and any
assumed liabilities on the closing date of such acquisition equal to $75,000,000
or more, at least three Business Days prior to the date of such acquisition, the
Borrower shall have furnished to the Administrative Agent and the Lenders a
compliance certificate to the effect of clauses (a) and (b) showing in
reasonable detail the calculations supporting the determination of compliance,
on such a pro forma basis, with such provisions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes, assessments or other governmental
charges that are not yet due or are being contested in compliance with
Section 5.04;
(b) Carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 60 days
or are being contested in compliance with Section 5.04;
11
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary;
and
(f) judgment Liens in respect of judgments rendered against the
Borrower, any Subsidiary of the Borrower or any combination thereof (i)
that represent wholly insured Indebtedness, or partially insured or wholly
uninsured Indebtedness so long as the aggregate uninsured Indebtedness does
not exceed $25,000,000; or (ii) that are not in effect for more than 75
days; or (iii) that attach to an immaterial portion of the assets of the
applicable Person; or (iv) that individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect.
"Permitted Liens" has the meaning set forth in Section 6.03.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, borrower, partnership, Governmental Authority
or other entity.
"Plan" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pricing Grid" means the Pricing Grid attached hereto as Annex A.
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
12
"Required Lenders" means Lenders having Exposures and unused Commitments
representing at least 51% of the sum of the total Exposures and unused
Commitments at such time.
"Requirement of Law" means, as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Restricted Payment" means (i) any dividend or other distribution (whether
in cash, securities or other property) with respect to any shares of any class
of Capital Stock of the Borrower or any Subsidiary, or (ii) any payment (whether
in cash, securities or other property), including any sinking fund or similar
deposit, for (a) the purchase, redemption, retirement, acquisition, cancellation
or termination of any shares of the Borrower's Capital Stock or (b) any option,
warrant or other right to acquire any shares of the Borrower's Capital Stock.
"Revenue Base" means the sum of (A) the product of (i) with respect to each
Eaton Vance Fund, the Net Asset Value of the Eaton Vance Fund on the date of
calculation and with respect to assets managed for other entities, the market
value or Net Asset Value of such assets on the date of calculation and (ii) the
rate provided for in the applicable Management Contract for determining the
annual fee required for such advisory, management or administrative services on
such date and (B) Distribution Fees for such Eaton Vance Fund.
"S&P" means Standard & Poor's, a division of the McGraw Hill Companies.
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board or other Governmental Authority to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate. Such
reserve percentages shall include those imposed pursuant to Regulation D of the
Board. Eurodollar Loans shall be deemed to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"subsidiary" means, with respect to any Person (the "parent") at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50%
of the equity or more than 50% of the ordinary voting power or, in the case of a
13
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower except that no Eaton
Vance Fund shall be deemed to be a "Subsidiary" hereunder.
"Taxes" means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"Termination Date" means December 21, 2009 or such earlier date as the
Commitments shall terminate pursuant to the terms hereof (or, if such day is not
a Business Day, the next preceding Business Day).
"Transactions" means the execution, delivery and performance by the
Borrower and the Guarantor of this Agreement, the borrowing of Loans, the
guarantee by the Guarantor hereunder and the use of the proceeds of the Loans.
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
"Zero-Coupon Notes" means the Guarantor's $110,945,000 aggregate principal
amount at maturity zero-coupon exchangeable senior Liquid Yield Option Notes due
2031 issued pursuant to that certain Purchase Agreement dated August 7, 2001, as
amended or modified from time to time.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Type (e.g., a "Eurodollar
Loan"). Borrowings also may be classified and referred to by Type (e.g., a
"Eurodollar Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
14
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees to make Loans to the Borrower from time to time
during the Availability Period in an aggregate principal amount that will not
result in (a) such Lender's Exposure exceeding such Lender's Commitment or (b)
the sum of the total Exposures exceeding the total Commitments. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made as part of
a Borrowing consisting of Loans made by the Lenders ratably in accordance with
their respective Commitments. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and no
Lender shall be responsible for any other Lender's failure to make Loans as
required.
(b) Subject to Section 2.11, each Borrowing shall be comprised entirely of
ABR Loans or Eurodollar Loans as the Borrower may request in accordance
herewith. Each Lender at its option may make any Eurodollar Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000; provided that an
ABR Borrowing may be in an aggregate amount that is equal to the entire unused
15
balance of the total Commitments. Borrowings of more than one Type may be
outstanding at the same time; provided that there shall not at any time be more
than a total of ten (10) Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Termination Date.
SECTION 2.03. Requests for Borrowings. To request a Borrowing, the Borrower
shall notify the Administrative Agent of such request by telephone prior to
10:00 a.m., New York City time (a) three Business Days before the date of the
proposed Borrowing in the case of a Eurodollar Borrowing or (b) one Business Day
before the date of the proposed Borrowing in the case of an ABR Borrowing. Each
such telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request signed by the Chief Accounting Officer (or any successor
position thereof), the Treasurer or the Chief Financial Officer, in the form of
Exhibit B attached hereto or such other form as may be approved by the
Administrative Agent, which Borrowing Request shall be signed by the Borrower.
Each such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.04.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed
to have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
16
SECTION 2.04. Funding of Borrowings. (a) Each Lender shall make each Loan
to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds, to
an account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the Borrowing Request.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed 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 on such date in accordance with paragraph (a) of this
Section and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the Borrower severally agree to pay
to the Administrative Agent forthwith on demand such corresponding amount
with interest thereon, for each day from and including the date such amount
is made available to the Borrower to but excluding the date of payment to
the Administrative Agent, at (i) in the case of such Lender, the Federal
Funds Effective Rate or (ii) in the case of the Borrower, the interest rate
then applicable to such Borrowing. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.05. Interest Elections. (a) Each Borrowing initially shall be of
the Type specified in the applicable Borrowing Request and, in the case of a
Eurodollar Borrowing, shall have an initial Interest Period as specified in such
Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing
to a different Type or to continue such Borrowing and, in the case of a
Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in
this Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate
Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall notify
the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in
the form of Exhibit C attached hereto or such other form as may be approved by
the Administrative Agent, which Interest Election Request shall be signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall specify the
following information in compliance with Section 2.02:
17
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request
with respect to a Eurodollar Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at
the end of such Interest Period such Borrowing shall be continued as a
Eurodollar Borrowing with an Interest Period of one month. Notwithstanding any
contrary provision hereof, (a) if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the Required Lenders,
so notifies the Borrower, then, so long as an Event of Default is continuing,
each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of
the Interest Period applicable thereto, and (b) no Loan may be converted into or
continued as a Eurodollar Borrowing after the date that is one month prior to
the Termination Date.
SECTION 2.06. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Termination Date.
(b) The Borrower may at any time terminate, or from time to time reduce,
the Commitments; provided that (i) each reduction of the Commitments shall be in
an amount that is an integral multiple of $1,000,000 and not less than
$5,000,000 and (ii) the Borrower shall not terminate or reduce the Commitments
if, after giving effect to any concurrent prepayment of the Loans in accordance
with Section 2.08, the sum of the Exposures would exceed the total Commitments.
(c) The Borrower shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under paragraph (b) of this Section at least
three Business Days prior to the effective date of such termination or
18
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable; provided that a notice of termination of
the Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent.
Each reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Lender the then unpaid principal amount of each Loan on the Termination
Date (or such earlier date on which the Loans become due and payable pursuant to
Article VII).
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the Indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.08. Prepayment of Loans. (a) The Borrower shall have the right at
any time and from time to time to prepay any Borrowing in whole or in part,
subject to prior notice in accordance with paragraph (b) of this Section.
19
(b) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, or (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; provided that, if a notice of
prepayment is given in connection with a conditional notice of termination of
the Commitments as contemplated by Section 2.06, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with
Section 2.06. Promptly following receipt of any such notice relating to a
Borrowing, the Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Borrowing shall be in an amount that
would be permitted in the case of an advance of a Borrowing of the same Type as
provided in Section 2.02. Each prepayment of a Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.10.
SECTION 2.09. Fees. (a) The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a facility fee, which shall accrue at the
Facility Fee Rate on the average daily amount of the Commitment of such Lender
(whether used or unused), during the period from and including the Closing Date
to but excluding the date on which such Commitment terminates; provided that, if
such Lender continues to have any outstanding Loans after its Commitment
terminates, then such facility fee shall continue to accrue on the average daily
amount of such Lender's outstanding Loans from and including the date on which
its Commitment terminates to but excluding the date on which such Lender ceases
to have any outstanding Loans. Accrued facility fees shall be payable in arrears
on the last day of March, June, September and December of each year and on the
date on which the Commitments terminate, commencing on the first such date to
occur after the date hereof; provided that any facility fees accruing after the
date on which the Commitments terminate shall be payable on demand. All facility
fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day).
(b) The Borrower agrees to pay to the Administrative Agent for the account
of each Lender a utilization fee equal to the Applicable Utilization Fee Rate
per annum for each day on which the Commitment Utilization Percentage exceeds
50%, which fee shall accrue on the daily amount of such Lender's outstanding
Loans for each Excess Utilization Day during the period from and including the
day on which the Commitment Utilization Percentage exceeds 50% to but excluding
the day on which the Commitment Utilization Percentage no longer exceeds 50%.
Accrued utilization fees shall be payable in arrears on the last day of March,
June, September and December of each year and on the date on which the
Commitments terminate, commencing on the first such date to occur after the date
hereof; provided that any utilization fees accruing after the date on which the
Commitments terminate shall be payable on demand. All utilization fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
20
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility and utilization fees, to the Lenders. Fees paid shall not
be refundable under any circumstances.
SECTION 2.10. Interest. (a) The Loans comprising each ABR Borrowing shall
bear interest at a rate per annum equal to the Alternate Base Rate plus the
Applicable Margin.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest at a
rate per annum equal to the Adjusted LIBO Rate for the Interest Period in effect
for such Borrowing plus the Applicable Margin.
(c) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by the Borrower hereunder is not paid
when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided above or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR Loans as provided above.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan; provided that (i) interest accrued pursuant
to paragraph (c) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Loan prior to the end of the Availability Period), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment, (iii) in the event of any conversion of any Eurodollar
Loan prior to the end of the current Interest Period therefor, accrued interest
on such Loan shall be payable on the effective date of such conversion and (iv)
all accrued interest shall be payable upon termination of the Commitments.
(e) All interest hereunder shall be computed on the basis of a year of 360
days, except that interest computed by reference to the Alternate Base Rate at
times when the Alternate Base Rate is based on the Prime Rate shall be computed
on the basis of a year of 365 days (or 366 days in a leap year), and in each
case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate, Adjusted
LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be presumptively correct.
SECTION 2.11. Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
presumptively correct) that adequate and reasonable means do not exist for
ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable, for
such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period will not adequately and fairly reflect the cost to such Lenders of
making or maintaining their Loans included in such Borrowing for such
Interest Period;
21
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders, which notice shall state the circumstances giving rise to such notice,
by telephone or telecopy as promptly as practicable thereafter and, until the
Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.12. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or to
reduce the amount of any sum received or receivable by such Lender hereunder
(whether of principal, interest or otherwise), then the Borrower will pay to
such Lender such additional amount or amounts as will compensate such Lender for
such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made hereunder, to a level below
that which such Lender or such Lender's holding company could have achieved but
for such Change in Law (taking into consideration such Lender's policies and the
policies of such Lender's holding company with respect to capital adequacy),
then from time to time the Borrower will pay to such Lender such additional
amount or amounts as will compensate such Lender or such Lender's holding
company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts, together
with a full explanation of the increased costs, the Change in Law giving rise
thereto and the calculation of such amount or amounts necessary to compensate
such Lender or its holding company, as the case may be, as specified in
paragraph (a) or (b) of this Section and further stating that such Lender is
requiring corresponding payments from other similarly situated borrowers
generally, shall be delivered to the Borrower and shall be presumptively
correct. The Borrower shall pay such Lender the amount so due on any such
certificate within 10 Business Days after receipt thereof and a full description
and calculation of such amount or amounts.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrower shall not be required to
22
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than six months prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the six-month period referred to above shall
be extended to include the period of retroactive effect thereof.
SECTION 2.13. Break Funding Payments. In the event of (a) the payment of
any principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Loan on the date specified in any notice delivered pursuant hereto
(regardless of whether such notice is permitted to be revocable under Section
2.08(b) and is revoked in accordance herewith) or (d) the assignment of any
Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.16, then,
in any such event, the Borrower shall compensate each Lender for the loss, cost
and expense attributable to such event; provided that any such event is not
attributable to the failure of any Lender to fund a Loan. In the case of a
Eurodollar Loan, the loss to any Lender attributable to any such event shall be
deemed to include an amount determined by such Lender to be equal to the excess,
if any, of (i) the amount of interest that such Lender would pay for a deposit
equal to the principal amount of such Loan for the period from the date of such
payment, conversion, failure or assignment to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, convert
or continue, the duration of the Interest Period that would have resulted from
such borrowing, conversion or continuation) if the interest rate payable on such
deposit were equal to the Adjusted LIBO Rate (in the case of a Eurodollar Loan)
for such Interest Period, over (ii) the amount of interest that such Lender
would earn on such principal amount for such period if such Lender were to
invest such principal amount for such period at the interest rate that would be
bid by such Lender (or an affiliate of such Lender) for dollar deposits from
other banks in the eurodollar market at the commencement of such period. A
certificate of any Lender setting forth any amount or amounts, together with a
full explanation of the losses, costs, and expenses incurred, the events giving
rise thereto and the calculation of such amount or amounts that such Lender is
entitled to receive pursuant to this Section, shall be delivered to the Borrower
and shall be presumptively correct. The Borrower shall pay such Lender the
amount so due on any such certificate within 10 Business Days after receipt
thereof.
SECTION 2.14. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (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) the Administrative Agent or Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
23
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each Lender
within 10 Business Days after written demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
paid by the Administrative Agent or such Lender, as the case may be, and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be presumptively correct. To the extent the
Administrative Agent or any Lender receives a refund or credit on account of any
Indemnified Tax or Other Tax reimbursed by the Borrower or as a result of
contesting any Indemnified Tax or Other Tax pursuant to this Section, the
Administrative Agent or such Lender, as the case may be, shall promptly pay over
the amount of such refund or credit to the Borrower.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate.
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by it hereunder
(whether of principal, interest, fees, or under Section 2.12, 2.13 or 2.14, or
otherwise) prior to 12:00 noon, New York City time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent, c/o The Loan and Agency Services
Group at the address set forth in Section 9.01, except that payments pursuant to
Sections 2.12, 2.13, 2.14 and 9.03 shall be made directly to the Persons
entitled thereto. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
24
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, interest and fees
then due hereunder, such funds shall be applied (i) first, to pay interest and
fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, to pay principal then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal then due to such
parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim
or otherwise, obtain payment in respect of any principal of or interest on any
of its Loans resulting in such Lender receiving payment of a greater proportion
of the aggregate amount of its Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the Loans
of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Loans; provided
that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be construed to
apply to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply). The Borrower consents to the foregoing and agrees, to the extent
it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.04(b) or 2.15(d), then the Administrative Agent may, in
its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.16. Mitigation Obligations; Replacement of Lenders. (a) If any
Lender requests compensation under Section 2.12, or if the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the
25
account of any Lender pursuant to Section 2.14, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.12 or 2.14, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.
(b) If any Lender requests compensation under Section 2.12, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.14,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.12 or payments required to be made pursuant to Section 2.14, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 2.17. New Lenders; Commitment Increases. (a) With the consent of
the Borrower and the Administrative Agent (which, in the case of the
Administrative Agent, shall not be unreasonably withheld), (i) one or more
additional banks or other financial institutions or other institutional investor
may become a party to this Agreement by executing a supplement hereto, in form
and substance satisfactory to such bank, financial institution or institutional
investor, the Borrower and the Administrative Agent, whereupon such bank,
financial institution or institutional investor (a "New Lender") shall become a
Lender for all purposes hereof and to the same extent as if originally a party
hereto and shall be bound by and entitled to the benefits of this Agreement, and
Schedule 2.01 hereto shall be deemed to be amended to add the name, address and
Commitment of such New Lender and (ii) any Lender may increase the amount of its
Commitment by executing a supplement hereto, in form and substance satisfactory
to such Lender, the Borrower and the Administrative Agent, whereupon such Lender
shall be bound by and entitled to the benefits of this Agreement with respect to
the full amount of its Commitment as so increased, and Schedule 2.01 hereto
shall be deemed to be amended to reflect such increase in the Commitment of such
Lender. In no event may the aggregate Commitments be increased above
$225,000,000 pursuant to any supplement described in this Section 2.17(a).
26
(b) If on the date upon which a bank or other financial institution or
institutional investor becomes a New Lender or upon which a Lender's Commitment
is changed pursuant to Section 2.17(a), any Loans are then outstanding, the
Administrative Agent will consult with the Borrower with the objective of
minimizing the costs to the Borrower, and may (A) require that the Borrower
prepay and reborrow any outstanding Loans in connection therewith if it
determines such action to be desirable to facilitate administration under this
Agreement in such amount and with such Interest Period such that, after giving
effect thereto, the quotient of (x) the Loan of such Lender of each Type and, in
the case of Eurodollar Loans, with each Interest Period and (y) such Lender's
Commitment is equal to the corresponding comparable quotient of each other
Lender and (B) with the consent of such Lender permit the Borrower to select an
initial Interest Period with respect to the initial Loans made by such Lender
having a duration other than one, two, three, or six months if the
Administrative Agent determines such action to be desirable to facilitate
administration of the Loans under this Agreement. Any Eurodollar Borrowing
borrowed pursuant to the preceding sentence shall bear interest at a rate equal
to the respective interest rates then applicable to the Eurodollar Loans of the
other Lenders or such other rate as may be agreed upon by the Borrower and such
Lender.
ARTICLE III
Representations and Warranties
Each of the Borrower and the Guarantor (as to itself) represents and
warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Borrower and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions are within
the powers of the Borrower and the Guarantor and have been duly authorized by
all necessary actions by the directors or trustees thereof. This Agreement has
been duly executed and delivered by each of the Borrower and the Guarantor, as
the case may be, and constitutes a legal, valid and binding obligation of the
Borrower and the Guarantor, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do
not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as have been obtained
or made or will have been obtained or made by the Closing Date and are in full
force and effect, (b) will not violate in any material respect any applicable
law or regulation, (c) will not violate the charter, by-laws or other
27
organizational documents of the Borrower or any of its Subsidiaries or any order
of any Governmental Authority, (d) will not violate or result in a default under
any material indenture, agreement or other instrument binding upon the Borrower
or any of its Subsidiaries or its assets, or give rise to a right thereunder to
require any payment to be made by the Borrower or any of its Subsidiaries, and
(e) will not result in the creation or imposition of any material Lien on any
asset of the Borrower or any of its Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Effect. (a) The
Borrower has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income, beneficial interests and cash flows (i) as of and for
the fiscal years ended 2001, 2002 and 2003, reported on by Deloitte & Touche
LLP, independent public accountants, and (ii) as of and for the fiscal quarters
and the portion of the fiscal year ended January 31, 2004, April 30, 2004 and
July 31, 2004, certified by its principal accounting officer. Such financial
statements present fairly, in all material respects, the financial position and
results of operations and cash flows of the Borrower and its consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP,
subject to year-end audit adjustments and the absence of footnotes in the case
of the statements referred to in clause (ii) above. The Borrower and its
Subsidiaries do not have any material Guarantees, contingent liabilities and
liabilities for taxes, or any long-term leases or unusual forward or long-term
commitments, including any interest rate or foreign currency swap or exchange
transaction or other obligation in respect of derivatives, that are not
reflected in the most recent financial statements referred to in this paragraph.
(b) Since October 31, 2003, there has been no event, development or
circumstance that has had or could reasonably be expected to have a Material
Adverse Effect.
SECTION 3.05. Properties. (a) Each of the Borrower and its Subsidiaries has
good title to, or valid leasehold interests in, all its real and personal
property material to its business, except for any defects in title that do not
interfere with its ability to conduct business as now conducted or to use such
properties for their intended purposes and none of such property is subject to
any Lien except as permitted by Section 6.03.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to use,
all material trademarks, tradenames, copyrights, patents and other intellectual
property necessary for the conduct of their respective businesses as now
conducted, subject to such limitations on the use thereof, or the rights to use
same, that, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) Except for the
Disclosed Matters, there are no actions, suits or proceedings, or, to the
knowledge of the Borrower, investigations, by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any of its Subsidiaries (i) as
to which there is a reasonable possibility of an adverse determination that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect or (ii) that relate
specifically to this Agreement or the Transactions.
(b) Except with respect to any matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, to the Borrower's knowledge neither the Borrower nor any of its
28
Subsidiaries (i) has failed to comply in any material respect with any
Environmental Law or to obtain, maintain or comply with any material permit,
license or other approval required under any Environmental Law, (ii) has become
subject to any material Environmental Liability, (iii) has received notice of
any claim with respect to any material Environmental Liability or (iv) knows of
any basis for any material Environmental Liability.
(c) Since the Effective Date, there has been no change in the status of the
Disclosed Matters that, individually or in the aggregate, has resulted in, or
materially increased the likelihood of, a Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the Borrower and
its Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments (including any material investment advisory or
management agreements) binding upon it or its property, except where the failure
to do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.08. Investment and Holding Company Status. (a) Neither the
Borrower nor any of its Subsidiaries is (i) an "investment company", or a
borrower "controlled" by an "investment company", each as defined in, or subject
to regulation under, the Investment Company Act of 1940, or (ii) a "holding
company" as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935. Except for net capital and other requirements
imposed on registered broker-dealers, neither the Borrower nor any of its
Subsidiaries is subject to any regulation under any Requirement of Law (other
than Regulation X of the Board) that limits its ability to incur Indebtedness.
(b) The Borrower and each Subsidiary of the Borrower which is engaged in
investment advisory or investment management activities is, and at all times
will be, duly registered as an investment adviser as and to the extent required
under the Investment Advisers Act of 1940, as amended; and each Subsidiary of
the Borrower which is engaged in broker-dealer business is, and at all times
will be, duly registered as a broker-dealer as and to the extent required under
the Securities Exchange Act of 1934, as amended, and, as and to the extent
required, is, and at all times will be, a member in good standing of the
National Association of Securities Dealers, Inc.
SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries has timely
filed or caused to be filed all Tax returns and reports required to have been
filed or has requested extensions thereof and has paid or caused to be paid all
Taxes required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which the Borrower or
such Subsidiary, as applicable, has set aside on its books adequate reserves or
(b) to the extent that the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
29
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $5,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $10,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the reports, financial statements, certificates
or other information furnished by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that,
with respect to projected financial information, the Borrower represents only
that such information was prepared in good faith based upon assumptions believed
to be reasonable at the time.
SECTION 3.12. No Default. As of the Effective Date, neither the Borrower
nor any of its Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect that could reasonably be expected to have
a Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
SECTION 3.13. Subsidiaries. Schedule 3.13 sets forth the name and
jurisdiction of incorporation or organization of each Subsidiary and, as to each
such Subsidiary, the percentage of each class of Capital Stock owned by the
Borrower. As of the Effective Date there are no outstanding subscriptions,
options, warrants, calls, rights or other agreements or commitments (other than
stock options or restricted stock granted to employees or directors and
directors' qualifying shares) of any nature relating to any Capital Stock of the
Borrower or any Subsidiary.
SECTION 3.14. Federal Regulations. No part of the proceeds of any Loans
will be used for "buying" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U as now and from time to
time hereafter in effect in any manner that violates the provisions of the
Regulations of the Board or for any other purpose that violates the provisions
of the Regulations of the Board. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in
Regulation U. No more than 25% of the consolidated assets of the Borrower and
its Subsidiaries (excluding treasury shares) consist of "margin stock" under
Regulation U as now and from time to time hereafter in effect.
30
SECTION 3.15. No Burdensome Restrictions. No Requirement of Law or
Contractual Obligation of the Borrower could reasonably be expected to have a
Material Adverse Effect.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans
hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Existing Credit Agreement shall have been terminated and the
Borrower shall have repaid all of the indebtedness, fees and other amounts owed
thereunder.
(b) The Administrative Agent (or its counsel) shall have received from each
party hereto either (i) a counterpart of this Agreement signed on behalf of such
party or (ii) written evidence satisfactory to the Administrative Agent (which
may include telecopy transmission of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement.
(c) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of a senior legal officer or special counsel of the Borrower and
the Guarantor, substantially in the form of Exhibit D, and covering such other
matters relating to the Borrower and the Guarantor, this Agreement or the
Transactions as the Administrative Agent shall reasonably request. The Borrower
and the Guarantor hereby request such counsel to deliver such opinion.
(d) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Borrower and
the Guarantor, the authorization of the Transactions and any other legal matters
relating to the Borrower and Guarantor, this Agreement or the Transactions, all
in form and substance satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated the
Effective Date and signed by the President, a Vice President or a Financial
Officer of the Borrower, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section 4.02.
(f) The Administrative Agent shall have received all fees and other amounts
due and payable on or prior to the Effective Date, including, to the extent
invoiced, reimbursement or payment of all reasonable out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder.
(g) All governmental and third party approvals necessary in connection with
the continuing operations of the Borrower and its Subsidiaries and the
transactions contemplated hereby shall have been obtained and be in full force
31
and effect, and all applicable waiting periods shall have expired without any
action being taken or threatened by any competent authority that would restrain,
prevent or otherwise impose adverse conditions on the financing contemplated
hereby.
(h) The Lenders shall have received (i) audited consolidated financial
statements of the Borrower for the 2001, 2002 and 2003 fiscal years and (ii)
unaudited interim consolidated financial statements of the Borrower for each
quarterly period ended subsequent to the date of the latest applicable financial
statements delivered pursuant to clause (i) of this paragraph as to which such
financial statements are available, and such financial statements shall not, in
the reasonable judgment of the Lenders, reflect any material adverse change in
the consolidated financial condition of the Borrower, as reflected in the
financial statements or projections contained in the Confidential Information
Memorandum.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date in writing, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 9.02) at or prior to 12:00 noon, New
York City time, on December 21, 2004 (and, in the event such conditions are not
so satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing (including, without limitation, its
initial Loan) is subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Borrower set forth in this
Agreement shall be true and correct in all material respects on and as of the
date of such Borrowing; except for any representation and warranty made as of an
earlier date, which representation and warranty shall be true in all material
respects on such earlier date.
(b) At the time of and immediately after giving effect to such Borrowing,
no Default shall have occurred and be continuing.
Each Borrowing and any increase of the aggregate Commitments pursuant to Section
2.17 shall be deemed to constitute a representation and warranty by the Borrower
on the date thereof as to the matters specified in paragraphs (a) and (b) of
this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal of
and interest on each Loan and all fees payable hereunder shall have been paid in
full, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The Borrower will
furnish to the Administrative Agent and each Lender:
32
(a) within 90 days after the end of each fiscal year of the Borrower, the
audited consolidated balance sheet of the Borrower and its Subsidiaries and the
related audited consolidated statements of income, of beneficial interests and
of cash flows for such year, setting forth in each case in comparative form the
figures for the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope of the
audit, by Deloitte & Touche L.L.P. or other independent certified public
accountants of nationally recognized standing (it being agreed that the
furnishing of the Borrower's Annual Report on Form 10-K for such year, as filed
with the Securities and Exchange Commission, will satisfy the Borrower's
obligation under this Section 5.01(a) with respect to such year except with
respect to the requirement that such financial statements be reported on without
a "going concern" or like qualification or exception, or qualification arising
out of the scope of the audit);
(b) within 45 days after the end of each of the first three fiscal quarters
of each fiscal year of the Borrower, the unaudited consolidated balance sheet of
the Borrower and its Subsidiaries, and the related unaudited consolidated
statements of income, beneficial interests and cash flows for such quarter and
the portion of the fiscal year through the end of such quarter, setting forth in
each case in comparative form the figures for the previous year, certified by an
officer of the Borrower as being fairly stated in all material respects (subject
to normal year-end audit adjustments) (it being agreed that the furnishing of
the Borrower's Quarterly Report on Form 10-Q for such quarter, as filed with the
Securities and Exchange Commission, will satisfy the Borrower's obligations
under this Section 5.01(b) with respect to such quarter);
(c) after the end of each fiscal quarter of the Borrower, (A) a schedule of
the Net Asset Value of the investment companies and accounts managed by the
Borrower and its Subsidiaries on the last day of such fiscal quarter and (B) a
schedule showing the calculation of the Aggregate Revenue Base as of the end of
such fiscal quarter of the Borrower, and an analysis of changes from the
preceding calendar quarter or in such other form as may be reasonably
satisfactory to the Administrative Agent;
(d) concurrently with any delivery of statements under clause (a) or (b)
above, a certificate of a Financial Officer of the Borrower (i) certifying as to
whether an Event of Default has occurred and, if an Event of Default has
occurred, specifying the details thereof and any action taken or proposed to be
taken with respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Section 6.01 and (iii) stating whether any change
in GAAP or in the application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the financial statements
accompanying such certificate; and (e) promptly following any request therefor,
such other information regarding the operations, business affairs and financial
condition of the Borrower or any Subsidiary, or compliance with the terms of
this Agreement, as the Administrative Agent or any Lender may reasonably
request.
(f) any financial statement or other document required to be delivered
pursuant to clause (a) or (b) of this Section 5.01 shall be deemed to have been
delivered on the date on which the Borrower posts such financial statement or
other document on its website at www.eatonvance.com; provided that the Borrower
33
shall give prompt notice of any such posting to the Administrative Agent (who
shall then give prompt notice of any such posting to the Lenders).
Notwithstanding the foregoing, the Borrower shall deliver paper copies of any
financial statement or other document referred to in this Section 5.01 to the
Administrative Agent if the Administrative Agent or any Lender requests the
Borrower to deliver such paper copies until written notice to cease delivering
such paper copies is given by the Administrative Agent or such Lender as the
case may be;
SECTION 5.02. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate
amount exceeding $5,000,000;
(d) any suspension or termination of the registration of any
Subsidiary as an investment adviser under the Investment Advisers Act of
1940, as amended, or any cancellation or expiration without renewal of any
material investment advisory agreement or similar contract to which any
Subsidiary is a party, in the case of any such cancellation or expiration
where the same could reasonably be determined to have a Material Adverse
Effect; and
(e) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
34
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will
cause each of its Subsidiaries to, (a) do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
6.04, and (b) comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION 5.04. Payment of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, pay its obligations, including Tax liabilities,
that, if not paid, could result in a Material Adverse Effect before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will, and
will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.
SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and
will cause each of its Subsidiaries to, keep proper books of record and account
in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its Financial
Officers and independent accountants, all at such reasonable times and as often
as reasonably requested.
SECTION 5.07. Compliance with Laws. The Borrower will, and will cause each
of its Subsidiaries to, comply with all laws, rules, regulations and orders of
any Governmental Authority applicable to it or its property and maintain all
registrations and memberships with any Governmental Authority, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used to
finance the working capital needs of the Borrower and its Subsidiaries and for
general corporate purposes, including but not limited (i) to repurchase a
portion of the Zero-Coupon Notes and (ii) to consummate Permitted Acquisitions.
No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations U and X.
35
SECTION 5.09. Environmental Laws. The Borrower will, and will cause each of
its Subsidiaries to, (a) comply in all material respects with all applicable
Environmental Laws, and obtain and comply in all material respects with and
maintain any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws, and (b) conduct and complete
all investigations, studies, sampling and testing, and all remedial, removal and
other actions required under Environmental Laws and promptly comply in all
material respects with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws, except in each case to the extent that
non-compliance therewith could not reasonably be expected to result in a
Material Adverse Effect.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full, the
Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Financial Condition Covenants.
(a) Consolidated Leverage Ratio. The Borrower shall not permit the
Consolidated Leverage Ratio as at the last day of any period of four
consecutive fiscal quarters of the Borrower ending with any fiscal quarter
to equal or exceed the ratio of 2.50:1.00.
(b) Consolidated Interest Coverage Ratio. The Borrower shall not
permit the Consolidated Interest Coverage Ratio as at the last day of any
period of four consecutive fiscal quarters of the Borrower ending with any
fiscal quarter to equal or be less than the ratio of 5.00:1.00.
SECTION 6.02. Indebtedness. The Borrower will not permit any Subsidiary to
create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness existing on the date hereof and set forth in Schedule
6.02;
(b) (i) Indebtedness of any Subsidiary to the Borrower or any other
Subsidiary and (ii) Indebtedness of the Borrower to any Subsidiary;
(c) (i) Guarantees by any Subsidiary of Indebtedness of the Borrower
or any other Subsidiary and (ii) Guarantees by the Borrower of any
Subsidiary Indebtedness;
(d) Indebtedness of the Borrower or any Subsidiary incurred to finance
the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on
any such assets prior to the acquisition thereof, and extensions, renewals
and replacements of any such Indebtedness that do not increase the
36
outstanding principal amount thereof; provided that (i) such Indebtedness
is incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement and (ii) the aggregate
principal amount of Indebtedness permitted by this clause (d) shall not
exceed $25,000,000 at any time outstanding;
(e) Indebtedness of any Person that becomes a Subsidiary after the
date hereof; provided that such Indebtedness exists at the time such Person
becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary;
(f) Indebtedness of any Subsidiary as an account party in respect of
trade letters of credit;
(g) Guarantees by the Borrower and any Subsidiary of operating and
capital leases permitted hereunder;
(h) Guarantees by the Borrower or any Subsidiary of indemnification
obligations and price adjustments in connection with Permitted Acquisitions
or acquisitions of Capital Stock or other assets otherwise permitted
hereunder; and
(i) other unsecured Indebtedness in an aggregate principal amount not
exceeding $50,000,000 at any time outstanding.
(j) Indebtedness of any Person that becomes a Subsidiary of the
Borrower in a Permitted Acquisition or Indebtedness otherwise assumed by
the Borrower or any of its Subsidiaries in connection with a Permitted
Acquisition in an aggregate principal amount for all such Indebtedness at
any time outstanding of up to $75,000,000;
(k) Indebtedness in the form of earn-outs and other contingent
payments in respect of acquisitions (both before or after any liability
associated therewith becomes fixed);
(l) Indebtedness assumed in connection with any refinancings,
refundings, renewals or extensions of any Indebtedness permitted by this
Section (other than pursuant to Section 6.02(a)) (without increasing, or
shortening the maturity of, the principal amount thereof);
SECTION 6.03. Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except (Liens described below, "Permitted Liens"):
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 6.03;
provided that (i) such Lien shall not apply to any other property or asset
of the Borrower or any Subsidiary and (ii) such Lien shall secure only
those obligations which it secures on the date hereof;
37
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (ii)
such Lien shall not apply to any other property or assets of the Borrower
or any Subsidiary and (iii) such Lien shall secure only those obligations
which it secures on the date of such acquisition or the date such Person
becomes a Subsidiary, as the case may be; and
(d) Liens on real or personal property, plant and equipment acquired,
leased, constructed or improved by the Borrower or any Subsidiary; provided
that (i) such security interests secure Indebtedness permitted by clause
(d) of Section 6.02, (ii) such security interests and the Indebtedness
secured thereby are incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement, (iii)
the Indebtedness secured thereby does not exceed 100% of the cost of
acquiring, constructing or improving such property, plant and equipment and
(iv) such security interests shall not apply to any other property or
assets of the Borrower or any Subsidiary.
SECTION 6.04. Fundamental Changes. (a) The Borrower will not, and will not
permit any Subsidiary to, merge into or consolidate with any other Person, or
permit any other Person to merge into or consolidate with it, or sell, transfer,
lease or otherwise dispose of (in one transaction or in a series of
transactions) all or substantially all of its assets, or all or substantially
all of the Capital Stock of any of its Subsidiaries (in each case, whether now
owned or hereafter acquired), or liquidate or dissolve, except that, if at the
time thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing (i) any other Person, including a Subsidiary, may
merge into the Borrower in a transaction in which the Borrower is the surviving
Person, (ii) any Subsidiary may merge into any other Subsidiary in a transaction
in which the surviving entity is a Subsidiary, (iii) any Subsidiary may sell,
transfer, lease or otherwise dispose of its assets to the Borrower or to another
Subsidiary, (iv) any Subsidiary may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and which could not reasonably be expected to have a
Material Adverse Effect, and (v) the Borrower may merge into or consolidate with
another Person in a transaction in which such other Person is the surviving
entity if such other Person is organized and validly existing under the laws of
the United States or any State thereof and by operation of law or otherwise
assumes all obligations of the Borrower hereunder and such assumption is
evidenced by an opinion of counsel to such other Person satisfactory in form and
substance to the Administrative Agent in its reasonable discretion; provided
that any such merger involving a Person that is not a wholly owned Subsidiary
immediately prior to such merger shall not be permitted unless also permitted by
Section 6.05. In the event of any merger or consolidation involving the
Guarantor, or in the event of any sale, transfer or other disposition by the
Guarantor of all or substantially all of its assets, in either case as permitted
above in this section 6.04(a), the surviving Person of such merger or
consolidation (if the surviving Person is not the Guarantor) or the transferee
of all or substantially all of the assets of the Guarantor, as the case may be,
shall expressly assume all of the obligations, duties and liabilities of the
Guarantor hereunder in a manner reasonably satisfactory to the Administrative
Agent; and, no such merger or consolidation, and no such sale, transfer or other
disposition, shall be permitted hereunder in the absence of such an assumption.
For the avoidance of doubt, any transfer by the Guarantor of the Capital Stock
38
owned by it in Eaton Vance Distributors, Inc. to the Borrower shall be permitted
hereunder and shall not, by itself, cause Eaton Vance Distributors, Inc. to be
required to assume the obligations, duties and liabilities of the Guarantor
hereunder.
(b) The Borrower will not, and will not permit any of its Subsidiaries to,
engage to any material extent in any business other than businesses of the type
conducted by the Borrower and its Subsidiaries on the date of execution of this
Agreement and businesses reasonably related thereto.
SECTION 6.05. Investments, Loans, Advances, Guarantees and Acquisitions;
Hedging Agreements. (a) The Borrower will not, and will not permit any of its
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a wholly owned Subsidiary prior to such merger) any
Capital Stock, evidences of Indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person, or
purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit, except:
(i) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(ii) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, an
investment-grade credit rating from S&P or from Moody's;
(iii) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than
$1,000,000,000;
(iv) investments in any fixed and variable income funds (which fund
may be an Eaton Vance Fund) in accordance with the ordinary course of
business of the Borrower and in a manner consistent with the past practice
of the Borrower;
(v) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (i) above and entered into
with a financial institution satisfying the criteria described in clause
(iii) above;
(vi) investments by the Borrower existing on the date hereof and made
after the Effective Date in the Capital Stock of its Subsidiaries and
investments by any Subsidiary in another Subsidiary;
39
(vii) loans or advances made by the Borrower to any Subsidiary and
made by any Subsidiary to the Borrower or any other Subsidiary;
(viii) Guarantees constituting Indebtedness permitted by Section 6.02;
(ix) Permitted Acquisitions;
(x) loans and advances to directors, officers and employees of the
Borrower and the Subsidiaries made in connection with the 1998 Executive
Loan Program, as revised July 9, 2003;
(xi) investments in Eaton Vance Funds in the ordinary course of
business of the Borrower and in a manner consistent with the past practice
of the Borrower, in an aggregate amount (based upon the book value on the
books of the Borrower and its Subsidiaries) of not more than $100,000,000;
and
(xii) other investments, loans, advances or guarantees in an aggregate
principal amount not exceeding $25,000,000 at any time outstanding;
(b) The Borrower will not, and will not permit any of its Subsidiaries to,
enter into any Hedging Agreement, other than Hedging Agreements entered into in
the ordinary course of business to hedge or mitigate risks to which the Borrower
or any Subsidiary is exposed in the conduct of its business or the management of
its liabilities.
SECTION 6.06. Restricted Payments. The Borrower will not, and will not
permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, if any Default or Event of
Default has occurred or is continuing or would result therefrom.
SECTION 6.07. Transactions with Affiliates. The Borrower will not, and will
not permit any of its Subsidiaries to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Borrower and its Subsidiaries not involving
any other Affiliate and (c) any transaction expressly permitted by Sections
6.02(b), 6.02(c), 6.04, 6.05(a)(vi), 6.05(a)(vii),6.05(a)(x), 6.05(a)(xii) and
6.06.
SECTION 6.08. Changes in Fiscal Periods. The Borrower will not permit the
fiscal year of the Borrower to end on a day other than the last Business Day
closest to October 31 or change the Borrower's method of determining fiscal
quarters.
SECTION 6.09. Limitation on Sale of Assets. The Borrower will not, and will
not permit any of its Subsidiaries to, dispose of any of its property or
business (including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary's Capital Stock to any Person,
except:
40
(a) dispositions permitted by Section 6.04;
(b) transactions permitted by Sections 6.05;
(c) the sale or issuance of any Subsidiary's Capital Stock to the
Borrower or any wholly-owned Subsidiary;
(d) any sale, transfer or lease or other disposition by the Borrower
or any Subsidiary in the ordinary course of business; and
(e) any sale, transfer or lease or other disposition by the Borrower
or any Subsidiary not in the ordinary course of business having a fair
market value not to exceed $25,000,000 in the aggregate for the Borrower or
any Subsidiary.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan when and
as the same shall become due and payable, whether at the due date thereof
or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement, when and as the same shall become
due and payable, and such failure shall continue unremedied for a period of
five Business Days;
(c) any representation or warranty made or, pursuant to Section 4.02
deemed made, by or on behalf of the Borrower or any Subsidiary in or in
connection with this Agreement or any amendment or modification hereof, or
in any report, certificate, financial statement or other document furnished
pursuant to or in connection with this Agreement or any amendment or
modification hereof, shall prove to have been materially incorrect when
made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to the
Borrower's existence) or the last sentence of 5.08 or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof from
the Administrative Agent (given at the request of any Lender) to the
Borrower;
41
(f) the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest) in respect of any Material Indebtedness,
when and as the same shall become due and payable;
(g) any event or condition occurs that results in the acceleration of
any Material Indebtedness prior to its scheduled maturity; provided that
this clause (g) shall not apply to secured Indebtedness that becomes due as
a result of the voluntary sale or transfer of the property or assets
securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower or any Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Subsidiary or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or
other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors
or (vi) take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in
writing or fail generally to pay its debts as they become due;
(k) one or more uninsured judgments for the payment of money in an
aggregate amount in excess of $25,000,000 shall be rendered against the
Borrower, any Subsidiary or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse
Effect;
(m) a Change in Control shall occur; or
(n) the obligations of the Guarantor under Article VIII shall cease to
be in full force and effect in any material respect or the Guarantor shall
so assert;
42
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Guarantee
SECTION 8.01. Guarantee. (a) The Guarantor hereby, jointly and severally,
unconditionally and irrevocably, guarantees to the Administrative Agent, for the
ratable benefit of the Lenders and their respective successors, indorsees,
transferees and assigns, the prompt and complete payment and performance by the
Borrower when due (whether at the stated maturity, by acceleration or otherwise)
of the Borrower Obligations.
(b) Anything herein to the contrary notwithstanding, the maximum liability
of the Guarantor hereunder shall in no event exceed the amount which can be
guaranteed by the Guarantor under applicable federal and state laws relating to
the insolvency of debtors (after giving effect to the right of subrogation and
contribution established in Section 8.02).
(c) The Guarantor agrees that the Borrower Obligations may at any time and
from time to time exceed the amount of the liability of the Guarantor hereunder
without impairing the guarantee contained in this Section 8 or affecting the
rights and remedies of the Administrative Agent or any Lender hereunder.
(d) The guarantee contained in this Section 8 shall remain in full force
and effect until all the Borrower Obligations and the obligations of the
Guarantor under the guarantee contained in this Section 8 shall have been
satisfied by payment in full and the Commitments shall have been terminated,
notwithstanding that from time to time during the term of this Agreement the
Borrower may be free from any Borrower Obligations.
(e) No payment made by the Borrower, the Guarantor, any other guarantor or
any other Person or received or collected by the Administrative Agent or any
Lender from the Borrower, the Guarantor, any other guarantor or any other Person
by virtue of any action or proceeding or any set-off or appropriation or
43
application at any time or from time to time in reduction of or in payment of
the Borrower Obligations shall be deemed to modify, reduce, release or otherwise
affect the liability of the Guarantor hereunder which shall, notwithstanding any
such payment (other than any payment made by the Guarantor in respect of the
Borrower Obligations or any payment received or collected from the Guarantor in
respect of the Borrower Obligations), remain liable for the Borrower Obligations
up to the maximum liability of the Guarantor hereunder until the Borrower
Obligations are paid in full and the Commitments are terminated. The provisions
of Section 2.14 shall apply to payments by the Guarantor under this Article VIII
(with appropriate changes therein to refer to the Guarantor and such payments as
necessary).
SECTION 8.02. No Subrogation. Notwithstanding any payment made by the
Guarantor hereunder or any set-off or application of funds of the Guarantor by
the Administrative Agent or any Lender, the Guarantor shall not be entitled to
be subrogated to any of the rights of the Administrative Agent or any Lender
against the Borrower or any collateral security or guarantee or right of offset
held by the Administrative Agent or any Lender for the payment of the Borrower
Obligations, nor shall the Guarantor seek or be entitled to seek any
contribution or reimbursement from the Borrower in respect of payments made by
the Guarantor hereunder, until all amounts owing to the Administrative Agent and
the Lenders by the Borrower on account of the Borrower Obligations are paid in
full and the Commitments are terminated. If any amount shall be paid to the
Guarantor on account of such subrogation rights at any time when all of the
Borrower Obligations shall not have been paid in full, such amount shall be held
by the Guarantor in trust for the Administrative Agent and the Lenders,
segregated from other funds of the Guarantor, and shall, forthwith upon receipt
by the Guarantor, be turned over to the Administrative Agent in the exact form
received by the Guarantor (duly indorsed by the Guarantor to the Administrative
Agent, if required), to be applied against the Borrower Obligations, whether
matured or unmatured, in such order as the Administrative Agent may determine.
SECTION 8.03. Amendments, etc. with Respect to The Borrower Obligations.
The Guarantor shall remain obligated hereunder notwithstanding that, any of the
following may occur, without notice to or further assent by the Guarantor, (i)
any demand for payment of any of the Borrower Obligations made by the
Administrative Agent or any Lender may be rescinded by the Administrative Agent
or such Lender and any of the Borrower Obligations continued, (ii) the Borrower
Obligations, or the liability of any other Person upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
the Administrative Agent or any Lender, (iii) the Credit Agreement and the other
Loan Documents and any other documents executed and delivered in connection
therewith may be amended, modified, supplemented or terminated, in whole or in
part, as the Administrative Agent (or the Required Lenders or all Lenders, as
the case may be) may deem advisable from time to time, or (iv) any collateral
security, guarantee or right of offset at any time held by the Administrative
Agent or any Lender for the payment of the Borrower Obligations may be sold,
exchanged, waived, surrendered or released. Neither the Administrative Agent nor
any Lender shall have any obligation to protect, secure, perfect or insure any
Lien at any time held by it as security for the Borrower Obligations or for the
guarantee contained in this Section 8 or any property subject thereto.
44
SECTION 8.04. Guarantee Absolute and Unconditional. The Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of the
Borrower Obligations and notice of or proof of reliance by the Administrative
Agent or any Lender upon the guarantee contained in this Section 8 or acceptance
of the guarantee contained in this Section 8; the Borrower Obligations, and any
of them, shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon the
guarantee contained in this Section 8; and all dealings between the Borrower and
the Guarantor, on the one hand, and the Administrative Agent and the Lenders, on
the other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon the guarantee contained in this Section 8. The
Guarantor waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon the Borrower with respect to the Borrower
Obligations. The Guarantor understands and agrees that the guarantee contained
in this Section 8 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the Borrower or any other Person against the
Administrative Agent or any Lender, or (b) any other circumstance whatsoever
(with or without notice to or knowledge of the Borrower or the Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Borrower for the Borrower Obligations, or of the Guarantor
under the guarantee contained in this Section 8, in bankruptcy or in any other
instance. When making any demand hereunder or otherwise pursuing its rights and
remedies hereunder against the Guarantor, the Administrative Agent or any Lender
may, but shall be under no obligation to, make a similar demand on or otherwise
pursue such rights and remedies as it may have against the Borrower or any other
Person or against any collateral security or guarantee for the Borrower
Obligations or any right of offset with respect thereto, and any failure by the
Administrative Agent or any Lender to make any such demand, to pursue such other
rights or remedies or to collect any payments from the Borrower or any other
Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of the Borrower or any other
Person or any such collateral security, guarantee or right of offset, shall not
relieve the Guarantor of any obligation or liability hereunder, and shall not
impair or affect the rights and remedies, whether express, implied or available
as a matter of law, of the Administrative Agent or any Lender against the
Guarantor. For the purposes hereof "demand" shall include the commencement and
continuance of any legal proceedings.
SECTION 8.05. Reinstatement. The guarantee contained in this Section 8
shall continue to be effective, or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any of the Borrower Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent
or any Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or the Guarantor or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Borrower or the Guarantor or any substantial part of its
property, or otherwise, all as though such payments had not been made.
SECTION 8.06. Payments. The Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without set-off or
counterclaim in Dollars at the office of the Administrative Agent.
45
ARTICLE IX
The Administrative Agent
Except as provided below, each of the Lenders hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
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 other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders, and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Subsidiaries that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders or
in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made by any other Person in or in connection with this Agreement,
(ii) the contents of any certificate, report or other document delivered by any
other Person hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness (other than its
own due execution) or genuineness of this Agreement or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing reasonably believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
46
counsel (who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
The Administrative Agent may perform any and all its duties and exercise
its rights and powers through Related Parties of the Administrative Agent. The
exculpatory provisions of the preceding paragraphs shall apply to the Related
Parties of the Administrative Agent, and shall apply to their activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New York,
or an Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender 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 upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.
47
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at Eaton Vance Corp., The Eaton Vance
Building, 225 State Street, Boston, MA, 02109, Attention: Mr. William M.
Steul, Chief Financial Officer (Telecopy No. (617) 426-2487); with a copy
to the Chief Legal Officer of the Borrower and to Nixon Peabody LLP at 100
Summer Street, Boston, MA 02110, Attention: Craig D. Mills.
(b) if to the Administrative Agent, to JPMorgan Chase Bank, N.A. c/o
The Loan and Agency Services Group, 1111 Fannin Street, 10th floor,
Houston, TX 77002, Attention of [ ] (Telecopy No. [ ]), with a copy to
JPMorgan Chase Bank, N.A. 270 Park Avenue, New York, New York 10017,
Attention of Marybeth Mullen (Telecopy No. (212) 270-5100); and
(c) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no
48
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.15(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, (v)
release the Guarantor from its Guarantee contained herein, without the written
consent of each Lender, or (vi) change any of the provisions of this Section or
the definition of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders required to waive, amend or modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender; provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent hereunder without the prior written consent of the
Administrative Agent.
SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall
pay (i) all reasonable, documented out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates in amounts previously agreed to in
writing and the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions hereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated) and (ii) all out-of-pocket expenses incurred by the Administrative
Agent or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made,
including in connection with any workout, restructuring or negotiations in
respect thereof.
(b) The Borrower shall indemnify the Administrative Agent and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities, costs and related expenses, including
the reasonable fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or the use of the proceeds therefrom, (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in
any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that (a)
49
such losses, claims, damages, liabilities, costs or related expenses are
determined by a court of competent jurisdiction by a final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (b) any such losses, damages, liabilities, costs, or related
expenses solely arise out of any successful claim made by the Borrower or any
Subsidiary against any such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required to be
paid by it to the Administrative Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than 30
days after written demand therefor accompanied by documentation reasonably
describing the basis for such amounts.
SECTION 10.04. Successors and Assigns. (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 permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided that (i) except in
the case of an assignment to a Lender or an Affiliate of a Lender, each of the
Borrower and the Administrative Agent must give their prior written consent to
such assignment (which consent shall not be unreasonably withheld), (ii) except
in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender's Commitment,
and the Loans at the time owing to it or in the case of an assignment to a
Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender,
the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) shall not be less than $5,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement with respect to
50
the Loan or the Commitment assigned, (iv) the parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500 (the obligation to pay
such fee to be shared equally by the assignor and assignee), and (v) the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire; provided further that any consent of the
Borrower otherwise required under this paragraph shall not be required if an
Event of Default under clause (h) or (i) of Article VII has occurred and is
continuing. Upon acceptance and recording pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.12,
2.13, 2.14 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary.
(d) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
51
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (f) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.12 or 2.14 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.14 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.14(e) as
though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including without limitation (i) any such pledge or assignment to a
Federal Reserve Bank, and (ii) in the case of any Lender that is a Fund, any
pledge or assignment of all or any portion of such Lender's rights under this
Agreement to any holders of obligations owed, or securities issued, by such
Lender as security for such obligations or securities, or to any trustee for, or
any other representative of such holders and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such assignee for such Lender as a party
hereto.
SECTION 10.05. Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.12, 2.13, 2.14 and 9.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
52
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other Indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower against any of and all the obligations of
the Borrower now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the law
of the State of New York.
(b) Each of the Borrower and the Guarantor hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its properties in
the courts of any jurisdiction.
(c) Each of the Borrower and the Guarantor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
53
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 9.01. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. (a) The Borrower acknowledges that from
time to time financial advisory, investment banking and other services may be
offered or provided to the Borrower or one or more of its Subsidiaries (in
connection with this Agreement or otherwise) by any Lender or by one or more
subsidiaries or affiliates of such Lender and the Borrower hereby authorizes
each Lender, subject to applicable federal or state securities laws, to share
any information delivered to such Lender by the Borrower and its Subsidiaries
pursuant to this Agreement, or in connection with the decision of such Lender to
enter into this Agreement, to any such subsidiary or affiliate. Such
authorization shall survive the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof.
(b) Notwithstanding anything to the contrary herein, neither the Lenders
nor the Administrative Agent may disclose to any Person any information that
constitutes material non-public information regarding the Borrower or its
securities for purposes of Regulation FD of the Securities and Exchange
Commission or any other federal or state securities laws (it being acknowledged
and agreed that the provisions of this Section 10.12 with respect to such
information are reasonably necessary to comply with Regulation FD and/or such
other federal and state securities laws) (such information referred to
collectively herein as the "Borrower Information"), except that the
Administrative Agent and each of the Lenders may disclose Borrower Information
(i) to its and its affiliates' officers, employees, counsel and agents (it being
understood that the Persons to whom such disclosure is made will be informed of
54
the confidential nature of such Borrower Information and instructed to keep such
Borrower Information confidential), (ii) to the extent requested by any
regulatory authority or the National Association of Insurance Commissioners,
(iii) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (iv) to any other party to this Agreement,
(v) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder or thereunder, (vi) subject to an agreement containing provisions
substantially the same as those of this paragraph, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or to any direct or indirect
contractual counterparties or prospective contractual counterparties in swap
agreements or such contractual counterparties' professional advisors, (vi) to
the extent such Borrower Information (A) is or becomes generally available to
the public on a non-confidential basis through no fault or action by any of the
Lenders or the Administrative Agent, or (B) is or becomes available to such
Lenders or the Administrative Agent on a nonconfidential basis from a source
other than the Borrower and (vii) with the consent of the Borrower.
SECTION 10.13. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such
Loan under applicable law (collectively the "Charges"), shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
55
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.
EATON VANCE CORP.
By: /s/ William M. Steul
--------------------------------
Name: William M. Steul
Title: Treasurer
EATON VANCE MANAGEMENT
By: /s/ William M. Steul
--------------------------------
Name: William M. Steul
Title: Treasurer
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent,
By: /s/ Marybeth Mullen
--------------------------------
Name: Marybeth Mullen
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Marcio Chapina
--------------------------------
Name: Marcio Chapina
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Kirk Seagers
--------------------------------
Name: Kirk Seagers
Title: Vice President and Director
CREDIT SUISSE FIRST BOSTON, ACTING
THROUGH ITS CAYMAN ISLANDS BRANCH
By: /s/ Jay Chall
--------------------------------
Name: Jay Chall
Title: Director
By: /s/ Rianka Mohan
--------------------------------
Name: Rianka Mohan
Title: Associate
CITIBANK N.A.
By: /s/ Matthew Nicholls
--------------------------------
Name: Matthew Nicholls
Title: Director
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ Kimberly Shaffer
--------------------------------
Name: Kimberly Shaffer
Title: Director
UBS LOAN FINANCE LLC
By: /s/ Wilfred V. Szint
--------------------------------
Name: Wilfred V. Szint
Title: Director
Bank Products
Services, US
By: /s/ Joselin Fernandes
--------------------------------
Name: Joselin Fernandes
Title: Associate Director
Bank Products
Services, US
Annex A
PRICING GRID
Level 1 Level 2 Level 3 Level 4
------- ------- ------- -------
----------------------------- ------------------ ----------------------------- ------------------ -------------------
Rating: >= BBB+ >=BBB+ and >=Baa2 BBB < BBB
AND OR AND OR
>=Baa1 >=Baa1 and >= BBB Baa2 < Baa2
----------------------------- ------------------ ----------------------------- ------------------ -------------------
ABR Loans' 0% 0% 0% 0%
Applicable Margin
----------------------------- ------------------ ----------------------------- ------------------ -------------------
Eurodollar Loans' 0.320% 0.400% 0.500% 0.700%
Applicable Margin
----------------------------- ------------------ ----------------------------- ------------------ -------------------
Facility Fee Rate 0.080% 0.100% 0.125% 0.175%
----------------------------- ------------------ ----------------------------- ------------------ -------------------
Applicable Utilization Fee 0.125% 0.125% 0.125% 0.125%
Rate1
----------------------------- ------------------ ----------------------------- ------------------ -------------------
For purposes of determining the Applicable Margins or the Facility Fee Rates,
(i) as long as the Guarantor is serving as a guarantor, the Applicable Margins
and Facility Fees shall be based on the ratings of the Borrower and Guarantor,
and the one with the higher ratings shall be applicable, (ii) in the event that
more than one Level is applicable due to different ratings by Moody's and S&P,
then the higher of such ratings shall determine the Applicable Level, (iii) if
Moody's or S&P shall not have in effect a rating because such rating agency
shall no longer be in the business of rating corporate debt obligations, then
such rating agency will be deemed to have established a rating one rating level
lower than the rating of either Moody's or S&P, as the case may be, that remains
in effect, (iv) in the event that the ratings are such that no Level shall be
applicable (other than for the reason set forth in (iii) above), then Level 4
shall be deemed applicable, (v) the Applicable Margins and the Facility Fee
Rates shall be subject to adjustment (upwards or downwards, as appropriate),
effective as of the date on which S&P or Moody's announces a rating change which
results in a change in the Applicable Margins and the Facility Fee Rates.
-----------------------------------
1 Applicable Utilization Fee Rate for each level is only applicable if the
aggregate outstanding principal amount of all Loans under the Facility exceeds
50% of the total commitments under the Facility.
SCHEDULE 2.01
COMMITMENTS
======================================================================================== =============================
Lender Commitment
---------------------------------------------------------------------------------------- -----------------------------
$
---------------------------------------------------------------------------------------- -----------------------------
$
---------------------------------------------------------------------------------------- -----------------------------
$
---------------------------------------------------------------------------------------- -----------------------------
$
---------------------------------------------------------------------------------------- -----------------------------
$
---------------------------------------------------------------------------------------- -----------------------------
$
---------------------------------------------------------------------------------------- -----------------------------
Total $180,000,000
======================================================================================== =============================
SCHEDULE 3.06
DISCLOSED MATTERS
Existing Litigation
1. On June 9, 2004, a consolidated amended complaint ("Complaint") was filed in
the United States District Court for the Southern District of New York,
captioned In Re Eaton Vance Mutual Funds Fee Litigation, against Eaton Vance
Corp. (the "Company"), Eaton Vance Management and Boston Management and Research
(the Company's investment management subsidiaries), Lloyd George Investment
Management (Bermuda) Limited, and Orbimed Advisors LLC (collectively, the
"Investment Advisers"), Eaton Vance, Inc., Eaton Vance Distributors, Inc., Lloyd
George Investment Management (B.V.I.) Limited, nine current or past trustees of
81 Eaton Vance mutual funds named as nominal defendants (the "Funds"), and
twelve current or past officers and portfolio managers of the Funds. The
plaintiffs named in the Complaint are six alleged shareholders of three of the
81 Funds. The Complaint, framed as a class action and as a derivative suit on
behalf of the Funds, consolidates and amends six substantially identical
complaints previously brought against most of the named defendants by the six
plaintiffs. The Complaint alleges that the defendants improperly used assets of
the Funds to influence brokers to encourage sales of Fund shares and failed to
disclose this use to investors. Based on these allegations, the Complaint
charges that the defendants violated the Investment Company Act of 1940 and New
York law and breached their fiduciary duties to the Funds and their
shareholders, and that the Investment Advisers violated the Investment Advisers
Act of 1940. The Complaint seeks unspecified damages and rescission by the Funds
of their contracts with the Investment Advisers. The Company and its
Subsidiaries believe that the Complaint is without merit and are vigorously
contesting the lawsuit.
SCHEDULE 3.13
SUBSIDIARIES
PERCENTAGE
JURISDICTION OF OWNER OF EQUITY OWNERSHIP INTEREST/
SUBSIDIARIES ORGANIZATION INTERESTS IN SUBSIDIARY CLASS OF INTERESTS
Eaton Vance Acquisitions Delaware Eaton Vance Corp. 99.9%/Partnership Interests
(Partnership) Eaton Vance, Inc. 0.10%/ Partnership Interests
Eaton Vance Management Massachusetts Eaton Vance Corp. 100%/Beneficial Interests
(Business Trust)
Eaton Vance, Inc. Massachusetts Eaton Vance Corp. 100%/Common Stock
(Corporation)
Eaton Vance Distributors, Inc. Massachusetts Eaton Vance Management 100%/Common Stock
(Corporation)
Boston Management and Research (Business Massachusetts Eaton Vance Management 99.9%/Beneficial Interests
Trust) Eaton Vance Investment 0.10%/Beneficial Interests
Counsel
Eaton Vance Investment Counsel Massachusetts Eaton Vance Management/ 100%/Beneficial Interests
(Business Trust)
Atlanta Capital Management Delaware Eaton Vance Acquisitions 70%/Membership Interests
Company, LLC
(Limited Liability Company)
Fox Asset Management LLC Delaware Eaton Vance Acquisitions 80%/Membership Interests
(Limited Liability Company)
Parametric Portfolio Associates LLC Delaware Eaton Vance Acquisitions 80%/Membership Interests
(Limited Liability Company)
Eaton Vance Trust Company Maine Eaton Vance Investment 100%/Common Stock
Counsel
FOREIGN SUBSIDIARIES
Eaton Vance Advisor (Ireland) Limited Ireland Eaton Vance Management 100%/Equity Interests
(Limited Company)
Eaton Vance Management (International) United Kingdom Eaton Vance Management 100%/Equity Interests
Limited
(Private Limited Company)
SCHEDULE 6.02
EXISTING INDEBTEDNESS
1. $110,945,000 aggregate principal amount at maturity zero-coupon
exchangeable senior Liquid Yield Option Notes due 2031 issued pursuant to
that certain Purchase Agreement dated August 7, 2001, as amended or
modified from time to time.
SCHEDULE 6.03
EXISTING LIENS
None.
EXHIBIT A
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of December 21, 2004
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Eaton Vance Corp. (the "Borrower"), the Lenders party thereto
and JP Morgan Chase Bank, N.A., as administrative agent for the Lenders (in such
capacity, the "Administrative Agent"). Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor") and the
Assignee identified on Schedule l hereto (the "Assignee") agree as follows:
i. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the
Assignor, as of the Effective Date (as defined below), the interest
described in Schedule 1 hereto (the "Assigned Interest") in and to the
Assignor's rights and obligations under the Credit Agreement with
respect to those credit facilities contained in the Credit Agreement
as are set forth on Schedule 1 hereto (individually, an "Assigned
Facility"; collectively, the "Assigned Facilities"), in a principal
amount for each Assigned Facility as set forth on Schedule 1 hereto.
ii. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or
with respect to the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto, other than that the
Assignor has not created any adverse claim upon the interest being
assigned by it hereunder and that such interest is free and clear of
any such adverse claim; (b) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of
the Borrower, any of its Subsidiaries or any other obligor or the
performance or observance by the Borrower, any of its Subsidiaries or
any other obligor of any of their respective obligations under the
Credit Agreement or any other instrument or document furnished
pursuant hereto or thereto; and (c) attaches any promissory notes held
by it evidencing the Assigned Facilities and (i) requests that the
Administrative Agent, upon request by the Assignee, exchange the
attached promissory notes for a new promissory note or notes payable
to the Assignee and (ii) if the Assignor has retained any interest in
the Assigned Facility, requests that the Administrative Agent exchange
the attached promissory notes for a new promissory note or notes
A-1
payable to the Assignor, in each case in amounts which reflect the
assignment being made hereby (and after giving effect to any other
assignments which have become effective on the Effective Date).
iii. The Assignee (a) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (b) confirms that it has
received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to subsection 3.04 thereof and
such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this
Assignment and Acceptance; (c) agrees that it will, independently and
without reliance upon the Assignor, the Administrative Agent or any
other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement or
any other instrument or document furnished pursuant hereto or thereto;
(d) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement or any other instrument or
document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers
as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with
its terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender including, if
it is organized under the laws of a jurisdiction outside the United
States, its obligation pursuant to subsection 2.14(e) of the Credit
Agreement.
iv. The effective date of this Assignment and Acceptance shall be the
Effective Date of Assignment described in Schedule 1 hereto (the
"Effective Date"). Following the execution of this Assignment and
Acceptance, it will be delivered to the Administrative Agent for
acceptance by it and recording by the Administrative Agent pursuant to
the Credit Agreement, effective as of the Effective Date (which shall
not, unless otherwise agreed to by the Administrative Agent, be
earlier than five Business Days after the date of such acceptance and
recording by the Administrative Agent).
v. Upon such acceptance and recording, from and after the Effective Date,
the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and
other amounts) to the Assignor for amounts which have accrued to the
Effective Date and to the Assignee for amounts which have accrued
subsequent to the Effective Date. The Assignor and the Assignee shall
make all appropriate adjustments in payments by the Administrative
Agent for periods prior to the Effective Date or with respect to the
making of this assignment directly between themselves.
A-2
vi. From and after the Effective Date, (a) the Assignee shall be a party
to the Credit Agreement and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of a Lender thereunder
and shall be bound by the provisions thereof and (b) the Assignor
shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the
Credit Agreement.
vii. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
A-3
Schedule 1
to Assignment and Acceptance
Name of Assignor: ________________________
Name of Assignee: ________________________
Effective Date of Assignment: ________________________
Credit Principal Commitment Percentage
Facility Assigned Amount Assigned Assigned1
----------------- --------------- ---------------------
$ --------- --.----------%
[Name of Assignee] [Name of Assignor]
By: _______________________ By: _______________________
Title: Title
Accepted: Consented To:
JPMORGAN CHASE BANK, N.A., EATON VANCE CORP.2
as Administrative Agent
By: _______________________ By: _______________________
Title: Title:
--------------------------------
1 Calculate the Commitment Percentage that is assigned to at least 15 decimal
places and show as a percentage of the aggregate commitments of all Lenders
2 The Borrower's consent may not be required pursuant to subsection 9.04 of
the Credit Agreement.
EXHIBIT B
FORM OF
BORROWING REQUEST
JPMorgan Chase Bank, N.A.,
as Administrative Agent
Loan and Agency Services
One Chase Manhattan Plaza
New York, New York 10081
Attention: Christine Grippo
[Date]
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of December 21, 2004 (as
amended and in effect on the date hereof, the "Credit Agreement"), among the
undersigned, as Borrower, the Lenders named therein, and JPMorgan Chase Bank,
N.A., as Administrative Agent. Terms defined in the Credit Agreement are used
herein with the same meanings. This notice constitutes a Borrowing Request and
the Borrower hereby requests a Borrowing under the Credit Agreement, and in that
connection the Borrower specifies the following information with respect to the
Borrowing requested hereby:
(A) Aggregate amount of requested Borrowing:1___________
(B) Date of the requested Borrowing:2
(C) Type of Borrowing: 3
--------------------------------------
1 Amount inserted to be no greater than the aggregate Commitments of the
Lenders less the aggregate Unused Commitments of the Lenders as of such
date. Such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. Borrowings of more
than one Type may be outstanding at the same time; provided that there
shall not at any time be more than a total of ten (10) Eurodollar
Borrowings outstanding at any time.
2 Must be a Business Date.
3 Please specify either Eurodollar Borrowing or ABR Borrowing. If this part
is left blank, the request will be treated as a request for an ABR
Borrowing.
(D) Interest Period:4
(E) Location and number of Borrower's account at Administrative Agent to
which proceeds of Borrowing are to be disbursed:
(F) The Borrower hereby represents and warrants to the Administrative
Agent and the Lenders that the proceeds of the requested Borrowing
will be used in a manner consistent with the terms of the Credit
Agreement.
The Borrower hereby represents and warrants that the conditions specified
in paragraphs (a) and (b) of Section 4.02 of the Credit Agreement have been
satisfied in all respects.
Very truly yours,
By:___________________________________
Name:
Title:
---------------------------------------
4 Only applicable for Eurodollar Borrowings. Must be a period contemplated by
the definition of the term "Interest Period". If no Interest Period is
specified, then the Borrower will be deemed to have selected an Interest
Period of one month.
EXHIBIT C
FORM OF
INTEREST ELECTION REQUEST
JPMorgan Chase Bank, N.A.,
as Administrative Agent
Loan and Agency Services
One Chase Manhattan Plaza
New York, New York 10081
Attention: Christine Grippo
[Date]
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of December 21, 2004 (as
amended and in effect on the date hereof, the "Credit Agreement"), among the
undersigned, as Borrower, the Lenders named therein, and JPMorgan Chase Bank,
N.A., as Administrative Agent. Terms defined in the Credit Agreement are used
herein with the same meanings. This notice constitutes an Interest Election
Request under the Credit Agreement, and the Borrower hereby requests that the
Borrowings referred to herein be of the Type and, if applicable, Interest Period
set forth herein, and in that connection the Borrower specifies the following
information with respect to the Borrowing designated herein:
(A) Borrowing to which this Interest Election Request applies: 1
(B) Effective date of this Interest Election Request:2
(C) Type of Borrowing after the effective date of this Interest Election
Request: 3
----------------------------------------
1 If different options are being elected with respect to different portions
thereof, please specify the portions thereof to be allocated to each
resulting Borrowing.
2 Must be a Business Date.
3 Please specify either Eurodollar Borrowing or ABR Borrowing. If this part
is left blank, the request will be treated as a request for an ABR
Borrowing. If different options are being elected with respect to different
portions of a Borrowing, please specify the Type of Borrowing for each
resulting Borrowing.
(D) Interest Period:4
The Borrower hereby represents and warrants that the conditions specified
in paragraphs (a) and (b) of Section 4.02 of the Credit Agreement have been
satisfied in all respects.
Very truly yours,
By:___________________________________
Name:
Title:
-----------------------------------
4 Only applicable for Eurodollar Borrowings. Must be a period contemplated by
the definition of the term "Interest Period". If no Interest Period is
specified, then the Borrower will be deemed to have selected an Interest
Period of one month. If different options are being elected with respect to
different portions of a Borrowing, please specify the Interest Period for
each resulting Borrowing.
EXHIBIT D
FORM OF
OPINION OF COUNSEL OF THE BORROWER