Exhibit 10(a)
CREDIT AGREEMENT
Arranged by
FIRST CHICAGO CAPITAL MARKETS, INC.
Dated as of August 11, 1998
among
KANSAS CITY POWER & LIGHT COMPANY,
CERTAIN LENDERS,
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
and
NATIONSBANK, N.A.,
as Documentation Agent
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS 1
ARTICLE II
THE CREDITS 10
2.1. Commitment 10
2.2. Required Payments; Termination 10
2.3. Ratable Loans 10
2.4. Types of Advances 10
2.5. Commitment Fee; Reductions in Aggregate Commitment 10
2.6. Minimum Amount of Each Advance 11
2.7. Optional Principal Payments 11
2.8. Method of Selecting Types and Interest Periods
for New Advances 11
2.9. Conversion and Continuation of Outstanding Advances 11
2.10. Changes in Interest Rate, etc. 12
2.11. Rates Applicable After Default 12
2.12. Method of Payment 13
2.13. Noteless Agreement; Evidence of Indebtedness 13
2.14. Telephonic Notices 14
2.15. Interest Payment Dates; Interest and Fee Basis 14
2.16. Notification of Advances, Interest Rates, Prepayments
and Commitment Reductions 14
2.17. Lending Installations 15
2.18. Non-Receipt of Funds by the Administrative Agent 15
2.19. Extension of Facility Termination Date 15
ARTICLE III
YIELD PROTECTION; TAXES 16
3.1. Yield Protection 16
3.2. Changes in Capital Adequacy Regulations 16
3.3. Availability of Types of Advances 17
3.4. Funding Indemnification 17
3.5. Taxes 17
3.6. Lender Statements; Survival of Indemnity 19
ARTICLE IV
CONDITIONS PRECEDENT 19
4.1. Initial Advance 19
4.2. Each Advance 20
Page i
ARTICLE V
REPRESENTATIONS AND WARRANTIES 21
5.1. Existence and Standing 21
5.2. Authorization and Validity 21
5.3. No Conflict; Government Consent 22
5.4. Financial Statements 22
5.5. Material Adverse Change 22
5.6. Taxes 22
5.7. Litigation and Contingent Obligations 22
5.8. ERISA 23
5.9. Accuracy of Information 23
5.10. Regulation U 23
5.11. Material Agreements 23
5.12. Compliance With Laws 23
5.13. Ownership of Properties 23
5.14. Plan Assets; Prohibited Transactions 24
5.15. Environmental Matters 24
5.16. Investment Company Act 24
5.17. Public Utility Holding Company Act 24
5.18. Pari Passu Indebtedness 24
5.19. Year 2000 Problem 24
ARTICLE VI
COVENANTS 24
6.1. Financial Reporting 25
6.2. Use of Proceeds 26
6.3. Notice of Default 26
6.4. Conduct of Business 26
6.5. Taxes 26
6.6. Insurance 26
6.7. Compliance with Laws 27
6.8. Maintenance of Properties 27
6.9. Inspection 27
6.10. Consolidations, Mergers and Sale of Assets 27
6.11. Liens 28
6.12. Affiliates 29
ARTICLE VII
DEFAULTS 30
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES 31
8.1. Acceleration 31
8.2. Amendments 32
Page ii
8.3. Preservation of Rights 32
ARTICLE IX
GENERAL PROVISIONS 33
9.1. Survival of Representations 33
9.2. Governmental Regulation 33
9.3. Headings 33
9.4. Entire Agreement 33
9.5. Several Obligations; Benefits of this Agreement 33
9.6. Expenses; Indemnification 33
9.7. Numbers of Documents 34
9.8. Accounting 34
9.9. Severability of Provisions 34
9.10. Nonliability of Lenders 34
9.11. Confidentiality 35
9.12. Nonreliance 35
ARTICLE X
THE AGENTS 35
10.1. Appointment; Nature of Relationship 35
10.2. Powers 36
10.3. General Immunity 36
10.4. No Responsibility for Loans, Recitals, etc. 36
10.5. Action on Instructions of Lenders 37
10.6. Employment of Administrative Agents and Counsel 37
10.7. Reliance on Documents; Counsel 37
10.8. Administrative Agent's Reimbursement and Indemnification 37
10.9. Notice of Default 38
10.10. Rights as a Lender 38
10.11. Lender Credit Decision 38
10.12. Successor Administrative Agent 38
10.13. Administrative Agent's Fee. 39
10.14. Delegation to Affiliates. 39
ARTICLE XI
SETOFF; RATABLE PAYMENTS 40
11.1. Setoff 40
11.2. Ratable Payments 40
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS 40
12.1. Successors and Assigns 40
12.2. Participations 41
Page iii
12.2.1. Permitted Participants; Effect 41
12.2.2. Voting Rights 41
12.2.3. Benefit of Setoff 41
12.3. Assignments 42
12.3.1. Permitted Assignments 42
12.3.2. Effect; Effective Date 42
12.3.3. Substitution of Lenders 42
12.4. Dissemination of Information 43
12.5. Tax Treatment 43
ARTICLE XIII
NOTICES 43
13.1. Notices 43
13.2. Change of Address 44
ARTICLE XIV
COUNTERPARTS 44
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL 44
15.1. CHOICE OF LAW 44
15.2. CONSENT TO JURISDICTION 44
15.3. WAIVER OF JURY TRIAL 45
EXHIBIT A FORM OF OPINION
EXHIBIT B COMPLIANCE CERTIFICATE
EXHIBIT C ASSIGNMENT AGREEMENT
EXHIBIT D LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
EXHIBIT E NOTE
SCHEDULE 1 LIENS
Page iv
CREDIT AGREEMENT
This Agreement, dated as of August 11, 1998, is among
Kansas City Power & Light Company, the Lenders, The First
National Bank of Chicago, as Administrative Agent and
NationsBank, N.A., as Documentation Agent. The parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Administrative Agent" means The First National Bank of
Chicago in its capacity as contractual representative of the
Lenders pursuant to Article X, and not in its individual
capacity as a Lender, and any successor Administrative Agent
appointed pursuant to Article X.
"Advance" means a borrowing hereunder (or conversion or
continuation thereof) consisting of the aggregate amount of
the several Loans made on the same Borrowing Date (or date of
conversion or continuation) by the Lenders to the Borrower of
the same Type and, in the case of Eurodollar Advances, for
the same Interest Period.
"Affiliate" of any Person means any other Person
directly or indirectly controlling, controlled by or under
common control with such Person. For purposes of this
definition, "control" (including, with correlative meanings,
the terms "controlled by" and "under common control with")
shall mean 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 ownership of voting
securities or by contract or otherwise.
"Aggregate Commitment" means the aggregate of the
Commitments of all the Lenders, as reduced from time to time
pursuant to the terms hereof.
"Agreement" means this credit agreement, as it may be
amended or modified and in effect from time to time.
"Alternate Base Rate" means, for any day, a rate of
interest per annum equal to the higher of (i) the Corporate
Base Rate for such day and (ii) the sum of the Federal Funds
Effective Rate for such day plus 1/2% per annum.
"Applicable Fee Rate" means, at any time, the percentage
rate per annum at which commitment fees are accruing on the
unused portion of the Aggregate Commitment at such time as
set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of
any Type at any time, the percentage rate per annum which is
applicable at such time with respect to Advances of such Type
as set forth in the Pricing Schedule.
"Arranger" means First Chicago Capital Markets, Inc., a
Delaware corporation, and its successors.
"Article" means an article of this Agreement unless
another document is specifically referenced.
"Authorized Officer" means any of the Treasurer or the
Chief Financial Officer of the Borrower, acting singly.
"Bonds" is defined in Section 6.2.
"Bond Documents" means the Bonds, any related offering
circular and all documents, instruments and certificates
delivered in connection therewith.
"Borrower" means Kansas City Power & Light Company, a
Missouri corporation, and its successors and assigns.
"Borrowing Date" means a date on which an Advance is
made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing,
payment or rate selection of Eurodollar Advances, a day
(other than a Saturday or Sunday) on which banks generally
are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities and
on which dealings in United States dollars are carried on in
the London interbank market and (ii) for all other purposes,
a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago for the conduct of
substantially all of their commercial lending activities.
"Capitalized Lease" of a Person means any lease of
Property by such Person as lessee which would be capitalized
on a balance sheet of such Person prepared in accordance with
GAAP.
"Capitalized Lease Obligations" of a Person means the
amount of the obligations of such Person under Capitalized
Leases which would be shown as a liability on a balance sheet
of such Person prepared in accordance with GAAP.
"Code" means the Internal Revenue Code of 1986, as
amended, reformed or otherwise modified from time to time.
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"Commitment" means, for each Lender, the obligation of
such Lender to make Loans not exceeding the amount set forth
opposite its signature below or as set forth in any Notice of
Assignment relating to any assignment that has become
effective pursuant to Section 12.3.2, as such amount may be
modified from time to time pursuant to the terms hereof.
"Contingent Obligation" of a Person means any agreement,
undertaking or arrangement by which such Person assumes,
guarantees, endorses, contingently agrees to purchase or
provide funds for the payment of, or otherwise becomes or is
contingently liable upon, the obligation or liability of any
other Person, or agrees to maintain the net worth or working
capital or other financial condition of any other Person, or
otherwise assures any creditor of such other Person against
loss.
"Conversion/Continuation Notice" is defined in Section
2.9.
"Controlled Group" means all members of a controlled
group of corporations or other business entities and all
trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any of
its Subsidiaries, are treated as a single employer under
Section 414 of the Code.
"Corporate Base Rate" means a rate per annum equal to
the corporate base rate of interest announced by First
Chicago from time to time, changing when and as said
corporate base rate changes.
"Default" means an event described in Article VII.
"Documentation Agent" means NationsBank, N.A., in its
capacity as documentation agent for the Lenders.
"Environmental Laws" means any and all federal, state,
local and foreign statutes, laws, judicial decisions,
regulations, ordinances, rules, judgments, orders, decrees,
plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions
relating to (i) the protection of the environment, (ii) the
effect of the environment on human health, (iii) emissions,
discharges or releases of pollutants, contaminants, hazardous
substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of
pollutants, contaminants, hazardous substances or wastes or
the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and any rule or
regulation issued thereunder.
"Eurodollar Advance" means an Advance which bears
interest at the applicable Eurodollar Rate.
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"Eurodollar Base Rate" means, with respect to a
Eurodollar Advance for the relevant Interest Period, the rate
determined by the Administrative Agent to be the rate at
which First Chicago offers to place deposits in U.S. dollars
with first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, in the
approximate amount of First Chicago's relevant Eurodollar
Loan and having a maturity approximately equal to such
Interest Period.
"Eurodollar Loan" means a Loan which bears interest at
the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar
Advance for the relevant Interest Period, the sum of (i) the
quotient of (a) the Eurodollar Base Rate applicable to such
Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such
Interest Period, plus the Applicable Margin. The Eurodollar
Rate shall be rounded to the next higher multiple of 1/16 of
1% if the rate is not such a multiple.
"Excluded Taxes" means, in the case of each Lender or
applicable Lending Installation and the Administrative Agent,
taxes imposed on its overall net income, and franchise taxes
imposed on it, by (i) the jurisdiction under the laws of
which such Lender or the Administrative Agent is incorporated
or organized or (ii) the jurisdiction in which the
Administrative Agent's or such Lender's principal executive
office or such Lender's applicable Lending Installation is
located.
"Exhibit" refers to an exhibit to this Agreement, unless
another document is specifically referenced.
"Extension Date" is defined in Section 2.19.
"Extension Request" is defined in Section 2.19.
"Facility Termination Date" means August 10, 1999 or any
later date as may be specified as the Facility Termination
Date in accordance with Section 2.19 or any earlier date on
which the Aggregate Commitment is reduced to zero or
otherwise terminated pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an
interest rate per annum equal to the weighted average of the
rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers
on such day, as published for such day (or, if such day is
not a Business Day, for the immediately preceding Business
Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day,
the average of the quotations at approximately 10:00 a.m.
(Chicago time) on such day on such transactions received by
the Administrative Agent from three Federal funds brokers of
recognized standing selected by the Administrative Agent in
its sole discretion.
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"FERC" means the Federal Energy Regulatory Commission
and any successor agency thereto.
"FERC Order" means the order issued by the FERC to
Borrower dated June 4, 1998, Docket No. ES98-26-000, or an
extension, renewal or replacement of such order in form and
substance satisfactory to the Lenders.
"First Chicago" means The First National Bank of Chicago
in its individual capacity, and its successors.
"Floating Rate" means, for any day, a rate per annum
equal to the Alternate Base Rate for such day, in each case
changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which bears
interest at the Floating Rate.
"Floating Rate Loan" means a Loan which bears interest
at the Floating Rate.
"FPA" means the Federal Power Act, as amended, and all
rules and regulations promulgated thereunder.
"GAAP" means generally accepted accounting principles
set forth from time to time in the opinions and
pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and
statements of the Financial Accounting Standards Board.
"Indebtedness" of a Person means such Person's (i)
obligations for borrowed money, (ii) obligations representing
the deferred purchase price of Property or services (other
than accounts payable arising in the ordinary course of such
Person's business payable on terms customary in the trade),
(iii) obligations, whether or not assumed, secured by Liens
or payable out of the proceeds or production from property
now or hereafter owned or acquired by such Person, (iv)
obligations which are evidenced by notes, acceptances, or
other instruments, (v) obligations of such Person to purchase
securities or other property arising out of or in connection
with the sale of the same or substantially similar securities
or property, (vi) Capitalized Lease Obligations, (vii)
Contingent Obligations, (ix) all obligations, contingent or
otherwise, with respect to the face amount of letters of
credit (whether or not drawn) and bankers' acceptances issued
for the account of such Person and (x) any other obligation
for borrowed money or other financial accommodation which in
accordance with GAAP would be shown as a liability on the
consolidated balance sheet of such Person.
"Interest Period" means, with respect to a Eurodollar
Advance, a period of one, two, three or six months commencing
on a Business Day selected by the Borrower pursuant to this
Agreement. Such Interest Period shall end on the day which
corresponds numerically to such date one, two, three or six
months thereafter, provided, however, that if there is no
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such numerically corresponding day in such next, second,
third or sixth succeeding month, such Interest Period shall
end on the last Business Day of such next, second, third or
sixth succeeding month. If an Interest Period would
otherwise end on a day which is not a Business Day, such
Interest Period shall end on the next succeeding Business
Day, provided, however, that if said next succeeding Business
Day falls in a new calendar month, such Interest Period shall
end on the immediately preceding Business Day.
"Lenders" means the lending institutions listed on the
signature pages of this Agreement and their respective
successors and assigns.
"Lending Installation" means, with respect to a Lender
or the Administrative Agent, the office, branch, subsidiary
or affiliate of such Lender or the Administrative Agent
listed on the signature pages hereof or on a Schedule or
otherwise selected by such Lender or the Administrative Agent
pursuant to Section 2.17.
"Lien" means any lien (statutory or other), mortgage,
pledge, hypothecation, assignment, deposit arrangement,
encumbrance or preference, priority or other security
agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a
vendor or lessor under any conditional sale, Capitalized
Lease or other title retention agreement).
"Loan" means, with respect to a Lender, such Lender's
loan made pursuant to Article II (or any conversion or
continuation thereof).
"Loan Documents" means this Agreement and any Notes
issued pursuant to Section 2.13.
"Material Adverse Effect" means a material adverse
effect on (i) the business, Property, condition (financial or
otherwise), results of operations, or prospects of the
Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the
Loan Documents or (iii) the validity or enforceability of any
of the Loan Documents or the rights or remedies of the
Administrative Agent or the Lenders thereunder.
"Material Indebtedness" is defined in Section 7.5.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a Plan maintained pursuant to
a collective bargaining agreement or any other arrangement to
which the Borrower or any member of the Controlled Group is a
party to which more than one employer is obligated to make
contributions.
"Non-U.S. Lender" is defined in Section 3.5(iv).
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"Note" means any promissory note issued at the request
of a Lender pursuant to Section 2.13 in the form of Exhibit
E.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued
and unpaid interest on the Loans, all accrued and unpaid fees
and all expenses, reimbursements, indemnities and other
obligations of the Borrower to the Lenders or to any Lender,
the Administrative Agent or any indemnified party arising
under the Loan Documents.
"Other Taxes" is defined in Section 3.5(ii).
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last Business Day of each
March, June, September and December.
"PBGC" means the Pension Benefit Guaranty Corporation,
or any successor thereto.
"Person" means any natural person, corporation, firm,
joint venture, partnership, limited liability company,
association, enterprise, trust or other entity or
organization, or any government or political subdivision or
any agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum
funding standards under Section 412 of the Code as to which
the Borrower or any member of the Controlled Group may have
any liability.
"Pricing Schedule" means the Schedule attached hereto
identified as such.
"Property" of a Person means any and all property,
whether real, personal, tangible, intangible, or mixed, of
such Person, or other assets owned, leased or operated by
such Person.
"PUHCA" means the Public Utility Holding Company Act of
1935, as amended.
"Purchasers" is defined in Section 12.3.1.
"Regulation D" means Regulation D of the Board of
Governors of the Federal Reserve System as from time to time
in effect and any successor thereto or other regulation or
official interpretation of said Board of Governors relating
to reserve requirements applicable to member banks of the
Federal Reserve System.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System as from time to time
in effect and any successor or other regulation or
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official interpretation of said Board of Governors relating
to the extension of credit by banks for the purpose of purchasing
or carrying margin stocks applicable to member banks of the
Federal Reserve System.
"Reportable Event" means a reportable event as defined
in Section 4043 of ERISA and the regulations issued under
such section, with respect to a Plan, excluding, however,
such events as to which the PBGC has by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified
within 30 days of the occurrence of such event, provided,
however, that a failure to meet the minimum funding standard
of Section 412 of the Code and of Section 302 of ERISA shall
be a Reportable Event regardless of the issuance of any such
waiver of the notice requirement in accordance with either
Section 4043(a) of ERISA or Section 412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having
at least 66- % of the Aggregate Commitment or, if the
Aggregate Commitment has been terminated, Lenders in the
aggregate holding at least 66- % of the aggregate unpaid
principal amount of the outstanding Advances.
"Reserve Requirement" means, with respect to an Interest
Period, the maximum aggregate reserve requirement (including
all basic, supplemental, marginal and other reserves) which
is imposed under Regulation D on Eurocurrency liabilities.
"S&P" means Standard and Poor's Ratings Services, a
division of The McGraw Hill Companies, Inc.
"Schedule" refers to a specific schedule to this
Agreement, unless another document is specifically
referenced.
"Section" means a numbered section of this Agreement,
unless another document is specifically referenced.
"Significant Subsidiary" means, at any time, each
Subsidiary of the Borrower in which the Borrower has, at such
time, an investment, either directly or indirectly, of
$100,000,000 or more, whether through loans or advances,
equity investments, capital contributions, Contingent
Obligations or otherwise, with all such investments
determined at the original amount thereof, without giving
effect to any writedowns or writeoffs of any such investment.
"Single Employer Plan" means a Plan maintained by the
Borrower or any member of the Controlled Group for employees
of the Borrower or any member of the Controlled Group.
"Subsidiary" of a Person means (i) any corporation more
than 50% of the outstanding securities having ordinary voting
power of which shall at the time be owned or controlled,
Page 8
directly or indirectly, by such Person or by one or more of
its Subsidiaries or by such Person and one or more of its
Subsidiaries, or (ii) any partnership, limited liability
company, association, joint venture or similar business
organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned
or controlled. Unless otherwise expressly provided, all
references herein to a "Subsidiary" shall mean a Subsidiary
of the Borrower.
"Substantial Portion" means, with respect to the
Property of the Borrower and its Subsidiaries, Property which
(i) represents more than 10% of the consolidated assets of
the Borrower and its Subsidiaries as would be shown in the
consolidated financial statements of the Borrower and its
Subsidiaries as at the beginning of the twelve-month period
ending with the month in which such determination is made, or
(ii) is responsible for more than 10% of the consolidated net
sales or of the consolidated net income of the Borrower and
its Subsidiaries as reflected in the financial statements
referred to in clause (i) above.
"Taxes" means any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings,
and any and all liabilities with respect to the foregoing,
but excluding Excluded Taxes.
"`34 Act Reports" means the periodic reports of the
Borrower filed with the Securities and Exchange Commission on
Forms 10K, 10Q and 8K (or any successor forms thereto).
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as
a Floating Rate Advance or a Eurodollar Advance.
"Unmatured Default" means an event which but for the
lapse of time or the giving of notice, or both, would
constitute a Default.
"Western Merger Transactions" means, collectively, the
mergers and related transactions contemplated by the Amended
and Restated Plan of Merger, dated as of March 18, 1998, by
and among Western Resources, Inc., Kansas Gas & Electric
Company, NKC, Inc. and the Borrower.
"Wholly-Owned Subsidiary" of a Person means (i) any
Subsidiary all of the outstanding voting securities of which
shall at the time be owned or controlled, directly or
indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or
more Wholly-Owned Subsidiaries of such Person, or (ii) any
partnership, limited liability company, association, joint
venture or similar business organization 100% of the
ownership interests having ordinary voting power of which
shall at the time be so owned or controlled.
Page 9
"Year 2000 Problem" means the risk that computer
applications and embedded microchips in non-computing devices
may be unable to recognize and perform properly date-
sensitive functions involving certain dates prior to and any
date after December 31, 1999.
The foregoing definitions shall be equally applicable to
both the singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. Commitment. From and including the date of
this Agreement and prior to the Facility Termination Date,
each Lender severally agrees, on the terms and conditions set
forth in this Agreement, to make Loans to the Borrower from
time to time in amounts not to exceed in the aggregate at any
one time outstanding the amount of its Commitment. Subject
to the terms of this Agreement, the Borrower may borrow,
repay and reborrow at any time prior to the Facility
Termination Date. The Commitments to lend hereunder shall
expire on the Facility Termination Date.
2.2. Required Payments; Termination. Any
outstanding Advances and all other unpaid Obligations shall
be paid in full by the Borrower on the Facility Termination
Date.
2.3. Ratable Loans. Each Advance hereunder shall
consist of Loans made from the several Lenders ratably in
proportion to the ratio that their respective Commitments
bear to the Aggregate Commitment.
2.4. Types of Advances. The Advances may be
Floating Rate Advances or Eurodollar Advances, or a
combination thereof, selected by the Borrower in accordance
with Sections 2.8 and 2.9.
2.5. Commitment Fee; Reductions in Aggregate
Commitment. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a commitment fee at a
per annum rate equal to the Applicable Fee Rate on the daily
unused portion of such Lender's Commitment from the date
hereof to and including the Facility Termination Date,
payable on each Payment Date hereafter and on the Facility
Termination Date. The Borrower may permanently reduce the
Aggregate Commitment in whole, or in part ratably among the
Lenders in integral multiples of $10,000,000, upon at least
three Business Days' prior written notice to the
Administrative Agent, which notice shall specify the amount
of any such reduction, provided, however, that the amount of
the Aggregate Commitment may not be reduced below the
aggregate principal amount of the outstanding Advances. All
accrued commitment fees shall be payable on the effective
date of any termination of the obligations of the Lenders to
make Loans hereunder.
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2.6. Minimum Amount of Each Advance. Each
Eurodollar Advance shall be in the minimum amount of
$5,000,000 (and in multiples of $1,000,000 if in excess
thereof), and each Floating Rate Advance shall be in the
minimum amount of $5,000,000 (and in multiples of $1,000,000
if in excess thereof), provided, however, that any Floating
Rate Advance may be in the amount of the unused Aggregate
Commitment.
2.7. Optional Principal Payments. The Borrower may
from time to time pay, without penalty or premium, all
outstanding Floating Rate Advances, or, in a minimum
aggregate amount of $5,000,000 or any integral multiple of
$100,000 in excess thereof, any portion of the outstanding
Floating Rate Advances upon two Business Days' prior notice
to the Administrative Agent. The Borrower may from time to
time pay, subject to the payment of any funding
indemnification amounts required by Section 3.4 but without
penalty or premium, all outstanding Eurodollar Advances, or,
in a minimum aggregate amount of $5,000,000 or any integral
multiple of $100,000 in excess thereof, any portion of the
outstanding Eurodollar Advances upon three Business Days'
prior notice to the Administrative Agent.
2.8. Method of Selecting Types and Interest Periods
for New Advances. The Borrower shall select the Type of
Advance and, in the case of each Eurodollar Advance, the
Interest Period applicable thereto from time to time. The
Borrower shall give the Administrative Agent irrevocable
notice (a "Borrowing Notice") not later than 11:00 a.m.
(Chicago time) on the Borrowing Date of each Floating Rate
Advance and not later than 11:00 a.m. (Chicago time) three
Business Days before the Borrowing Date for each Eurodollar
Advance, specifying:
(i) the Borrowing Date, which shall be a Business
Day, of such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the
Interest Period applicable thereto.
Not later than noon (Chicago time) on each Borrowing Date,
each Lender shall make available its Loan or Loans in funds
immediately available in Chicago to the Administrative Agent
at its address specified pursuant to Article XIII. The
Administrative Agent will make the funds so received from the
Lenders available to the Borrower at the Administrative
Agent's aforesaid address.
2.9. Conversion and Continuation of Outstanding
Advances. Floating Rate Advances shall continue as Floating
Rate Advances unless and until such Floating Rate Advances
are converted into Eurodollar Advances pursuant to this
Section 2.9 or are repaid in accordance with Section 2.7.
Each Eurodollar Advance shall continue as a Eurodollar
Advance until the end of the then applicable Interest Period
therefor, at which time such
Page 11
Eurodollar Advance shall be automatically converted into a
Floating Rate Advance unless (x) such Eurodollar Advance is
or was repaid in accordance with Section 2.7 or (y) the
Borrower shall have given the Administrative Agent a
Conversion/Continuation Notice (as defined below) requesting
that, at the end of such Interest Period, such Eurodollar
Advance continue as a Eurodollar Advance for the same or
another Interest Period. Subject to the terms of Section 2.6,
the Borrower may elect from time to time to convert all or
any part of a Floating Rate Advance into a Eurodollar Advance.
The Borrower shall give the Administrative Agent irrevocable notice
(a "Conversion/Continuation Notice") of each conversion of a
Floating Rate Advance into a Eurodollar Advance or
continuation of a Eurodollar Advance not later than 10:00
a.m. (Chicago time) at least three Business Days prior to the
date of the requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business
Day, of such conversion or continuation,
(ii) the aggregate amount and Type of the Advance
which is to be converted or continued, and
(iii) the amount of such Advance which is to be
converted into or continued as a Eurodollar Advance
and the duration of the Interest Period applicable
thereto.
2.10. Changes in Interest Rate, etc. Each Floating
Rate Advance shall bear interest on the outstanding principal
amount thereof, for each day from and including the date such
Advance is made or is automatically converted from a
Eurodollar Advance into a Floating Rate Advance pursuant to
Section 2.9, to but excluding the date it is paid or is
converted into a Eurodollar Advance pursuant to Section 2.9
hereof, at a rate per annum equal to the Floating Rate for
such day. Changes in the rate of interest on that portion of
any Advance maintained as a Floating Rate Advance will take
effect simultaneously with each change in the Alternate Base
Rate. Each Eurodollar Advance shall bear interest on the
outstanding principal amount thereof from and including the
first day of the Interest Period applicable thereto to (but
not including) the last day of such Interest Period at the
interest rate determined by the Administrative Agent as
applicable to such Eurodollar Advance based upon the
Borrower's selections under Section 2.8 and 2.9 and otherwise
in accordance with the terms hereof. No Interest Period may
end after the Facility Termination Date.
2.11. Rates Applicable After Default.
Notwithstanding anything to the contrary contained in Section
2.8 or 2.9, during the continuance of a Default or Unmatured
Default the Required Lenders may, at their option, by notice
to the Borrower (which notice may be revoked at the option of
the Required Lenders notwithstanding any provision of Section
8.2 requiring unanimous consent of the Lenders to changes in
interest rates), declare that no Advance may be made as,
converted into or continued as a Eurodollar Advance. During
the continuance of a Default the Required Lenders may, at
their option, by notice to the Borrower (which notice may be
revoked at the option of the Required Lenders notwithstanding
any provision of Section 8.2 requiring unanimous consent of
the Lenders to
Page 12
changes in interest rates), declare that (i) each Eurodollar
Advance shall bear interest for the remainder of the applicable
Interest Period at the rate otherwise applicable to such
Interest Period plus 2% per annum and (ii) each Floating Rate
Advance shall bear interest at a rate per annum equal to the
Floating Rate in effect from time to time plus 2% per annum,
provided that, during the continuance of a Default under
Section 7.6 or 7.7, the interest rates set forth in clauses
(i) and (ii) above shall be applicable to all Advances without
any election or action on the part of the Administrative Agent
or any Lender.
2.12. Method of Payment. All payments of the
Obligations hereunder shall be made, without setoff,
deduction, or counterclaim, in immediately available funds to
the Administrative Agent at the Administrative Agent's
address specified pursuant to Article XIII, or at any other
Lending Installation of the Administrative Agent specified in
writing by the Administrative Agent to the Borrower, by noon
(local time) on the date when due and shall be applied
ratably by the Administrative Agent among the Lenders. Each
payment delivered to the Administrative Agent for the account
of any Lender shall be delivered promptly by the
Administrative Agent to such Lender in the same type of funds
that the Administrative Agent received at its address
specified pursuant to Article XIII or at any Lending
Installation specified in a notice received by the
Administrative Agent from such Lender.
2.13. Noteless Agreement; Evidence of Indebtedness.
(i) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness
of the Borrower to such Lender resulting from each Loan made
by such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from
time to time hereunder.
(ii) The Administrative Agent shall also maintain
accounts in which it will record (a) the amount of each Loan
made hereunder, the Type thereof and the Interest Period with
respect thereto, (b) the amount of any principal or interest
due and payable or to become due and payable from the
Borrower to each Lender hereunder and (c) the amount of any
sum received by the Administrative Agent hereunder from the
Borrower and each Lender's share thereof.
(iii) The entries maintained in the accounts maintained
pursuant to paragraphs (i) and (ii) above shall be prima
facie evidence of the existence and amounts of the
Obligations therein recorded; provided, however, that the
failure of the Administrative Agent or any Lender to maintain
such accounts or any error therein shall not in any manner
affect the obligation of the Borrower to repay the
Obligations in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced
by a promissory note (a "Note"). In such event, the Borrower
shall prepare, execute and deliver to such Lender a Note
payable to the order of such Lender in substantially the form
of Exhibit E hereto. Thereafter, the Loans evidenced by such
Note and interest thereon shall at all times (including after
any assignment pursuant to Section 12.3) be represented by
one or more
Page 13
Notes payable to the order of the payee named therein or any
assignee pursuant to Section 12.3, except to the extent that
any such Lender or assignee subsequently returns any such
Note for cancellation and requests that such Loans once again
be evidenced as described in paragraphs (i) and (ii) above.
2.14. Telephonic Notices. The Borrower hereby
authorizes the Lenders and the Administrative Agent to
extend, convert or continue Advances, effect selections of
Types of Advances and to transfer funds based on telephonic
notices made by any person or persons the Administrative
Agent or any Lender in good faith believes to be acting on
behalf of the Borrower. The Borrower agrees to deliver
promptly to the Administrative Agent a written confirmation,
if such confirmation is requested by the Administrative Agent
or any Lender, of each telephonic notice signed by an
Authorized Officer. If the written confirmation differs in
any material respect from the action taken by the
Administrative Agent and the Lenders, the records of the
Administrative Agent and the Lenders shall govern absent
manifest error.
2.15. Interest Payment Dates; Interest and Fee
Basis. Interest accrued on each Floating Rate Advance shall
be payable on each Payment Date, commencing with the first
such date to occur after the date hereof and at maturity.
Interest accrued on each Eurodollar Advance shall be payable
on the last day of its applicable Interest Period, on any
date on which the Eurodollar Advance is prepaid, whether by
acceleration or otherwise, and at maturity. Interest accrued
on each Eurodollar Advance having an Interest Period longer
than three months shall also be payable on the last day of
each three-month interval during such Interest Period.
Interest and commitment fees shall be calculated for actual
days elapsed on the basis of a 360-day year. Interest shall
be payable for the day an Advance is made but not for the day
of any payment on the amount paid if payment is received
prior to noon (local time) at the place of payment (it being
understood that the Administrative Agent shall be deemed to
have received a payment prior to noon (local time) if (x) the
Borrower has provided the Administrative Agent with evidence
satisfactory to the Administrative Agent that the Borrower
has initiated a wire transfer of such payment prior to such
time and (y) the Administrative Agent actually receives such
payment on the same Business Day on which such wire transfer
was initiated). If any payment of principal of or interest
on an Advance shall become due on a day which is not a
Business Day, such payment shall be made on the next
succeeding Business Day and, in the case of a principal
payment, such extension of time shall be included in
computing interest in connection with such payment.
2.16. Notification of Advances, Interest Rates,
Prepayments and Commitment Reductions. Promptly after
receipt thereof, the Administrative Agent will notify each
Lender of the contents of each Aggregate Commitment reduction
notice, Borrowing Notice, Conversion/Continuation Notice, and
repayment notice received by it hereunder. The
Administrative Agent will notify each Lender of the interest
rate applicable to each Eurodollar Advance promptly upon
determination of such interest rate and will give each Lender
prompt notice of each change in the Alternate Base Rate.
Page 14
2.17. Lending Installations. Each Lender may book
its Loans at any Lending Installation selected by such Lender
and may change its Lending Installation from time to time.
All terms of this Agreement shall apply to any such Lending
Installation and the Loans and any Notes issued hereunder
shall be deemed held by each Lender for the benefit of such
Lending Installation. Each Lender may, by written notice to
the Administrative Agent and the Borrower in accordance with
Article XIII, designate replacement or additional Lending
Installations through which Loans will be made by it and for
whose account Loan payments are to be made.
2.18. Non-Receipt of Funds by the Administrative
Agent. Unless the Borrower or a Lender, as the case may be,
notifies the Administrative Agent prior to the date on which
it is scheduled to make payment to the Administrative Agent
of (i) in the case of a Lender, the proceeds of a Loan or
(ii) in the case of the Borrower, a payment of principal,
interest or fees to the Administrative Agent for the account
of the Lenders, that it does not intend to make such payment,
the Administrative Agent may assume that such payment has
been made. The Administrative Agent may, but shall not be
obligated to, make the amount of such payment available to
the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in
fact made such payment to the Administrative Agent, the
recipient of such payment shall, on demand by the
Administrative Agent, repay to the Administrative Agent the
amount so made available together with interest thereon in
respect of each day during the period commencing on the date
such amount was so made available by the Administrative Agent
until the date the Administrative Agent recovers such amount
at a rate per annum equal to (x) in the case of payment by a
Lender, the Federal Funds Effective Rate for such day or (y)
in the case of payment by the Borrower, the interest rate
applicable to the relevant Loan.
2.19. Extension of Facility Termination Date. The
Borrower may request an extension of the Facility Termination
Date by submitting a request for an extension to the
Administrative Agent (an "Extension Request") no more than 60
days prior to the Facility Termination Date. The Extension
Request must specify the new Facility Termination Date
requested by the Borrower and the date (which must be at
least 30 days after the Extension Request is delivered to the
Administrative Agent) as of which the Lenders must respond to
the Extension Request (the "Response Date"). The new
Facility Termination Date shall be no more than 364 days
after the Facility Termination Date in effect at the time the
Extension Request is received, including the Facility
Termination Date as one of the days in the calculation of the
days elapsed. Promptly upon receipt of an Extension Request,
the Administrative Agent shall notify each Lender of the
contents thereof and shall request each Lender to approve the
Extension Request. Each Lender approving the Extension
Request shall deliver its written consent no later than the
Response Date. If the consent of each of the Lenders is
received by the Administrative Agent, the Facility
Termination Date specified in the Extension Request shall
become effective on the existing Facility Termination Date
and the Administrative Agent shall promptly notify the
Borrower and each Lender of the new Facility Termination
Date.
Page 15
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the date of
this Agreement, the adoption of any law or any governmental
or quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any
governmental or quasi-governmental authority, central bank or
comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive
(whether or not having the force of law) of any such
authority, central bank or comparable agency:
(i) subjects any Lender or any applicable Lending
Installation to any Taxes, or changes the basis of
taxation of payments (other than with respect to
Excluded Taxes) to any Lender in respect of its
Eurodollar Loans, or
(ii) imposes or increases or deems applicable any
reserve, assessment, insurance charge, special
deposit or similar requirement against assets of,
deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending
Installation (other than reserves and assessments
taken into account in determining the interest rate
applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of
which is to increase the cost to any Lender or any
applicable Lending Installation of making, funding
or maintaining its Eurodollar Loans or reduces any
amount receivable by any Lender or any applicable
Lending Installation in connection with its
Eurodollar Loans, or requires any Lender or any
applicable Lending Installation to make any payment
calculated by reference to the amount of Eurodollar
Loans held or interest received by it, by an amount
deemed material by such Lender,
and the result of any of the foregoing is to increase the
cost to such Lender or applicable Lending Installation of
making or maintaining its Eurodollar Loans or Commitment or
to reduce the return received by such Lender or applicable
Lending Installation in connection with such Eurodollar Loans
or Commitment, then, within 15 days of demand by such Lender,
the Borrower shall pay such Lender such additional amount or
amounts as will compensate such Lender for such increased
cost or reduction in amount received.
3.2. Changes in Capital Adequacy Regulations. If a
Lender determines the amount of capital required or expected
to be maintained by such Lender, any Lending Installation of
such Lender or any corporation controlling such Lender is
increased as a result of a Change, then, within 15 days of
demand by such Lender, the Borrower shall pay such Lender the
amount necessary to compensate for any shortfall in the rate
of return on the portion of such increased capital which such
Lender determines is attributable to this Agreement, its Loans
Page 16
or its Commitment to make Loans hereunder (after taking
into account such Lender's policies as to capital adequacy).
"Change" means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines or (ii) any
adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force
of law) after the date of this Agreement which affects the
amount of capital required or expected to be maintained by
any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines"
means (i) the risk-based capital guidelines in effect in the
United States on the date of this Agreement, including
transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the
United States implementing the July 1988 report of the Basle
Committee on Banking Regulation and Supervisory Practices
Entitled "International Convergence of Capital Measurements
and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of
this Agreement.
3.3. Availability of Types of Advances. If (i) any
Lender determines that maintenance of its Eurodollar Loans at
a suitable Lending Installation would violate any applicable
law, rule, regulation, or directive, whether or not having
the force of law, or (ii) the Required Lenders determine that
(a) deposits of a type and maturity appropriate to match fund
Eurodollar Advances are not available or (b) the interest
rate applicable to a Type of Advance does not accurately
reflect the cost of making or maintaining such Advance, then
the Administrative Agent shall suspend the availability of
the affected Type of Advance and, in the case of clause (i),
require any affected Eurodollar Advances to be repaid or
converted to Floating Rate Advances, subject to the payment
of any funding indemnification amounts required by Section
3.4.
3.4. Funding Indemnification. If any payment of a
Eurodollar Advance occurs on a date which is not the last day
of the applicable Interest Period, whether because of
acceleration, prepayment or otherwise, or a Eurodollar
Advance is not made on the date specified by the Borrower for
any reason other than default by the Lenders, the Borrower
will indemnify each Lender for any loss or cost incurred by
it resulting therefrom, including, without limitation, any
loss or cost in liquidating or employing deposits acquired to
fund or maintain such Eurodollar Advance.
3.5. Taxes. (i) All payments by the Borrower to or for
the account of any Lender or the Administrative Agent
hereunder or under any Note shall be made free and clear of
and without deduction for any and all Taxes. If the Borrower
shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any Lender or the
Administrative Agent, (a) the sum payable shall be increased
as necessary so that after making all required deductions
(including deductions applicable to additional sums payable
under this Section 3.5) such Lender or the Administrative
Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made,
(b) the Borrower shall make such deductions, (c) the Borrower
shall pay the full amount deducted to the relevant authority
in accordance with applicable law and (d) the
Page 17
Borrower shall furnish to the Administrative Agent the original
copy of a receipt evidencing payment thereof within 30 days after
such payment is made.
(ii) In addition, the Borrower hereby agrees to pay any
present or future stamp or documentary taxes and any other
excise or property taxes, charges or similar levies which
arise from any payment made hereunder or under any Note or
from the execution or delivery of, or otherwise with respect
to, this Agreement or any Note ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the
Administrative Agent and each Lender for the full amount of
Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed on amounts payable under this
Section 3.5) paid by the Administrative Agent or such Lender
and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto.
Payments due under this indemnification shall be made within
30 days of the date the Administrative Agent or such Lender
makes demand therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the
laws of the United States of America or a state thereof (each
a "Non-U.S. Lender") agrees that it will, not less than ten
Business Days after the date of this Agreement, (i) deliver
to each of the Borrower and the Administrative Agent two duly
completed copies of United States Internal Revenue Service
Form 1001 or 4224, certifying in either case that such Lender
is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income
taxes, and (ii) deliver to each of the Borrower and the
Administrative Agent a United States Internal Revenue Form W-
8 or W-9, as the case may be, and certify that it is entitled
to an exemption from United States backup withholding tax.
Each Non-U.S. Lender further undertakes to deliver to each of
the Borrower and the Administrative Agent (x) renewals or
additional copies of such form (or any successor form) on or
before the date that such form expires or becomes obsolete,
and (y) after the occurrence of any event requiring a change
in the most recent forms so delivered by it, such additional
forms or amendments thereto as may be reasonably requested by
the Borrower or the Administrative Agent. All forms or
amendments described in the preceding sentence shall certify
that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United
States federal income taxes, unless an event (including
without limitation any change in treaty, law or regulation)
has occurred prior to the date on which any such delivery
would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly
completing and delivering any such form or amendment with
respect to it and such Lender advises the Borrower and the
Administrative Agent that it is not capable of receiving
payments without any deduction or withholding of United
States federal income tax.
(v) For any period during which a Non-U.S. Lender has
failed to provide the Borrower with an appropriate form
pursuant to clause (iv), above (unless such failure is due to
a change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any governmental
authority, occurring subsequent to the date on which a form
Page 18
originally was required to be provided), such Non-U.S. Lender
shall not be entitled to indemnification under this Section
3.5 with respect to Taxes imposed by the United States;
provided that, should a Non-U.S. Lender which is otherwise
exempt from or subject to a reduced rate of withholding tax
become subject to Taxes because of its failure to deliver a
form required under clause (iv), above, the Borrower shall
take such steps as such Non-U.S. Lender shall reasonably
request to assist such Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from
or reduction of withholding tax with respect to payments
under this Agreement or any Note pursuant to the law of any
relevant jurisdiction or any treaty shall deliver to the
Borrower (with a copy to the Administrative Agent), at the
time or times prescribed by applicable law, 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.
3.6. Lender Statements; Survival of Indemnity. To
the extent reasonably possible and upon the request of the
Borrower, each Lender shall designate an alternate Lending
Installation with respect to its Eurodollar Loans to reduce
any liability of the Borrower to such Lender under Sections
3.1, 3.2 and 3.5 or to avoid the unavailability of Eurodollar
Advances under Section 3.3, so long as such designation is
not, in the judgment of such Lender, disadvantageous to such
Lender. Each Lender shall deliver a written statement of
such Lender to the Borrower (with a copy to the
Administrative Agent) as to the amount due, if any, under
Section 3.1, 3.2, 3.4 or 3.5. Such written statement shall
set forth in reasonable detail the calculations upon which
such Lender determined such amount and shall be final,
conclusive and binding on the Borrower in the absence of
manifest error. Determination of amounts payable under such
Sections in connection with a Eurodollar Loan shall be
calculated as though each Lender funded its Eurodollar Loan
through the purchase of a deposit of the type and maturity
corresponding to the deposit used as a reference in
determining the Eurodollar Rate applicable to such Loan,
whether in fact that is the case or not. Unless otherwise
provided herein, the amount specified in the written
statement of any Lender shall be payable on demand after
receipt by the Borrower of such written statement. The
obligations of the Borrower under Sections 3.1, 3.2, 3.4 and
3.5 shall survive payment of the Obligations and termination
of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Advance. The Lenders shall not be
required to make the initial Advance hereunder unless the
Borrower has furnished to the Administrative Agent with
sufficient copies for the Lenders:
Page 19
(i) Copies of the articles or certificate of
incorporation of the Borrower, together with all
amendments, and a certificate of good standing,
each certified by the appropriate governmental
officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or
Assistant Secretary of the Borrower, of its by-laws
and of its Board of Directors' resolutions and of
resolutions or actions of any other body
authorizing the execution of the Loan Documents to
which the Borrower is a party.
(iii) An incumbency certificate, executed by
the Secretary or Assistant Secretary of the
Borrower, which shall identify by name and title
and bear the signatures of the Authorized Officers
and any other officers of the Borrower authorized
to sign the Loan Documents to which the Borrower is
a party, upon which certificate the Administrative
Agent and the Lenders shall be entitled to rely
until informed of any change in writing by the
Borrower.
(iv) A certificate, signed by the chief financial
officer of the Borrower, stating that on the
initial Borrowing Date no Default or Unmatured
Default has occurred and is continuing.
(v) A written opinion of the Borrower's counsel,
addressed to the Lenders in substantially the form
of Exhibit A.
(vi) Any Notes requested by a Lender pursuant to
Section 2.13 payable to the order of each such
requesting Lender.
(vii) A certified copy of the FERC Order
authorizing the Borrower to incur the Indebtedness
contemplated by the Loan Documents.
(viii) Written money transfer instructions, in
substantially the form of Exhibit D, addressed to
the Administrative Agent and signed by an
Authorized Officer, together with such other
related money transfer authorizations as the
Administrative Agent may have reasonably requested.
(ix) Copies of the Bond Documents, certified by the
Secretary or an Assistant Secretary of the
Borrower.
(x) Such other documents as any Lender or its
counsel may have reasonably requested.
4.2. Each Advance. The Lenders shall not be
required to make any Advance (other than an Advance that,
after giving effect thereto and to the application of the
proceeds thereof, does not increase the aggregate amount of
outstanding Advances), unless on the applicable Borrowing
Date:
Page 20
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained
in Article V are true and correct as of such
Borrowing Date except to the extent any such
representation or warranty is stated to relate
solely to an earlier date, in which case such
representation or warranty shall have been true and
correct on and as of such earlier date.
(iii) The FERC Order shall not have expired or
been revoked and shall permit the Borrower to incur
the Indebtedness evidenced by such Advance. The
Borrower shall, upon request, provide the
Administrative Agent with evidence satisfactory to
the Administrative Agent that, after giving effect
to such Advance, the aggregate amount of short-term
debt instruments issued by the Borrower in reliance
upon the FERC Order shall not exceed the maximum
amount of Indebtedness authorized by the FERC
Order.
Each Borrowing Notice with respect to each such Advance
shall constitute a representation and warranty by the
Borrower that the conditions contained in Sections 4.2(i) and
(ii) have been satisfied. Any Lender may require a duly
completed compliance certificate in substantially the form of
Exhibit B as a condition to making an Advance.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders
that:
5.1. Existence and Standing. Each of the Borrower
and its Subsidiaries is a corporation, partnership (in the
case of Subsidiaries only) or limited liability company duly
and properly incorporated or organized, as the case may be,
validly existing and (to the extent such concept applies to
such entity) in good standing under the laws of its
jurisdiction of incorporation or organization and has all
requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
5.2. Authorization and Validity. The Borrower has
the power and authority and legal right to execute and
deliver the Loan Documents and to perform its obligations
thereunder. The execution and delivery by the Borrower of
the Loan Documents and the performance of its obligations
thereunder have been duly authorized by proper corporate
proceedings, and the Loan Documents constitute legal, valid
and binding obligations of the Borrower enforceable against
the Borrower in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights
generally.
Page 21
5.3. No Conflict; Government Consent. Neither the
execution and delivery by the Borrower of the Loan Documents,
nor the consummation of the transactions therein
contemplated, nor compliance with the provisions thereof will
violate (i) any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Borrower or (ii)
the Borrower's articles or certificate of incorporation or
by-laws or (iii) the provisions of any indenture, instrument
or agreement to which the Borrower is a party or is subject,
or by which it, or its Property, is bound, or conflict with
or constitute a default thereunder, or result in, or require,
the creation or imposition of any Lien in, of or on the
Property of the Borrower pursuant to the terms of any such
indenture, instrument or agreement. No order, consent,
adjudication, approval, license, authorization, or validation
of, or filing, recording or registration with, or exemption
by, or other action in respect of any governmental or public
body or authority (including without limitation the FERC), or
any subdivision thereof, which has not been obtained by the
Borrower, is required to be obtained by the Borrower in
connection with the execution and delivery of the Loan
Documents, the borrowings under this Agreement, the payment
and performance by the Borrower of the Obligations or the
legality, validity, binding effect or enforceability of any
of the Loan Documents.
5.4. Financial Statements. The December 31, 1997
consolidated financial statements of the Borrower and its
Subsidiaries heretofore delivered to the Lenders were
prepared in accordance with GAAP and fairly present the
consolidated financial condition and operations of the
Borrower and its Subsidiaries at such date and the
consolidated results of their operations for the period then
ended.
5.5. Material Adverse Change. Since March 31, 1998
there has been no change in the business, Property,
prospects, condition (financial or otherwise) or results of
operations of the Borrower and its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.
5.6. Taxes. The Borrower and its Subsidiaries have
filed all United States federal tax returns and all other tax
returns which are required to be filed and have paid all
taxes due pursuant to said returns or pursuant to any
assessment received by the Borrower or any of its
Subsidiaries, except such taxes, if any, as are being
contested in good faith and as to which adequate reserves
have been provided in accordance with GAAP and as to which no
Lien exists. The United States income tax returns of the
Borrower and its Subsidiaries have been audited by the
Internal Revenue Service through the fiscal year ended
December 31, 1990. No tax liens have been filed and no
material claims are being asserted with respect to any such
taxes. The charges, accruals and reserves on the books of
the Borrower and its Subsidiaries in respect of any taxes or
other governmental charges are adequate.
5.7. Litigation and Contingent Obligations. Except
as set forth in the Borrower's `34 Act Reports, there is no
litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the knowledge of any of
their officers, threatened against or affecting the Borrower
or any of its Subsidiaries which could reasonably be expected
to have a Material Adverse Effect or which seeks to prevent,
enjoin or delay the making of any Loans.
Page 22
Other than any liability incident to any litigation, arbitration
or proceeding which could not reasonably be expected to have a
Material Adverse Effect, the Borrower has no material
contingent obligations not provided for or disclosed in the
financial statements referred to in Section 5.4.
5.8. ERISA. The Borrower and each other member of
the Controlled Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Code with respect
to each Plan and is in compliance in all material respects
with the presently applicable provisions of ERISA and the
Code with respect to each Plan. Neither the Borrower nor any
other member of the Controlled Group has (i) sought a waiver
of the minimum funding standard under Section 412 of the Code
in respect of any Plan, (ii) failed to make any contribution
or payment to any Plan or Multiemployer Plan, or made any
amendment to any Plan which has resulted or could result in
the imposition of a Lien or the posting of a bond or other
security under ERISA or the Code or (iii) incurred any
liability under Title IV of ERISA other than a liability to
the PBGC for premiums under Section 4007 of ERISA.
5.9. Accuracy of Information. No information, exhibit
or report furnished by the Borrower or any of its
Subsidiaries to the Administrative Agent or to any Lender in
connection with the negotiation of, or compliance with, the
Loan Documents contained any material misstatement of fact or
omitted to state a material fact or any fact necessary to
make the statements contained therein not misleading.
5.10. Regulation U. Margin stock (as defined in
Regulation U) constitutes less than 25% of the value of those
assets of the Borrower and its Subsidiaries which are subject
to any limitation on sale, pledge or other restriction
hereunder.
5.11. Material Agreements. Neither the Borrower nor
any Subsidiary is a party to any agreement or instrument or
subject to any charter or other corporate restriction which
is reasonably likely to have a Material Adverse Effect.
Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any
agreement to which it is a party, which default could
reasonably be expected to have a Material Adverse Effect.
5.12. Compliance With Laws. The Borrower and its
Subsidiaries have complied with all applicable statutes,
rules, regulations, orders and restrictions of any domestic
or foreign government or any instrumentality or agency
thereof having jurisdiction over the conduct of their
respective businesses or the ownership of their respective
Property except for any failure to comply with any of the
foregoing which could not reasonably be expected to have a
Material Adverse Effect.
5.13. Ownership of Properties. Except as set forth
on Schedule 1, on the date of this Agreement, the Borrower
and its Significant Subsidiaries will have good title, free
of all Liens other than those permitted by Section 6.11, to
all of the Property and assets reflected
Page 23
in the Borrower's most recent consolidated financial statements
provided to the Administrative Agent as owned by the Borrower
and its Subsidiaries.
5.14. Plan Assets; Prohibited Transactions. The
Borrower is not an entity deemed to hold "plan assets" within
the meaning of 29 C.F.R. 2510.3-101 of an employee benefit
plan (as defined in Section 3(3) of ERISA) which is subject
to Title I of ERISA or any plan (within the meaning of
Section 4975 of the Code), and neither the execution of this
Agreement nor the making of Loans hereunder gives rise to a
prohibited transaction within the meaning of Section 406 of
ERISA or Section 4975 of the Code.
5.15. Environmental Matters. Except as set forth in
the Borrower's '34 Act Reports, there are no risks and
liabilities accruing to the Borrower due to Environmental
Laws that could reasonably be expected to have a Material
Adverse Effect.
5.16. Investment Company Act. Neither the Borrower
nor any Subsidiary is an "investment company" or a company
"controlled" by an "investment company", within the meaning
of the Investment Company Act of 1940, as amended.
5.17. Public Utility Holding Company Act. The
Borrower is a public utility. Neither Borrower or any
Subsidiary is a "holding company," a "subsidiary company" of
a "holding company" or an "affiliate" of a "holding company"
or of a "subsidiary company" of a "holding company", within
the meaning of PUHCA.
5.18. Pari Passu Indebtedness. The Indebtedness under
the Loan Documents ranks at least pari passu with all other
unsecured Indebtedness of the Borrower.
5.19 Year 2000 Problem. The Borrower and its
Subsidiaries (a) have reviewed the areas within their
business and operations which could be adversely affected by,
and have developed or are developing a program to address on
a timely basis, the Year 2000 Problem and (b) have made
appropriate inquiries as to the effect the Year 2000 Problem
will have on their material suppliers and customers. Based
on such review, program and inquiries, the Borrower
reasonably believes that the "Year 2000 Problem" will not
have a Material Adverse Effect.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required
Lenders shall otherwise consent in writing:
Page 24
6.1. Financial Reporting. The Borrower will
maintain, for itself and each Subsidiary, a system of
accounting established and administered in accordance with
generally accepted accounting principles, and furnish to the
Lenders:
(i) Within 90 days after the close of each of its
fiscal years, an unqualified audit report certified
by Coopers & ▇▇▇▇▇▇▇ or other firm of independent
certified public accountants which is a member of
the "Big Four," prepared in accordance with GAAP on
a consolidated basis for itself and its
Subsidiaries, including balance sheets as of the
end of such period and related statements of
income, retained earnings and cash flows,
accompanied by (a) any management letter prepared
by said accountants, and (b) a certificate of said
accountants that, in the course of their
examination necessary for their audit report, they
have obtained no knowledge of any Default or
Unmatured Default, or if, in the opinion of such
accountants, any Default or Unmatured Default shall
exist, stating the nature and status thereof.
(ii) Within 45 days after the close of the first
three quarterly periods of each of its fiscal
years, for itself and its Subsidiaries, either (i)
consolidated and consolidating unaudited balance
sheets as at the close of each such period and
consolidated and consolidating profit and loss and
reconciliation of surplus statements and a
statement of cash flows for the period from the
beginning of such fiscal year to the end of such
quarter, all certified by its chief financial
officer or (ii) if the Borrower is then a
"registrant" within the meaning of Rule 1-01 of
Regulation S-X of the Securities and Exchange
Commission and required to file a report on Form 10-
Q with the Securities and Exchange Commission, a
copy of the Borrower's report on Form 10-Q for such
quarterly period.
(iii) Together with the financial statements
required under Sections 6.1(i) and (ii), a
compliance certificate in substantially the form of
Exhibit B signed by its chief accounting officer
stating that no Default or Unmatured Default
exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof.
(iv) As soon as possible and in any event within 10
days after the Borrower knows that any Reportable
Event has occurred with respect to any Plan, a
statement, signed by the chief financial officer of
the Borrower, describing said Reportable Event and
the action which the Borrower proposes to take with
respect thereto.
(v) Promptly upon the furnishing thereof to the
shareholders of the Borrower, copies of all
financial statements, reports and proxy statements
so furnished.
Page 25
(vi) Promptly upon the filing thereof, copies of
all registration statements and annual, quarterly,
monthly or other regular reports which the Borrower
files with the Securities and Exchange Commission.
(vii) Promptly upon the request of the
Administrative Agent or any Lender, such updated
information or documentation as may be requested
from time to time regarding the efforts of the
Borrower and its Significant Subsidiaries to
address the Year 2000 Problem.
(ix) Such other information (including
non-financial information) as the Administrative
Agent or any Lender may from time to time
reasonably request.
6.2. Use of Proceeds. The Borrower will use the
proceeds of the Advances to provide liquidity support for the
remarketing of the Borrower's $106,500,000 Environmental
Improvement Revenue Refunding Bonds (Kansas City Power &
Light Company Project) Series 1998-A and Series 1998-B
(collectively, the "Bonds"), and to repay outstanding
Advances. The Borrower will not use any of the proceeds of
the Advances to purchase or carry any "margin stock" (as
defined in Regulation U).
6.3. Notice of Default. The Borrower will, and
will cause each Subsidiary to, give prompt notice in writing
to the Lenders of the occurrence of any Default or Unmatured
Default and of any other development, financial or otherwise,
which could reasonably be expected to have a Material Adverse
Effect.
6.4. Conduct of Business. The Borrower will, and
will cause each Significant Subsidiary to, carry on and
conduct its business in substantially the same manner and in
substantially the same fields of enterprise as it is
presently conducted and do all things necessary to remain
duly incorporated or organized, validly existing and (to the
extent such concept applies to such entity) in good standing
as a domestic corporation, partnership or limited liability
company in its jurisdiction of incorporation or organization,
as the case may be, and maintain all requisite authority to
conduct its business in each jurisdiction in which its
business is conducted.
6.5. Taxes. The Borrower will, and will cause each
Significant Subsidiary to, timely file United States federal
and applicable foreign, state and local tax returns required
by law and pay when due all taxes, assessments and
governmental charges and levies upon it or its income,
profits or Property, except those which are being contested
in good faith by appropriate proceedings and with respect to
which adequate reserves have been set aside in accordance
with GAAP.
6.6. Insurance. The Borrower will, and will cause
each Significant Subsidiary to, maintain with financially
sound and reputable insurance companies insurance on all
their Property in such amounts and covering such risks as is
consistent with sound business
Page 26
practice, and the Borrower will furnish to any Lender upon
request full information as to the insurance carried.
6.7. Compliance with Laws. The Borrower will, and
will cause each Significant Subsidiary to, comply with all
laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject
including, without limitation, all Environmental Laws.
6.8. Maintenance of Properties. The Borrower will,
and will cause each Significant Subsidiary to, do all things
necessary to maintain, preserve, protect and keep its
Property in good repair, working order and condition, and
make all necessary and proper repairs, renewals and
replacements so that its business carried on in connection
therewith may be properly conducted at all times.
6.9. Inspection. The Borrower will, and will cause
each Subsidiary to, permit the Administrative Agent and the
Lenders, by their respective representatives and agents, to
inspect any of the Property, books and financial records of
the Borrower and each Subsidiary, to examine and make copies
of the books of accounts and other financial records of the
Borrower and each Subsidiary, and to discuss the affairs,
finances and accounts of the Borrower and each Subsidiary
with, and to be advised as to the same by, their respective
officers at such reasonable times and intervals as the
Administrative Agent or any Lender may designate. After the
occurrence and during the continuance of a Default, any such
inspection shall be at the Borrower's expense; at all other
times, the Borrower shall not be liable to pay the expenses
of the Administrative Agent or any Lender in connection with
such inspections.
6.10. Consolidations, Mergers and Sale of Assets.
The Borrower will not, nor will it permit any Significant
Subsidiary to, sell, lease, transfer, or otherwise dispose of
all or substantially all of its assets (whether by a single
transaction or a number of related transactions and whether
at one time or over a period of time) or consolidate with or
merge into any Person or permit any Person to merge into it,
except
(i) A Wholly-Owned Subsidiary may be merged into
the Borrower.
(ii) The Borrower may sell all or substantially all
of its assets to, or consolidate with or merge
into, any other corporation, or permit another
corporation to merge into it; provided, however,
that (a) the surviving corporation, if such
surviving corporation is not the Borrower, or the
transferee corporation in the case of a sale of all
or substantially all of the Borrower's assets (1)
shall be a corporation organized and existing under
the laws of the United States of America or a state
thereof or the District of Columbia, and (2) shall
expressly assume in writing the due and punctual
payment of the Obligations and the due and punctual
performance of and compliance with all of the terms
of this Credit Agreement and the other Loan
Documents to be performed or complied
Page 27
with by the Borrower, (b) immediately before and
after such merger, consolidation or sale, there
shall not exist any Default or Unmatured Default and
(c) the surviving corporation of such merger or
consolidation, or the transferee corporation of the
assets of the Borrower, as applicable, has, both
immediately before and after such merger,
consolidation or sale, a ▇▇▇▇▇'▇ Rating of Baa3 or
better or an S&P Rating of BBB - or better.
(iii) The Western Merger Transactions;
provided, however, that (a) the surviving
corporation of any merger or consolidation
involving the Borrower that is contemplated by the
Western Merger Transactions, if such surviving
corporation is not the Borrower, or the transferee
corporation in the case of a sale of all or
substantially all of the Borrower's assets (1)
shall be a corporation organized and existing under
the laws of the United States of America or a state
thereof or the District of Columbia, and (2) shall
expressly assume in writing the due and punctual
payment of the Obligations and the due and punctual
performance of and compliance with all of the terms
of this Credit Agreement and the other Loan
Documents to be performed or complied with by the
Borrower, (b) immediately before and after such
merger, consolidation or sale, there shall not
exist any Default or Unmatured Default and (c) the
surviving corporation of such merger or
consolidation, or the transferee corporation of
such assists of the Borrower, as applicable, has,
both immediately before and after giving effect to
such merger, consolidation or sale, a ▇▇▇▇▇'▇
Rating of Baa3 or better or an S&P Rating of BBB -
or better.
6.11. Liens. The Borrower will not, nor will it
permit any Significant Subsidiary to, create, incur, or
suffer to exist any Lien in, of or on the Property of the
Borrower or any of its Significant Subsidiaries, except:
(i) Liens for taxes, assessments or governmental
charges or levies on its Property if the same shall
not at the time be delinquent or thereafter can be
paid without penalty, or are being contested in
good faith and by appropriate proceedings and for
which adequate reserves in accordance with GAAP
shall have been set aside on its books.
(ii) Liens imposed by law, such as carriers',
warehousemen's and mechanics' liens and other
similar liens arising in the ordinary course of
business which secure payment of obligations not
more than 60 days past due or which are being
contested in good faith by appropriate proceedings
and for which adequate reserves shall have been set
aside on its books.
(iii) Liens arising out of pledges or deposits
under worker's compensation laws, unemployment
insurance, old age pensions, or other social
security or retirement benefits, or similar
legislation.
Page 28
(iv) Utility easements, building restrictions and
such other encumbrances or charges against real
property as are of a nature generally existing with
respect to properties of a similar character and
which do not in any material way affect the
marketability of the same or interfere with the use
thereof in the business of the Borrower or its
Subsidiaries.
(v) The Lien of the General Mortgage Indenture and
Deed of Trust dated December 1, 1986, from the
Borrower to UMB, N.A.
(vi) Liens existing on the date hereof and
described in Schedule 1.
(vii) Judgment Liens which secure payment of
legal obligations that would not constitute a
Default under Section 7.9.
(viii) Liens on Property acquired by the
Borrower or a Significant Subsidiary after the date
hereof, existing on such Property at the time of
acquisition thereof (and not created in
anticipation thereof), provided that in any such
case no such Lien shall extend to or cover any
other Property of the Borrower or such Significant
Subsidiary, as the case may be.
(ix) Deposits to secure the performance of bids,
trade contracts (other than for borrowed money),
leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of
business by the Borrower or any Significant
Subsidiary.
(x) Liens which would otherwise not be permitted
by clauses (i) through (ix) securing additional
Indebtedness of the Borrower or a Significant
Subsidiary, provided that after giving effect
thereto the aggregate unpaid principal amount of
Indebtedness (including, without limitation,
Capitalized Lease Obligations) of the Borrower and
its Significant Subsidiaries (including prepayment
premiums and penalties) secured by such Liens
permitted by this clause (x) shall not exceed
$50,000,000.
6.12. Affiliates. The Borrower will not, and will not
permit any Subsidiary to, enter into any transaction
(including, without limitation, the purchase or sale of any
Property or service) with, or make any payment or transfer
to, any Affiliate except in the ordinary course of business
and pursuant to the reasonable requirements of the Borrower's
or such Subsidiary's business and upon fair and reasonable
terms no less favorable to the Borrower or such Subsidiary
than the Borrower or such Subsidiary would obtain in a
comparable arms-length transaction.
Page 29
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following
events shall constitute a Default:
7.1. Any representation or warranty made or deemed
made by or on behalf of the Borrower to the Lenders or the
Administrative Agent under or in connection with this
Agreement, any Loan, or any certificate or information
delivered in connection with this Agreement or any other Loan
Document shall be materially false on the date as of which
made.
7.2. Nonpayment of principal of any Loan when due,
or nonpayment of interest upon any Loan or of any commitment
fee or other obligations under any of the Loan Documents
within five days after the same becomes due.
7.3. The breach by the Borrower of any of the terms
or provisions of Section 6.2, 6.10, 6.11 or 6.12.
7.4. The breach by the Borrower (other than a
breach which constitutes a Default under another Section of
this Article VII) of any of the terms or provisions of this
Agreement which is not remedied within five days after
written notice from the Administrative Agent or any Lender.
7.5. Failure of the Borrower or any of its
Significant Subsidiaries to pay when due any Indebtedness
aggregating in excess of $15,000,000 ("Material
Indebtedness"); or the default by the Borrower or any of its
Significant Subsidiaries in the performance of any term,
provision or condition contained in any agreement under which
any such Material Indebtedness was created or is governed, or
any other event shall occur or condition exist, the effect of
which default or event is to cause, or to permit the holder
or holders of such Material Indebtedness to cause, such
Material Indebtedness to become due prior to its stated
maturity; or any Material Indebtedness of the Borrower or any
of its Significant Subsidiaries shall be declared to be due
and payable or required to be prepaid or repurchased (other
than by a regularly scheduled payment) prior to the stated
maturity thereof; or the Borrower or any of its Subsidiaries
shall not pay, or admit in writing its inability to pay, its
debts generally as they become due.
7.6. The Borrower or any of its Significant
Subsidiaries shall (i) have an order for relief entered with
respect to it under the Federal bankruptcy laws as now or
hereafter in effect, (ii) make an assignment for the benefit
of creditors, (iii) apply for, seek, consent to, or acquiesce
in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any
Substantial Portion of its Property, (iv) institute any
proceeding seeking an order for relief under the Federal
bankruptcy laws as now or hereafter in effect or
Page 30
seeking to adjudicate it a bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization,
arrangement, adjustment or composition of it or its debts
under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer
or other pleading denying the material allegations of any
such proceeding filed against it, (v) take any corporate or
partnership action to authorize or effect any of the
foregoing actions set forth in this Section 7.6 or (vi) fail
to contest in good faith any appointment or proceeding
described in Section 7.7.
7.7. Without the application, approval or consent
of the Borrower or any of its Subsidiaries, a receiver,
trustee, examiner, liquidator or similar official shall be
appointed for the Borrower or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding
described in Section 7.6(iv) shall be instituted against the
Borrower or any of its Subsidiaries and such appointment
continues undischarged or such proceeding continues
undismissed or unstayed for a period of 30 consecutive days.
7.8. Any court, government or governmental agency
shall condemn, seize or otherwise appropriate, or take
custody or control of, all or any portion of the Property of
the Borrower and its Subsidiaries which, when taken together
with all other Property of the Borrower and its Subsidiaries
so condemned, seized, appropriated, or taken custody or
control of, during the twelve-month period ending with the
month in which any such action occurs, constitutes a
Substantial Portion.
7.9. The Borrower or any of its Significant
Subsidiaries shall fail within 30 days to pay, bond or
otherwise discharge any judgment or order for the payment of
money in excess of $15,000,000 (either singly or in the
aggregate with other such judgments), which is not stayed on
appeal or otherwise being appropriately contested in good
faith.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in
Section 7.6 or 7.7 occurs with respect to the Borrower, the
obligations of the Lenders to make Loans hereunder shall
automatically terminate and the Obligations shall immediately
become due and payable without any election or action on the
part of the Administrative Agent or any Lender. If any other
Default occurs, the Required Lenders (or the Administrative
Agent with the consent of the Required Lenders) may terminate
or suspend the obligations of the Lenders to make Loans
hereunder, or declare the Obligations to be due and payable,
or both, whereupon the Obligations shall become immediately
due and payable, without presentment, demand, protest or
notice of any kind, all of which the Borrower hereby
expressly waives.
Page 31
If, within 30 days after acceleration of the maturity of
the Obligations or termination of the obligations of the
Lenders to make Loans hereunder as a result of any Default
(other than any Default as described in Section 7.6 or 7.7
with respect to the Borrower) and before any judgment or
decree for the payment of the Obligations due shall have been
obtained or entered, the Required Lenders (in their sole
discretion) shall so direct, the Administrative Agent shall,
by notice to the Borrower, rescind and annul such
acceleration and/or termination.
8.2. Amendments. Subject to the provisions of this
Article VIII, the Required Lenders (or the Administrative
Agent with the consent in writing of the Required Lenders)
and the Borrower may enter into agreements supplemental
hereto for the purpose of adding or modifying any provisions
to the Loan Documents or changing in any manner the rights of
the Lenders or the Borrower hereunder or waiving any Default
hereunder; provided, however, that no such supplemental
agreement shall, without the consent of all of the Lenders:
(i) Extend the final maturity of any Loan or
forgive all or any portion of the principal amount
thereof, or reduce the rate or extend the time of
payment of interest or fees thereon.
(ii) Reduce the percentage specified in the
definition of Required Lenders.
(iii) Extend the Facility Termination Date, or
reduce the amount or extend the payment date for,
the mandatory payments required under Section 2.2,
or increase the amount of the Commitment of any
Lender hereunder, or permit the Borrower to assign
its rights under this Agreement.
(iv) Amend this Section 8.2.
No amendment of any provision of this Agreement relating to
the Administrative Agent shall be effective without the
written consent of the Administrative Agent. The
Administrative Agent may waive payment of the fee required
under Section 12.3.2 without obtaining the consent of any
other party to this Agreement.
8.3. Preservation of Rights. No delay or omission
of the Lenders or the Administrative Agent to exercise any
right under the Loan Documents shall impair such right or be
construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan notwithstanding the
existence of a Default or the inability of the Borrower to
satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial
exercise of any such right shall not preclude other or
further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever
shall be valid unless in writing signed by the Lenders
required pursuant to Section 8.2, and then only to the extent
in such writing specifically set forth. All remedies
contained in the Loan Documents or by law
Page 32
afforded shall be cumulative and all shall be available to the
Administrative Agent and the Lenders until the Obligations have
been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All
representations and warranties of the Borrower contained in
this Agreement shall survive the making of the Loans herein
contemplated.
9.2. Governmental Regulation. Anything contained
in this Agreement to the contrary notwithstanding, no Lender
shall be obligated to extend credit to the Borrower in
violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3. Headings. Section headings in the Loan
Documents are for convenience of reference only, and shall
not govern the interpretation of any of the provisions of the
Loan Documents.
9.4. Entire Agreement. The Loan Documents embody
the entire agreement and understanding among the Borrower,
the Administrative Agent and the Lenders and supersede all
prior agreements and understandings among the Borrower, the
Administrative Agent and the Lenders relating to the subject
matter thereof other than the fee letter described in Section
10.13.
9.5. Several Obligations; Benefits of this
Agreement. The respective obligations of the Lenders
hereunder are several and not joint and no Lender shall be
the partner or agent of any other (except to the extent to
which the Administrative Agent is authorized to act as such).
The failure of any Lender to perform any of its obligations
hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed
so as to confer any right or benefit upon any Person other
than the parties to this Agreement and their respective
successors and assigns, provided, however, that the parties
hereto expressly agree that the Arranger shall enjoy the
benefits of the provisions of Sections 9.6, 9.10 and 10.11 to
the extent specifically set forth therein and shall have the
right to enforce such provisions on its own behalf and in its
own name to the same extent as if it were a party to this
Agreement.
9.6. Expenses; Indemnification. (i) The Borrower
shall reimburse the Administrative Agent and the Arranger for
any reasonable costs, internal charges and out-of-pocket
expenses (including attorneys' fees and time charges of
attorneys for the Administrative Agent, which attorneys may
be employees of the Administrative Agent) paid or incurred by
the Administrative Agent or the Arranger in connection with
the preparation,
Page 33
negotiation, execution, delivery, syndication, review, amendment,
modification, and administration of the Loan Documents. The
Borrower also agrees to reimburse the Administrative Agent, the
Arranger and the Lenders for any costs, internal charges and
out-of-pocket expenses (including attorneys' fees and time
charges of attorneys for the Administrative Agent, the
Arranger and the Lenders, which attorneys may be employees of
the Administrative Agent, the Arranger or the Lenders) paid
or incurred by the Administrative Agent, the Arranger or any
Lender in connection with the collection and enforcement of
the Loan Documents.
(ii) The Borrower hereby further agrees to indemnify
the Administrative Agent, the Arranger and each Lender, its
directors, officers and employees against all losses, claims,
damages, penalties, judgments, liabilities and expenses
(including, without limitation, all expenses of litigation or
preparation therefor whether or not the Administrative Agent,
the Arranger or any Lender is a party thereto) which any of
them may pay or incur arising out of or relating to this
Agreement, the other Loan Documents, the transactions
contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Loan hereunder
except to the extent that they are determined in a final non-
appealable judgment by a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct
of the party seeking indemnification. The obligations of
the Borrower under this Section 9.6 shall survive the payment
of the Obligations and termination of this Agreement.
9.7. Numbers of Documents. All statements,
notices, closing documents, and requests hereunder shall be
furnished to the Administrative Agent with sufficient
counterparts so that the Administrative Agent may furnish one
to each of the Lenders.
9.8. Accounting. Except as provided to the
contrary herein, all accounting terms used herein shall be
interpreted and all accounting determinations hereunder shall
be made in accordance with GAAP.
9.9. Severability of Provisions. Any provision in any
Loan Document that is held to be inoperative, unenforceable,
or invalid in any jurisdiction shall, as to that
jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity of
that provision in any other jurisdiction, and to this end the
provisions of all Loan Documents are declared to be
severable.
9.10. Nonliability of Lenders. The relationship
between the Borrower on the one hand and the Lenders and the
Administrative Agent on the other hand shall be solely that
of borrower and lender. Neither the Administrative Agent,
the Arranger nor any Lender shall have any fiduciary
responsibilities to the Borrower. Neither the Administrative
Agent, the Arranger nor any Lender undertakes any
responsibility to the Borrower to review or inform the
Borrower of any matter in connection with any phase of the
Borrower's business or operations. The Borrower agrees that
neither the Administrative Agent, the Arranger nor
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any Lender shall have liability to the Borrower (whether sounding
in tort, contract or otherwise) for losses suffered by the
Borrower in connection with, arising out of, or in any way
related to, the transactions contemplated and the
relationship established by the Loan Documents, or any act,
omission or event occurring in connection therewith, unless
it is determined in a final non-appealable judgment by a
court of competent jurisdiction that such losses resulted
from the gross negligence or willful misconduct of the party
from which recovery is sought. Neither the Administrative
Agent, the Arranger nor any Lender shall have any liability
with respect to, and the Borrower hereby waives, releases and
agrees not to ▇▇▇ for, any special, indirect or consequential
damages suffered by the Borrower in connection with, arising
out of, or in any way related to the Loan Documents or the
transactions contemplated thereby.
9.11. Confidentiality. Each Lender agrees to hold
any confidential information which it may receive from the
Borrower pursuant to this Agreement in confidence, except for
disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, (ii) to legal counsel,
accountants, and other professional advisors to that Lender
or to a Transferee, (iii) to regulatory officials, (iv) to
any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection
with any legal proceeding to which that Lender is a party and
(vi) permitted by Section 12.4.
9.12. Nonreliance. Each Lender hereby represents
that it is not relying on or looking to any margin stock (as
defined in Regulation U of the Board of Governors of the
Federal Reserve System) for the repayment of the Loans
provided for herein.
ARTICLE X
THE AGENTS
10.1. Appointment; Nature of Relationship. The
First National Bank of Chicago is hereby appointed by each of
the Lenders as its contractual representative (herein
referred to as the "Administrative Agent") hereunder and
under each other Loan Document, and each of the Lenders
irrevocably authorizes the Administrative Agent to act as the
contractual representative of such Lender with the rights and
duties expressly set forth herein and in the other Loan
Documents. The Administrative Agent agrees to act as such
contractual representative upon the express conditions
contained in this Article X. Notwithstanding the use of the
defined term "Administrative Agent," it is expressly
understood and agreed that the Administrative Agent shall not
have any fiduciary responsibilities to any Lender by reason
of this Agreement or any other Loan Document and that the
Administrative Agent is merely acting as the contractual
representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan
Documents. In its capacity as the Lenders' contractual
representative, the Administrative Agent (i) does not hereby
assume any
Page 35
fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of Section
9-105 of the Uniform Commercial Code and (iii) is acting as
an independent contractor, the rights and duties of which are
limited to those expressly set forth in this Agreement and
the other Loan Documents. Each of the Lenders hereby agrees
to assert no claim against the Administrative Agent on any
agency theory or any other theory of liability for breach of
fiduciary duty, all of which claims each Lender hereby
waives. Each Lender hereby appoints NationsBank, N.A. as
Documentation Agent for the Lenders. The Documentation
Agent, in its capacity as such, shall have no rights, duties
or responsibilities hereunder or under any other Loan
Document.
10.2. Powers. The Administrative Agent shall have
and may exercise such powers under the Loan Documents as are
specifically delegated to the Administrative Agent by the
terms of each thereof, together with such powers as are
reasonably incidental thereto. The Administrative Agent
shall have no implied duties to the Lenders, or any
obligation to the Lenders to take any action thereunder
except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent.
10.3. General Immunity. Neither the Administrative
Agent nor any of its directors, officers, agents or employees
shall be liable to the Borrower, the Lenders or any Lender
for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection
herewith or therewith except to the extent such action or
inaction is determined in a final non-appealable judgment by
a court of competent jurisdiction to have arisen from the
gross negligence or willful misconduct of such Person.
10.4. No Responsibility for Loans, Recitals, etc.
Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (a) any
statement, warranty or representation made in connection with
any Loan Document or any borrowing hereunder; (b) the
performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including,
without limitation, any agreement by an obligor to furnish
information directly to each Lender; (c) the satisfaction of
any condition specified in Article IV, except receipt of
items required to be delivered solely to the Administrative
Agent; (d) the existence or possible existence of any Default
or Unmatured Default; (e) the validity, enforceability,
effectiveness, sufficiency or genuineness of any Loan
Document or any other instrument or writing furnished in
connection therewith; (f) the value, sufficiency, creation,
perfection or priority of any Lien in any collateral
security; or (g) the financial condition of the Borrower or
any guarantor of any of the Obligations or of any of the
Borrower's or any such guarantor's respective Subsidiaries.
The Administrative Agent shall have no duty to disclose to
the Lenders information that is not required to be furnished
by the Borrower to the Administrative Agent at such time, but
is voluntarily furnished by the Borrower to the
Administrative Agent (either in its capacity as
Administrative Agent or in its individual capacity).
Page 36
10.5. Action on Instructions of Lenders. The
Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions
signed by the Required Lenders, and such instructions and any
action taken or failure to act pursuant thereto shall be
binding on all of the Lenders. The Lenders hereby
acknowledge that the Administrative Agent shall be under no
duty to take any discretionary action permitted to be taken
by it pursuant to the provisions of this Agreement or any
other Loan Document unless it shall be requested in writing
to do so by the Required Lenders. The Administrative Agent
shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it
shall first be indemnified to its satisfaction by the Lenders
pro rata against any and all liability, cost and expense that
it may incur by reason of taking or continuing to take any
such action.
10.6. Employment of Administrative Agents and
Counsel. The Administrative Agent may execute any of its
duties as Administrative Agent hereunder and under any other
Loan Document by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders,
except as to money or securities received by it or its
authorized agents, for the default or misconduct of any such
agents or attorneys-in-fact selected by it with reasonable
care. The Administrative Agent shall be entitled to advice
of counsel concerning the contractual arrangement between the
Administrative Agent and the Lenders and all matters
pertaining to the Administrative Agent's duties hereunder and
under any other Loan Document.
10.7. Reliance on Documents; Counsel. The
Administrative Agent shall be entitled to rely upon any Note,
notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and
correct and to have been signed or sent by the proper person
or persons, and, in respect to legal matters, upon the
opinion of counsel selected by the Administrative Agent,
which counsel may be employees of the Administrative Agent.
10.8. Administrative Agent's Reimbursement and
Indemnification. The Lenders agree to reimburse and
indemnify the Administrative Agent ratably in proportion to
their respective Commitments (or, if the Commitments have
been terminated, in proportion to their Commitments
immediately prior to such termination) (i) for any amounts
not reimbursed by the Borrower for which the Administrative
Agent is entitled to reimbursement by the Borrower under the
Loan Documents, (ii) for any other expenses incurred by the
Administrative Agent on behalf of the Lenders, in connection
with the preparation, execution, delivery, administration and
enforcement of the Loan Documents (including, without
limitation, for any expenses incurred by the Administrative
Agent in connection with any dispute between the
Administrative Agent and any Lender or between two or more of
the Lenders) and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever
which may be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of
the Loan Documents or any other document delivered in
Page 37
connection therewith or the transactions contemplated thereby
(including, without limitation, for any such amounts incurred
by or asserted against the Administrative Agent in connection
with any dispute between the Administrative Agent and any
Lender or between two or more of the Lenders), or the
enforcement of any of the terms of the Loan Documents or of
any such other documents, provided that no Lender shall be
liable for any of the foregoing to the extent any of the
foregoing is found in a final non-appealable judgment by a
court of competent jurisdiction to have resulted from the
gross negligence or willful misconduct of the Administrative
Agent. The obligations of the Lenders under this Section
10.8 shall survive payment of the Obligations and termination
of this Agreement.
10.9. Notice of Default. The Administrative Agent
shall not be deemed to have knowledge or notice of the
occurrence of any Default or Unmatured Default hereunder
unless the Administrative Agent has received written notice
from a Lender or the Borrower referring to this Agreement
describing such Default or Unmatured Default and stating that
such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the
Administrative Agent shall give prompt notice thereof to the
Lenders.
10.10. Rights as a Lender. In the event the
Administrative Agent is a Lender, the Administrative Agent
shall have the same rights and powers hereunder and under any
other Loan Document with respect to its Commitment and its
Loans as any Lender and may exercise the same as though it
were not the Administrative Agent, and the term "Lender" or
"Lenders" shall, at any time when the Administrative Agent is
a Lender, unless the context otherwise indicates, include the
Administrative Agent in its individual capacity. The
Administrative Agent and its Affiliates may accept deposits
from, lend money to, and generally engage in any kind of
trust, debt, equity or other transaction, in addition to
those contemplated by this Agreement or any other Loan
Document, with the Borrower or any of its Subsidiaries in
which the Borrower or such Subsidiary is not restricted
hereby from engaging with any other Person.
10.11. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance
upon the Administrative Agent, the Arranger or any other
Lender and based on the financial statements prepared by the
Borrower and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision
to enter into this Agreement and the other Loan Documents.
Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent, the Arranger
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 this Agreement and the other Loan
Documents.
10.12. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower, such
resignation to be effective upon the appointment of a
successor Administrative Agent or, if no successor
Administrative Agent has been appointed, forty-five days
after the retiring Administrative Agent gives notice of its
intention to resign. The Administrative Agent may be removed at
Page 38
any time with or without cause by written notice received
by the Administrative Agent from the Required Lenders, such
removal to be effective on the date specified by the Required
Lenders. Upon any such resignation or removal, the Required
Lenders shall have the right to appoint, on behalf of the
Borrower and the Lenders, a successor Administrative Agent.
If no successor Administrative Agent shall have been so
appointed by the Required Lenders within thirty days after
the resigning Administrative Agent's giving notice of its
intention to resign, then the resigning Administrative Agent
may appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent. Notwithstanding the previous
sentence, the Administrative Agent may at any time without
the consent of the Borrower or any Lender, appoint any of its
Affiliates which is a commercial bank as a successor
Administrative Agent hereunder. If the Administrative Agent
has resigned or been removed and no successor Administrative
Agent has been appointed, the Lenders may perform all the
duties of the Administrative Agent hereunder and the Borrower
shall make all payments in respect of the Obligations to the
applicable Lender and for all other purposes shall deal
directly with the Lenders. No successor Administrative Agent
shall be deemed to be appointed hereunder until such
successor Administrative Agent has accepted the appointment.
Any such successor Administrative Agent shall be a commercial
bank having capital and retained earnings of at least
$100,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers,
privileges and duties of the resigning or removed
Administrative Agent. Upon the effectiveness of the
resignation or removal of the Administrative Agent, the
resigning or removed Administrative Agent shall be discharged
from its duties and obligations hereunder and under the Loan
Documents. After the effectiveness of the resignation or
removal of an Administrative Agent, the provisions of this
Article X shall continue in effect for the benefit of such
Administrative Agent in respect of any actions taken or
omitted to be taken by it while it was acting as the
Administrative Agent hereunder and under the other Loan
Documents. In the event that there is a successor to the
Administrative Agent by merger, or the Administrative Agent
assigns its duties and obligations to an Affiliate pursuant
to this Section 10.12, then the term "Corporate Base Rate" as
used in this Agreement shall mean the prime rate, base rate
or other analogous rate of the new Administrative Agent.
10.13. Administrative Agent's Fee. The Borrower agrees
to pay to the Administrative Agent, for its own account, the
fees agreed to by the Borrower and the Administrative Agent
pursuant to that certain letter agreement dated July 3, 1998,
or as otherwise agreed from time to time.
10.14. Delegation to Affiliates. The Borrower and the
Lenders agree that the Administrative Agent may delegate any
of its duties under this Agreement to any of its Affiliates.
Any such Affiliate (and such Affiliate's directors, officers,
agents and employees) which performs duties in connection
with this Agreement shall be entitled to the same benefits of
the indemnification, waiver and other protective provisions
to which the Administrative Agent is entitled under Articles
IX and X.
Page 39
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without
limitation of, any rights of the Lenders under applicable
law, if the Borrower becomes insolvent, however evidenced, or
any Default occurs, any and all deposits (including all
account balances, whether provisional or final and whether or
not collected or available) and any other Indebtedness at any
time held or owing by any Lender or any Affiliate of any
Lender to or for the credit or account of the Borrower may be
offset and applied toward the payment of the Obligations
owing to such Lender, whether or not the Obligations, or any
part hereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by
setoff or otherwise, has payment made to it upon its Loans
(other than payments received pursuant to Section 3.1, 3.2,
3.4 or 3.5) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Loans held by the other Lenders so
that after such purchase each Lender will hold its ratable
proportion of Loans. If any Lender, whether in connection
with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its
Obligations or such amounts which may be subject to setoff,
such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their Loans. In case any
such payment is disturbed by legal process, or otherwise,
appropriate further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and
provisions of the Loan Documents shall be binding upon and
inure to the benefit of the Borrower and the Lenders and
their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or
obligations under the Loan Documents and (ii) any assignment
by any Lender must be made in compliance with Section 12.3.
Notwithstanding clause (ii) of this Section, any Lender may
at any time, without the consent of the Borrower or the
Administrative Agent, assign all or any portion of its rights
under this Agreement and any Note to a Federal Reserve Bank;
provided, however, that no such assignment to a Federal
Reserve Bank shall release the transferor Lender from its
obligations hereunder. The Administrative Agent may treat
the Person which made any Loan or which holds any Note as the
owner thereof for all purposes hereof unless and until such
Person complies with Section 12.3 in the case of an
assignment thereof or, in the case of any other transfer, a
written notice of the transfer is filed with the
Administrative Agent. Any assignee or transferee of
Page 40
the rights to any Loan or any Note agrees by acceptance of such
transfer or assignment to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or
consent of any Person, who at the time of making such request
or giving such authority or consent is the owner of the
rights to any Loan (whether or not a Note has been issued in
evidence thereof), shall be conclusive and binding on any
subsequent holder, transferee or assignee of the rights to
such Loan.
12.2. Participations.
12.2.1. Permitted Participants; Effect. Any
Lender may, in the ordinary course of its business and
in accordance with applicable law, at any time sell to
one or more banks or other entities ("Participants")
participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Commitment of
such Lender or any other interest of such Lender under
the Loan Documents. In the event of any such sale by a
Lender of participating interests to a Participant, such
Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the
performance of such obligations, such Lender shall
remain the owner of its Loans and the holder of any Note
issued to it in evidence thereof for all purposes under
the Loan Documents, all amounts payable by the Borrower
under this Agreement shall be determined as if such
Lender had not sold such participating interests, and
the Borrower and the Administrative Agent shall continue
to deal solely and directly with such Lender in
connection with such Lender's rights and obligations
under the Loan Documents.
12.2.2. Voting Rights. Each Lender shall retain
the sole right to approve, without the consent of any
Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any
amendment, modification or waiver with respect to any
Loan or Commitment in which such Participant has an
interest which forgives principal, interest or fees or
reduces the interest rate or fees payable with respect
to any such Loan or Commitment, extends the Facility
Termination Date or postpones any date fixed for any
regularly-scheduled payment of principal of, or interest
or fees on, any such Loan or Commitment.
12.2.3. Benefit of Setoff. The Borrower agrees
that each Participant shall be deemed to have the right
of setoff provided in Section 11.1 in respect of its
participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its
participating interest were owing directly to it as a
Lender under the Loan Documents, provided that each
Lender shall retain the right of setoff provided in
Section 11.1 with respect to the amount of participating
interests sold to each Participant. The Lenders agree
to share with each Participant, and each Participant, by
exercising the right of setoff provided in Section 11.1,
agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such
amounts to be shared in accordance with Section 11.2 as
if each Participant were a Lender.
Page 41
12.3. Assignments.
12.3.1. Permitted Assignments. Any Lender may, in
the ordinary course of its business and in accordance
with applicable law, at any time assign to one or more
banks or other entities ("Purchasers") all or any part
of its rights and obligations under the Loan Documents.
Such assignment shall be substantially in the form of
Exhibit C or in such other form as may be agreed to by
the parties thereto. The consent of the Borrower and
the Administrative Agent shall be required prior to an
assignment becoming effective with respect to a
Purchaser which is not a Lender or an Affiliate thereof;
provided, however, that if a Default has occurred and is
continuing, the consent of the Borrower shall not be
required. Such consent shall not be unreasonably
withheld or delayed. Each such assignment shall (unless
each of the Borrower and the Administrative Agent
otherwise consents) be in an amount not less than the
lesser of (i) $10,000,000 or (ii) the remaining amount
of the assigning Lender's Commitment (calculated as at
the date of such assignment).
12.3.2. Effect; Effective Date. Upon (i) delivery
to the Administrative Agent of a notice of assignment,
substantially in the form attached as Exhibit I to
Exhibit C (a "Notice of Assignment"), together with any
consents required by Section 12.3.1, and (ii) payment of
a $3,000 fee to the Administrative Agent for processing
such assignment, such assignment shall become effective
on the effective date specified in such Notice of
Assignment. The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none
of the consideration used to make the purchase of the
Commitment and Loans under the applicable assignment
agreement are "plan assets" as defined under ERISA and
that the rights and interests of the Purchaser in and
under the Loan Documents will not be "plan assets" under
ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a
Lender party to this Agreement and any other Loan
Document executed by or on behalf of the Lenders and
shall have all the rights and obligations of a Lender
under the Loan Documents, to the same extent as if it
were an original party hereto, and no further consent or
action by the Borrower, the Lenders or the
Administrative Agent shall be required to release the
transferor Lender with respect to the percentage of the
Aggregate Commitment and Loans assigned to such
Purchaser. Upon the consummation of any assignment to a
Purchaser pursuant to this Section 12.3.2, the
transferor Lender, the Administrative Agent and the
Borrower shall, if the transferor Lender or the
Purchaser desires that its Loans be evidenced by Notes,
make appropriate arrangements so that new Notes or, as
appropriate, replacement Notes are issued to such
transferor Lender and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each
case in principal amounts reflecting their respective
Commitments, as adjusted pursuant to such assignment.
12.3.3. Substitution of Lenders. In the event any
Lender's long term unsecured debt rating falls below Aa3
from ▇▇▇▇▇'▇ or AA- from S&P, the Borrower may designate
another financial institution which is acceptable to the
Administrative
Page 42
Agent in its sole discretion, to purchase, pursuant to
this Section 12.3, the Loans and Commitment of such
Lender and such Lender's rights hereunder, without
recourse to or warranty by, or expense to, such Lender
for a purchase price equal to the outstanding principal amount
of the Loans payable to such Lender plus any accrued but
unpaid interest on such Loans and accrued but unpaid
commitment fees and any other amounts payable to
such Lender under this Agreement, and to assume all the
obligations of such Lender hereunder.
12.4. Dissemination of Information. The Borrower
authorizes each Lender to disclose to any Participant or
Purchaser or any other Person acquiring an interest in the
Loan Documents by operation of law (each a "Transferee") and
any prospective Transferee any and all information in such
Lender's possession concerning the creditworthiness of the
Borrower and its Subsidiaries; provided that each Transferee
and prospective Transferee agrees to be bound by Section 9.11
of this Agreement.
12.5. Tax Treatment. If any interest in any Loan
Document is transferred to any Transferee which is organized
under the laws of any jurisdiction other than the United
States or any State thereof, the transferor Lender shall
cause such Transferee, concurrently with the effectiveness of
such transfer, to comply with the provisions of Section
3.5(iv).
ARTICLE XIII
NOTICES
13.1. Notices. Except as otherwise permitted by
Section 2.13 with respect to borrowing notices, all notices,
requests and other communications to any party hereunder
shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given
to such party: (x) in the case of the Borrower or the
Administrative Agent, at its address or facsimile number set
forth on the signature pages hereof, (y) in the case of any
Lender, at its address or facsimile number set forth below
its signature hereto or (z) in the case of any party, at such
other address or facsimile number as such party may hereafter
specify for the purpose by notice to the Administrative Agent
and the Borrower in accordance with the provisions of this
Section 13.1. Each such notice, request or other
communication shall be effective (i) if given by facsimile
transmission, when transmitted to the facsimile number
specified in this Section and confirmation of receipt is
received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (iii) if given by
any other means, when delivered (or, in the case of
electronic transmission, received) at the address specified
in this Section; provided that notices to the Administrative
Agent under Article II shall not be effective until received.
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13.2. Change of Address. The Borrower, the
Administrative Agent and any Lender may each change the
address for service of notice upon it by a notice in writing
to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute
one agreement, and any of the parties hereto may execute this
Agreement by signing any such counterpart. This Agreement
shall be effective when it has been executed by the Borrower,
the Administrative Agent and the Lenders and each party has
notified the Administrative Agent by facsimile transmission
or telephone that it has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN
THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION)
SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND
NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY
UNITED STATES FEDERAL OR ILLINOIS STATE COURT SITTING IN
CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION
OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT
AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT
FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR
ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE
COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
THE BORROWER AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE
OF THE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY,
ANY MATTER IN
Page 44
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY
LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO,
ILLINOIS.
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT
AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
Page 45
IN WITNESS WHEREOF, the Borrower, the Lenders and the
Administrative Agent have executed this Agreement as of the
date first above written.
KANSAS CITY POWER & LIGHT COMPANY
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Commitments
-----------
$22,000,000 THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Administrative Agent
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
$22,000,000 NATIONSBANK, N.A.,
Individually and as Documentation Agent
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
$18,000,000 ABN AMRO BANK, N.V.
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇
Title: Assistant Vice President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
$18,000,000 ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ OFFICE
By: /s/F. C. H. ▇▇▇▇▇
Title: Senior Manager Loan Operations
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
$15,000,000 THE BANK OF NEW YORK
By: /s/▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
$15,000,000 WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: /s/▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Associate
▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇ ▇▇▇-▇▇▇▇
$110,000,000
============