CONFORMED COPY
$450,000,000
REVOLVING CREDIT AGREEMENT
dated as of October 7, 1997
among
PECO ENERGY COMPANY
as Borrower
THE BANKS NAMED HEREIN
as Banks
CERTAIN BANKS SPECIFIED HEREIN
as Lead Managers
CERTAIN BANKS SPECIFIED HEREIN
as Co-Agents
FIRST CHICAGO CAPITAL MARKETS, INC.,
MELLON BANK, N.A. and
CITICORP SECURITIES, INC.
as Syndication Agents
FIRST CHICAGO CAPITAL MARKETS, INC. and
MELLON BANK, N.A.
as Arrangers
THE FIRST NATIONAL BANK OF CHICAGO
as Administrative Agent
and
MELLON BANK, N.A.
as Documentation Agent
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Certain Defined Terms .................................. 1
1.02 Computation of Time Periods ............................ 11
1.03 Accounting Principles .................................. 11
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01 The Contract Advances .................................. 11
2.02 Making the Contract Advances ........................... 11
2.03 The Auction Advances ................................... 12
2.04 Fees ................................................... 15
2.05 Reduction of the Commitments ........................... 16
2.06 Repayment of Contract Advances ......................... 16
2.07 Interest on Contract Advances .......................... 16
2.08 Additional Interest on Contract Advances ............... 16
2.09 Interest Rate Determination ............................ 17
2.10 Conversion of Contract Advances ........................ 17
2.11 Prepayments ............................................ 18
2.12 Increased Costs ........................................ 18
2.13 Illegality ............................................. 19
2.14 Payments and Computations .............................. 19
2.15 Taxes .................................................. 20
2.16 Sharing of Payments, Etc ............................... 22
2.17 Extension of Termination Date .......................... 22
2.18 Additional Lenders ..................................... 23
ARTICLE III
CONDITIONS OF LENDING
3.01 Conditions Precedent to Initial Advances ................ 25
3.02 Conditions Precedent to Certain Contract Borrowings ..... 26
3.03 Conditions Precedent to Each Auction Borrowing .......... 26
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01 Representations and Warranties of the Borrower .......... 27
ARTICLE V
COVENANTS OF THE BORROWER
5.01 Affirmative Covenants ................................... 28
5.02 Negative Covenants ...................................... 30
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Section Page
ARTICLE VI
EVENTS OF DEFAULT
6.01 Events of Default ......................................... 31
ARTICLE VII
THE AGENTS
7.01 Authorization and Action .................................. 33
7.02 Agents' Reliance, Etc ..................................... 33
7.03 Agents and Affiliates ..................................... 34
7.04 Lender Credit Decision .................................... 34
7.05 Indemnification ........................................... 34
7.06 Successor Administrative Agent ............................ 35
7.07 Syndication Agents, Co-Agents, Lead Managers and Arrangers. 35
ARTICLE VIII
MISCELLANEOUS
8.01 Amendments, Etc............................................. 35
8.02 Notices, Etc................................................ 35
8.03 No Waiver; Remedies......................................... 36
8.04 Costs and Expenses; Indemnification......................... 36
8.05 Right of Set-off............................................ 37
8.06 Binding Effect.............................................. 37
8.07 Assignments and Participations.............................. 37
8.08 Governing Law............................................... 39
8.09 Consent to Jurisdiction..................................... 40
8.10 Execution in Counterparts; Integration...................... 40
Schedule I List of Applicable Lending Offices
Exhibit A-1 Form of Contract Note
Exhibit A-2 Form of Auction Note
Exhibit B-1 Notice of a Contract Borrowing
Exhibit B-2 Notice of an Auction Borrowing
Exhibit C Assignment and Acceptance
Exhibit D Form of Opinion of Special Counsel for the Borrower
Exhibit E Form of Opinion of Counsel to the Documentation Agent
Exhibit F Form of Annual and Quarterly Compliance Certificate
Exhibit G Form of Additional Lender Supplement
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REVOLVING CREDIT AGREEMENT
dated as of October 7, 1997
PECO Energy Company, a Pennsylvania corporation (the "Borrower"), the
banks listed on the signature pages hereof (the "Banks"), certain Banks
specified herein, as lead managers hereunder (in such capacity, the "Lead
Managers"), certain Banks specified herein, as co-agents hereunder (in such
capacity, the "Co-Agents"), First Chicago Capital Markets, Inc. ("First Chicago
Capital Markets"), Mellon Bank, N.A. ("Mellon") and CitiCorp Securities, Inc.
("CitiCorp"), as syndication agents hereunder (in such capacity, the
"Syndication Agents"), First Chicago Capital Markets and Mellon, as arrangers
hereunder (in such capacity, the "Arrangers"), The First National Bank of
Chicago ("First Chicago"), as administrative agent for the Lenders hereunder (in
such capacity, the "Administrative Agent"), and Mellon, as documentation agent
for the Lenders hereunder (in such capacity, the "Documentation Agent"), hereby
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, each
of the following terms shall have the meaning set forth next to such term below
(each such meaning to be equally applicable to both the singular and plural
forms of the term defined):
"Additional Lender" has the meaning specified in Section 2.18.
"Adjusted CD Rate" means, for any Interest Period for each Adjusted CD
Rate Advance made as part of the same Contract Borrowing, an interest rate
per annum equal to the sum of:
(a) the rate per annum obtained by dividing (i) the rate of interest
determined by the Administrative Agent to be the average (rounded
upward to the nearest whole multiple of 1/100 of 1% per annum, if such
average is not such a multiple) of the consensus bid rate determined
by each of the Reference Banks for the bid rates per annum, at 10:00
A.M. (Chicago time) (or as soon thereafter as practicable) on the
first day of such Interest Period, of New York certificate of deposit
dealers of recognized standing selected by such Reference Bank for the
purchase at face value of certificates of deposit of such Reference
Bank in an amount substantially equal to such Reference Bank's
Adjusted CD Rate Advance made as part of such Contract Borrowing and
with a maturity equal to such Interest Period, by (ii) a percentage
equal to 100% minus the Domestic Rate Reserve Percentage for such
Interest Period, plus
(b) the Assessment Rate for such Interest Period.
The Adjusted CD Rate for the Interest Period for each Adjusted CD Rate
Advance made as part of the same Contract Borrowing shall be determined by
the Administrative Agent on the basis of applicable rates furnished to and
received by the Administrative Agent from the Reference Banks on the first
day of such Interest Period, subject, however, to the provisions of Section
2.09.
"Adjusted CD Rate Advance" means a Contract Advance that bears
interest as provided in Section 2.07(b).
"Administrative Agent" means First Chicago in its capacity as
administrative agent for the Lenders pursuant to Article VII, and not in
its individual capacity as a Lender, and any successor Administrative Agent
appointed pursuant to Article VII.
"Advance" means a Contract Advance or an Auction Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person.
"Agents" means the Administrative Agent, the Documentation Agent, the
Syndication Agents, the Arrangers, the Co-Agents and Lead Managers,
collectively.
"Applicable Commitment Fee Rate" means (i) during any ▇▇▇▇▇ ▇ Rating
Period, 0.100% per annum, (ii) during any Level 2 Rating Period, 0.125% per
annum, (iii) during any Level 3 Rating Period, 0.150% per annum, (iv)
during any Level 4 Rating Period, 0.1875% per annum and (v) during any
Level 5 Rating Period, 0.300% per annum. The Applicable Commitment Fee Rate
shall change when and as the Rating Period changes.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance, such
Lender's CD Lending Office in the case of an Adjusted CD Rate Advance, and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and, in the case of an Auction Advance, the office of such Lender
notified by such Lender to the Administrative Agent as its Applicable
Lending Office with respect to such Auction Advance.
"Applicable Margin" means, on any date, for a Base Rate Advance, an
Adjusted CD Rate Advance or a Eurodollar Rate Advance, the interest rate
per annum set forth below in the column entitled "Base Rate", "CD Rate" or
"Eurodollar Rate", as appropriate, opposite the applicable Rating Period in
effect on such date:
Rating Period Base Rate CD Rate Eurodollar Rate
Level 1 0 .400% .275%
▇▇▇▇▇ ▇ ▇ .▇▇▇% .▇▇▇%
▇▇▇▇▇ ▇ ▇ .500% .400%
Level 4 0 .625% .500%
▇▇▇▇▇ ▇ 0 .875% .750%
The Applicable Margin applicable to an outstanding Contract Advance shall
change when and as the Rating Period changes.
"Arranger" means either of First Chicago Capital Markets or Mellon, in
its capacity as Arranger, and not in its individual capacity as a Lender.
"Assessment Rate" for the Interest Period for each Adjusted CD Rate
Advance made as part of the same Contract Borrowing means the assessment
rate per annum (rounded upwards to the next higher multiple of 1/100 of 1%
if the rate is not such a multiple) payable to the Federal Deposit
Insurance Corporation (or any successor) by a member of the Bank Insurance
Fund which is classified as adequately capitalized and within supervisory
subgroup "A" (or a comparable successor assessment risk classification)
within the meaning of 12 C.F.R. ss.327.4(a) (or any successor provision)
for the insurance of time deposits at the offices of such institution in
the United States, as estimated by the Administrative Agent on the first
day of such Interest Period.
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"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit C hereto.
"Auction Advance" means an advance by a Lender to the Borrower as part
of an Auction Borrowing resulting from the auction bidding procedure
described in Section 2.03.
"Auction Borrowing" means a borrowing consisting of simultaneous
Auction Advances from each of the Lenders whose offer to make one or more
Auction Advances as part of such borrowing has been accepted by the
Borrower under the auction bidding procedure described in Section 2.03.
"Auction Note" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A-2 hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from
an Auction Advance made by such Lender.
"Auction Reduction" has the meaning specified in Section 2.01.
"Base Rate" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time which rate per annum shall at
all times be equal to the higher of:
(a) the rate of interest announced by First Chicago, from time to
time, as its corporate base rate; and
(b) the sum of 1/2 of 1% per annum plus the Federal Funds Rate in
effect from time to time.
"Base Rate Advance" means a Contract Advance that bears interest as
provided in Section 2.07(a).
"Benchmark Debt" means the Borrower's senior secured long-term debt
or, in the event that the Borrower has no senior secured long-term debt
rated by S&P (or by a generally recognized successor to S&P) or by ▇▇▇▇▇'▇
(or by a generally recognized successor to ▇▇▇▇▇'▇), the Borrower's senior
unsecured long-term debt.
"Borrowing" means a Contract Borrowing or an Auction Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized to close in Philadelphia, Pennsylvania, Chicago, Illinois or
New York, New York, and, if the applicable Business Day relates to any
Eurodollar Rate Advances, on which dealings are carried on in the London
interbank market.
"CD Lending Office" means, with respect to any Lender, the office of
such Lender specified as its "CD Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time
to time specify to the Borrower and the Administrative Agent.
"Co-Agent" means a Bank identified as such on the signature pages to
this Agreement, in its capacity as Co-Agent, and not in its individual
capacity as a Lender.
"Code" means the Internal Revenue Code of 1986, and the regulations
promulgated thereunder, in each case as amended, reformed or otherwise
modified from time to time.
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"Commitment" has the meaning specified in Section 2.01.
"Consolidated Adjusted Total Capitalization" on any date shall mean
the sum, without duplication, of the following with respect to the Borrower
and its consolidated Subsidiaries (exclusive, in each case, of Nonrecourse
Transition Bond Debt, to the extent Nonrecourse Transition Bond Debt would
otherwise be included in such item): (a) total capitalization as of such
date, as determined in accordance with GAAP, (b) the current portion of
liabilities which as of such date would be classified in whole or part as
long-term debt in accordance with GAAP (it being understood that the
noncurrent portion of such liabilities is included in the total
capitalization referred to in clause (a)), (c) all obligations as lessee
which, in accordance with GAAP, are capitalized as liabilities (including
the current portion thereof), and (d) all other liabilities which would be
classified as short-term debt in accordance with GAAP (including, without
limitation, all liabilities of the types classified as "Notes Payable,
Bank" on the Borrower's audited balance sheet for December 31, 1996).
"Consolidated Adjusted Total Debt" on any date shall mean the sum,
without duplication, of the following with respect to the Borrower and its
consolidated Subsidiaries (exclusive, in each case, of Nonrecourse
Transition Bond Debt, to the extent Nonrecourse Transition Bond Debt would
otherwise be included in such item): (a) all liabilities which as of such
date would be classified in whole or in part as long-term debt in
accordance with GAAP (including the current portion thereof), (b) all
obligations as lessee which, in accordance with GAAP, are capitalized as
liabilities (including the current portion thereof), and (c) all other
liabilities which would be classified as short-term debt in accordance with
GAAP (including, without limitation, all liabilities of the types
classified as "Notes Payable, Bank" on the Borrower's audited balance sheet
for December 31, 1996).
"Contract Advance" means an advance by a Lender to the Borrower as
part of a Contract Borrowing and refers to an Adjusted CD Rate Advance, a
Base Rate Advance or a Eurodollar Rate Advance, each of which shall be a
"Type" of Contract Advance.
"Contract Borrowing" means a borrowing consisting of simultaneous
Contract Advances of the same Type and, if such Borrowing comprises
Adjusted CD Rate Advances or Eurodollar Rate Advances, having Interest
Periods of the same duration, made by each of the Lenders pursuant to
Section 2.01 or Converted pursuant to Section 2.10.
"Contract Note" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Contract Advances made by such Lender.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated)
under common control that, together with the Borrower or any Subsidiary,
are treated as a single employer under Section 414(b) or 414(c) of the
Code.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of another Type or the selection of a
new, or the renewal of the same, Interest Period for Eurodollar Rate
Advances or CD Rate Advances, as the case may be, pursuant to Section 2.10.
"Debt" means (i) indebtedness for borrowed money, (ii) obligations
evidenced by bonds, debentures, notes or other similar instrument, (iii)
obligations to pay the deferred purchase price of property or services
(other than trade payables incurred in the ordinary course of business),
(iv) obligations as lessee under leases that shall have been or are
required to be, in accordance with GAAP, recorded as capital leases, (v)
obligations (contingent or otherwise) under
4
reimbursement or similar agreements with respect to the issuance of letters
of credit (other than obligations in respect of documentary letters of
credit opened to provide for the payment of goods or services purchased in
the ordinary course of business) and (vi) obligations under direct or
indirect guaranties in respect of, and obligations (contingent or
otherwise) to purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect of, indebtedness or obligations of others
of the kinds referred to in clauses (i) through (v) above.
"Documentation Agent" means Mellon in its capacity as documentation
agent pursuant to Article VII, and not in its individual capacity as a
Lender.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Administrative
Agent.
"Domestic Rate Reserve Percentage" for the Interest Period for any
Adjusted CD Rate Advance means the reserve percentage applicable on the
first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including, but
not limited to, any emergency, supplemental or other marginal reserve
requirement) with respect to liabilities consisting of or including (among
other liabilities) U.S. dollar nonpersonal time deposits of $100,000 or
more in the United States with a maturity equal to such Interest Period.
"Eligible Assignee" means (i) a commercial bank organized under the
laws of the United States, or any State thereof; (ii) a commercial bank
organized under the laws of any other country that is a member of the OECD
or has concluded special lending arrangements with the International
Monetary Fund associated with its General Arrangements to Borrow, or a
political subdivision of any such country, provided that such bank is
acting through a branch or agency located in the United States; (iii) a
finance company, insurance company or other financial institution or fund
(whether a corporation, partnership or other entity) engaged generally in
making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business; or (iv) the central bank of any country
that is a member of the OECD; provided, however, that (A) any such Person
described in clause (i), (ii) or (iii) above shall also (x) have
outstanding unsecured long-term debt that is rated BBB- or better by S&P
and Baa3 or better by ▇▇▇▇▇'▇ (or an equivalent rating by another
nationally recognized credit rating agency of similar standing if either
such corporation is no longer in the business of rating unsecured
indebtedness of entities engaged in such businesses) and (y) have combined
capital and surplus (as established in its most recent report of condition
to its primary regulator) of not less than $100,000,000 (or its equivalent
in foreign currency), and (B) any Person described in clause (ii), (iii) or
(iv) above shall, on the date on which it is to become a Lender hereunder,
be entitled to receive payments hereunder without deduction or withholding
of any United States Federal income taxes (as contemplated by Section
2.15(e)).
"Eligible Successor" means a Person which (i) is a corporation duly
incorporated, validly existing and in good standing under the laws of one
of the states of the United States or the District of Columbia, (ii) is
qualified to do business in Pennsylvania, (iii) as a result of the
contemplated acquisition, consolidation or merger, will succeed to all or
substantially all of the consolidated business and assets of the Borrower
and its Subsidiaries, (iv) upon giving effect to the contemplated
acquisition, consolidation or merger, will have all or substantially all of
its consolidated business and assets conducted and located in the United
States and (v) is acceptable to the Majority Lenders as a credit matter.
5
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder, each as amended and modified from time to time.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Administrative
Agent.
"Eurodollar Rate" means, for the Interest Period for each Eurodollar
Rate Advance made as part of the same Contract Borrowing, an interest rate
per annum equal to the average (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is not such a multiple)
of the rate per annum at which deposits in U.S. dollars are offered by the
principal office of each of the Reference Banks in London, England, to
prime banks in the London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurodollar Rate Advance made
as part of such Contract Borrowing and for a period equal to such Interest
Period. The Eurodollar Rate for the Interest Period for each Eurodollar
Rate Advance made as part of the same Contract Borrowing shall be
determined by the Administrative Agent on the basis of applicable rates
furnished to and received by the Administrative Agent from the Reference
Banks two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.09.
"Eurodollar Rate Advance" means a Contract Advance that bears interest
as provided in Section 2.07(c).
"Eurodollar Rate Reserve Percentage" of any Lender for the Interest
Period for any Eurodollar Rate Advance means the reserve percentage
applicable during such Interest Period (or if more than one such percentage
shall be so applicable, the daily average of such percentages for those
days in such Interest Period during which any such percentage shall be so
applicable) under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for such
Lender with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
and modified from time to time.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
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 for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
6
"GAAP" shall have the meaning given that term in Section 1.03.
"Interest Period" means, for each Contract Advance, the period
commencing on the date of such Contract Advance or the date of the
Conversion of any Contract Advance into such a Contract Advance and ending
on the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on the
last day of the immediately preceding Interest Period and ending on the
last day of the period selected by the Borrower pursuant to the provisions
below. The duration of each such Interest Period shall be 30, 60, 90 or 180
days in the case of an Adjusted CD Rate Advance, and 1, 2, 3 or 6 months in
the case of a Eurodollar Rate Advance, in each case as the Borrower may
select in accordance with Section 2.02 or 2.10; provided, however, that:
(i) the Borrower may not select any Interest Period that ends
after the Termination Date then in effect;
(ii) Interest Periods commencing on the same date for Contract
Advances made as part of the same Contract Borrowing shall be of the
same duration, and
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, in the case of any Interest Period for a
Eurodollar Rate Advance, that if such extension would cause the last
day of such Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur on the next
preceding Business Day.
"Lead Manager" means a Bank identified as such on the signature pages
to this Agreement, in its capacity as Lead Manager, and not in its
individual capacity as a Lender.
"Lenders" means the Banks listed on the signature pages hereof and
each Eligible Assignee that shall become a party hereto pursuant to Section
2.18 or 8.07.
"Level 1 Rating Period" means any period during which the Benchmark
Debt is rated A- or higher by S&P (or a comparable rating from any
generally recognized successor to S&P) or A3 or higher by Moody's (or a
comparable rating from any generally recognized successor to Moody's) (it
being understood that, for this purpose, such ratings shall be subject to
the Split Rating Adjustment).
"Level 2 Rating Period" means any period which does not qualify as a
Level 1 Rating Period during which the Benchmark Debt is rated BBB+ or
higher by S&P (or a comparable rating from any generally recognized
successor to S&P) or Baa1 or higher by Moody's (or a comparable rating from
any generally recognized successor to Moody's) (it being understood that,
for this purpose, such ratings shall be subject to the Split Rating
Adjustment).
"Level 3 Rating Period" means any period which does not qualify as a
Level 1 or Level 2 Rating Period during which the Benchmark Debt is rated
BBB or higher by S&P (or a comparable rating from any generally recognized
successor to S&P) or Baa2 or higher by Moody's (or a comparable rating from
any generally recognized successor to Moody's) (it being understood that,
for this purpose, such ratings shall be subject to the Split Rating
Adjustment).
"Level 4 Rating Period" means any period which does not qualify as a
▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇ or Level 3 Rating Period during which the Benchmark Debt
is rated BBB- or higher by S&P (or a comparable rating from any generally
recognized successor to S&P) or Baa3 or higher by Moody's (or a comparable
rating from any generally recognized successor to Moody's) (it being
understood that, for this purpose, such ratings shall be subject to the
Split Rating Adjustment).
7
"Level 5 Rating Period" means any period which does not qualify as a
▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇ or Level 4 Rating Period (it being understood
that, for this purpose, such ratings shall be subject to the Split Rating
Adjustment).
"Lien" means any lien (statutory or other), mortgage, pledge, security
interest or other charge or encumbrance, or any other type of preferential
arrangement (including, without limitation, the interest of a vendor or
lessor under any conditional sale, capitalized lease or other title
retention agreement).
"Material Adverse Change" and "Material Adverse Effect" each means,
relative to any occurrence, fact or circumstances of whatsoever nature
(including, without limitation, any determination in any litigation,
arbitration or governmental investigation or proceeding), any materially
adverse change in, or materially adverse effect on, the financial
condition, operations, assets or business of the Borrower and its
consolidated Subsidiaries, taken as a whole.
"Majority Lenders" means, at any time prior to the Termination Date,
Lenders having at least 66-2/3% of the Commitments, and, at any time on or
after the Termination Date, Lenders having at least 66-2/3% of the Advances
outstanding (provided that, for purposes hereof, neither the Borrower, nor
any of its Affiliates, if a Lender, shall be included in (i) the Lenders
having such amount of the Commitments or the Advances or (ii) determining
the total amount of the Commitments or the Advances).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" means the First and Refunding Mortgage, dated as of May 1,
1923, between The Counties Gas & Electric Company (to which the Borrower is
successor) and Fidelity Trust Company, Trustee (to which First Union
National Bank is successor), as amended, supplemented or refinanced from
time to time, provided, that no effect shall be given to any amendment,
supplement or refinancing after the date of this Agreement that would
broaden the definition of "excepted encumbrances" as defined in the
Mortgage as constituted on the date of this Agreement.
"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-Consenting Lender" has the meaning specified in Section 2.17(a).
"Nonrecourse Transition Bond Debt" means obligations evidenced by
"transition bonds" (as defined in 66 Pa. Cons. Stat. ▇▇▇. ss. 2812(g) (West
Supp. 1997), or any successor provision of similar import), rated AA or
higher by S&P (or a comparable rating from a generally recognized successor
to S&P) or Aa2 or higher by Moody's (or a comparable rating from a
generally recognized successor to Moody's), representing a securitization
of "intangible transition property" (as defined in the foregoing statute),
as to which obligations neither the Borrower nor any Subsidiary of the
Borrower (other than a Special Purpose Subsidiary) has any direct or
indirect liability (whether as primary obligor, guarantor, or surety,
provider of collateral security, put option, asset repurchase agreement or
capital maintenance agreement, debt subordination agreement, or through
other right or arrangement of any nature providing direct or indirect
assurance of payment or performance of any such obligations in whole or in
part), except for liability to repurchase "intangible transition property"
conveyed to the securitization vehicle, on terms and conditions customary
in receivables securitizations, in the event such "intangible transition
property" violates representations and warranties of scope customary in
receivables securitizations. "Special Purpose Subsidiary" means a direct or
indirect wholly-owned corporate Subsidiary of the Borrower, substantially
all of the assets of which are
8
"intangible transition property" and proceeds thereof, formed solely for
the purpose of holding such assets and issuing such "transition bonds," and
which complies with the requirements customarily imposed on
bankruptcy-remote corporations in receivables securitizations.
"Note" means a Contract Note or an Auction Note.
"Notice of a Contract Borrowing" has the meaning specified in Section
2.02(a).
"Notice of an Auction Borrowing" has the meaning specified in Section
2.03(a).
"OECD" means the Organization for Economic Cooperation and
Development.
"Order of Registration" has the meaning assigned to that term in
Section 3.01(a)(iii).
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means an employee pension benefit plan that 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.
"PPUC" means the Pennsylvania Public Utility Commission.
"Principal Subsidiary" means (i) each Utility Subsidiary and (ii) from
and after the date on which the aggregate book value of the assets of the
Subsidiaries of the Borrower that are not Utility Subsidiaries exceeds
$250,000,000, each such Subsidiary the assets of which exceeded $75,000,000
in book value at any time during the preceding 24-month period.
"Rating Period" means a Level 1 Rating Period, a Level 2 Rating
Period, a Level 3 Rating Period, a Level 4 Rating Period or a Level 5
Rating Period, as the case may be.
"Reference Banks" means First Chicago, Mellon and Citibank, N.A.
"Register" has the meaning specified in Section 8.07(c).
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and regulations issued under such section with respect to a Plan,
excluding, however, such events as to which the PBGC 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 that a failure to meet the
minimum funding standard of Section 412 of the Code and Section 302 of
ERISA shall be a Reportable Event regardless of the issuance of any such
waivers in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Securities Certificate" has the meaning assigned to that term in
Section 3.01(a)(iii).
"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.
9
"Special Purpose Subsidiary" has the meaning assigned to that term in
the definition of "Nonrecourse Transition Bond Debt."
"Split Rating Adjustment": For the purpose of determining the
appropriate Rating Period, the rating of the Benchmark Debt shall be
subject to adjustment as follows. In the event that the Benchmark Debt is
rated at equivalent rating levels or not more than one rating level apart
by S&P (or any generally accepted successor to S&P) and Moody's (or any
generally accepted successor to Moody's), then no adjustment shall apply.
Otherwise, the higher of the two ratings shall be deemed to be reduced to
the next lower rating level. For this purpose, (i) determination of the
rating level shall take into account "+" and "-" modifiers to S&P ratings
and numerical modifiers to Moody's ratings (so that, for example, an S&P
rating of A- shall be deemed equivalent to a ▇▇▇▇▇'▇ rating of A3, an S&P
rating of BBB+ shall be deemed equivalent to a ▇▇▇▇▇'▇ rating of Baa1, an
S&P rating of BBB shall be deemed equivalent to a ▇▇▇▇▇'▇ rating of Baa2,
an S&P rating of BBB- shall be deemed equivalent to a ▇▇▇▇▇'▇ rating of
Baa3, and so on), and (ii) by way of clarification, in the event the
Benchmark Debt is rated by only one of the two referenced rating agencies,
such rating shall be deemed to be reduced to the next lower rating level.
"Subsidiary" means, with respect to any Person, any corporation or
unincorporated entity of which more than 50% of the outstanding capital
stock (or comparable interest) having ordinary voting power (irrespective
of whether or not at the time capital stock, or comparable interests, of
any other class or classes of such corporation or entity shall or might
have voting power upon the occurrence of any contingency) is at the time
directly or indirectly owned by such Person (whether directly or through
one or more other Subsidiaries).
"Syndication Agent" means any of First Chicago Capital Markets, Mellon
or CitiCorp, in its capacity as Syndication Agent, and not in its
individual capacity as a Lender.
"Termination Date" means the earlier of (i) October 7, 2000 (or, if
such date is not a Business Day, the next preceding Business Day) or such
later date that may be established pursuant to Section 2.17(a) or (ii) the
date of termination in whole of the Commitments pursuant to Section 2.05 or
Section 6.01.
"364-Day Credit Agreement" means that certain 364-Day Credit
Agreement, dated as of October 7, 1997, among the Borrower, the banks named
therein, certain banks specified therein, as lead managers thereunder,
certain banks specified therein, as co-agents thereunder, First Chicago
Capital Markets, Mellon and CitiCorp, as syndication agents thereunder,
First Chicago Capital Markets and Mellon, as arrangers thereunder, First
Chicago, as administrative agent for the lenders thereunder, and Mellon, as
documentation agent for the lenders thereunder, as the same may be amended,
modified or supplemented from time to time.
"Unfunded Liabilities" means, (i) in the case of any Single Employer
Plan, the amount (if any) by which the present value of all vested
nonforfeitable benefits under such Plan exceeds the fair market value of
all Plan assets allocable to such benefits, all determined as of the then
most recent evaluation date for such Plan, and (ii) in the case of any
Multiemployer Plan, the withdrawal liability that would be incurred by the
Controlled Group if all members of the Controlled Group completely withdrew
from such Multiemployer Plan.
"Utility Subsidiary" means each Subsidiary of the Borrower that is
engaged principally in the generation, transmission, or distribution of
electricity or gas and is subject to regulation as a public utility by
federal or state regulatory authorities.
"Yield" means, for any Auction Advance, the effective rate per annum
at which interest on such Auction Advance is payable, computed on the basis
of a year of 360 days for the actual
10
number of days (including the first day but excluding the last day)
occurring in the period for which such interest is payable.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
SECTION 1.03. Accounting Principles. As used in this Agreement, "GAAP"
shall mean generally accepted accounting principles in the United States,
applied on a basis consistent with the principles used in preparing the
Borrower's audited consolidated financial statements as of December 31, 1996 and
for the fiscal year then ended. In this Agreement, except to the extent, if any,
otherwise provided herein, all accounting and financial terms shall have the
meanings ascribed to such terms by GAAP, and all computations and determinations
as to accounting and financial matters shall be made in accordance with GAAP. In
the event that the financial statements generally prepared by the Borrower apply
accounting principles other than GAAP, the compliance certificate delivered
pursuant to Section 5.01(b)(iv) accompanying such financial statements shall
include information in reasonable detail reconciling such financial statements
to GAAP to the extent relevant to the calculations set forth in such compliance
certificate.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Contract Advances. Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make Contract Advances to the
Borrower from time to time on any Business Day during the period from the date
hereof until (but excluding) the Termination Date in an aggregate amount not to
exceed at any time outstanding the amount set forth opposite such Lender's name
on the signature pages hereof or, if such Lender has entered into any Assignment
and Acceptance or Additional Lender Supplement, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section 8.07(c), as
such amount may be reduced pursuant to Section 2.05 or 2.17 (such Lender's
"Commitment"); provided, that the aggregate amount of the Commitments of the
Lenders shall be deemed used from time to time to the extent of the aggregate
amount of the Auction Advances then outstanding, and such deemed use of the
aggregate amount of the Commitments shall be applied to the Lenders ratably
according to their respective Commitments (such deemed use of the aggregate
amount of the Commitments being an "Auction Reduction"). Each Contract Borrowing
shall consist of Contract Advances of the same Type made or Converted on the
same day by the Lenders ratably according to their respective Commitments. Each
Contract Borrowing comprising Base Rate Advances shall be in an aggregate amount
not less than $5,000,000, and each Contract Borrowing comprising Adjusted CD
Rate Advances or Eurodollar Rate Advances shall be in an aggregate amount not
less than $10,000,000. Within the limits of each Lender's Commitment, the
Borrower may from time to time borrow, prepay pursuant to Section 2.11 and
reborrow under this Section 2.01.
SECTION 2.02. Making the Contract Advances. (a) Each Contract
Borrowing (other than pursuant to a Conversion) shall be made on notice, given
not later than 10:00 A.M. (Chicago time) on the third Business Day prior to the
date of any proposed Contract Borrowing comprising Eurodollar Rate Advances, on
the second Business Day prior to the date of any proposed Contract Borrowing
comprising Adjusted CD Rate Advances and on the date of any proposed Contract
Borrowing comprising Base Rate Advances, by the Borrower to the Administrative
Agent, which shall give to each Lender prompt notice thereof. Each such notice
of a Contract Borrowing (a "Notice of a Contract Borrowing") shall be sent by
telecopier, telex or cable, confirmed immediately in writing, in substantially
the form of Exhibit B-1 hereto, specifying therein the requested (i) date of
such Contract Borrowing, (ii) Type of Contract Advances to be made in connection
with such Contract Borrowing, (iii)
11
aggregate amount of such Contract Borrowing, and (iv) in the case of a Contract
Borrowing comprising Adjusted CD Rate Advances or Eurodollar Rate Advances,
initial Interest Period for the Contract Advances to be made in connection with
such Contract Borrowing. Each Lender shall, before 11:00 A.M. (Chicago time) on
the date of such Contract Borrowing, make available for the account of its
Applicable Lending Office to the Administrative Agent at its address referred to
in Section 8.02, in same day funds, such Lender's ratable portion of such
Contract Borrowing. After the Administrative Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the Borrower at the
Administrative Agent's aforesaid address.
(b) Each Notice of a Contract Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Contract Borrowing that the related
Notice of a Contract Borrowing specifies is to comprise Adjusted CD Rate
Advances or Eurodollar Rate Advances, the Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in such Notice of a Contract
Borrowing for such Contract Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss, cost or expense incurred
by reason of the liquidation or reemployment of deposits or other funds acquired
by such Lender to fund the Contract Advance to be made by such Lender as part of
such Contract Borrowing when such Contract Advance, as a result of such failure,
is not made on such date.
(c) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Contract Borrowing that such Lender will not
make available to the Administrative Agent such Lender's ratable portion of such
Contract Borrowing, the Administrative Agent may assume that such Lender has
made such portion available to the Administrative Agent on the date of such
Contract Borrowing in accordance with subsection (a) of this Section 2.02 and
the Administrative Agent may, in reliance upon such assumption, make available
to the Borrower on such date a corresponding amount. If and to the extent that
such Lender shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the Borrower severally agree to repay to
the Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available
to the Borrower until the date such amount is repaid to the Administrative
Agent, at (i) in the case of the Borrower, the interest rate applicable at the
time to Contract Advances made in connection with such Contract Borrowing and
(ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall
repay to the Administrative Agent such corresponding amount, such amount so
repaid shall constitute such Lender's Contract Advance as part of such Contract
Borrowing for purposes of this Agreement.
(d) The failure of any Lender to make the Contract Advance to be made
by it as part of any Contract Borrowing shall not relieve any other Lender of
its obligation, if any, hereunder to make its Contract Advance on the date of
such Contract Borrowing, but no Lender shall be responsible for the failure of
any other Lender to make the Contract Advance to be made by such other Lender on
the date of any Contract Borrowing.
(e) Notwithstanding anything to the contrary contained herein, no more
than sixteen (16) Contract Borrowings comprising Adjusted CD Rate Advances and
Eurodollar Rate Advances may be outstanding at any time.
SECTION 2.03. The Auction Advances. (a) Each Lender severally agrees
that the Borrower may request Auction Borrowings under this Section 2.03 from
time to time on any Business Day during the period from the date hereof until
the date occurring seven days prior to the Termination Date, in the manner set
forth below; provided that, following the making of each Auction Borrowing, the
aggregate amount of the Advances then outstanding shall not exceed the aggregate
amount of the Commitments of the Lenders.
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(i) The Borrower may request an Auction Borrowing by delivering to the
Administrative Agent by telecopier, telex or cable, confirmed immediately
in writing, a notice of an Auction Borrowing (a "Notice of an Auction
Borrowing"), in substantially the form of Exhibit B-2 hereto, specifying
the date and aggregate amount of the proposed Auction Borrowing, the
maturity date for repayment of each Auction Advance to be made as part of
such Auction Borrowing (which maturity date may not be earlier than the
date occurring seven days after the date of such Auction Borrowing or later
than the earlier to occur of (A) 270 days after the date of such Auction
Borrowing and (B) the Termination Date), the interest payment date or dates
relating thereto (which shall occur at least every 90 days), and any other
terms to be applicable to such Auction Borrowing, not later than 9:00 A.M.
(Chicago time) at least one Business Day prior to the date of the proposed
Auction Borrowing. The Administrative Agent shall in turn promptly notify
each Lender of each request for an Auction Borrowing received by it from
the Borrower by sending such Lender a copy of the related Notice of an
Auction Borrowing.
(ii) Each Lender may, in its sole discretion, elect to irrevocably
offer to make one or more Auction Advances to the Borrower as part of such
proposed Auction Borrowing at a rate or rates of interest specified by such
Lender in its sole discretion, by notifying the Administrative Agent (which
shall give prompt notice thereof to the Borrower), before 9:00 A.M.
(Chicago time) on the date of such proposed Auction Borrowing of the
minimum amount and maximum amount of each Auction Advance that such Lender
would be willing to make as part of such proposed Auction Borrowing (which
amounts may, subject to the proviso to the first sentence of this Section
2.03(a), exceed such Lender's Commitment), the rate or rates of interest
therefor, the interest period relating thereto and such Lender's Applicable
Lending Office with respect to such Auction Advance; provided that if the
Administrative Agent in its capacity as a Lender shall, in its sole
discretion, elect to make any such offer, it shall notify the Borrower of
such offer before 8:00 A.M. (Chicago time) on the date on which notice of
such election is to be given to the Administrative Agent by the other
Lenders.
(iii) The Borrower shall, in turn, before 10:00 A.M. (Chicago time) on
the date of such proposed Auction Borrowing, either
(A) cancel such Auction Borrowing by giving the Administrative
Agent notice to that effect, or
(B) irrevocably accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in its sole
discretion, in an aggregate amount not in excess of the aggregate
amount of the proposed Auction Borrowing requested in the relevant
Notice of an Auction Borrowing, subject only to the provisions of this
paragraph (iii), by giving notice to the Administrative Agent of the
amount of each Auction Advance (which amount shall be equal to or
greater than the minimum amount, and equal to or less than the maximum
amount, notified to the Borrower by the Administrative Agent on behalf
of such Lender for such Auction Advance pursuant to paragraph (ii)
above) to be made by each Lender as part of such Auction Borrowing,
and reject any remaining offers made by Lenders pursuant to paragraph
(ii) above by giving the Administrative Agent notice to that effect;
provided, however, that (x) the Borrower shall not accept an offer
made pursuant to paragraph (ii) above, at any Yield if the Borrower
shall have, or shall be deemed to have, rejected any other offer made
pursuant to paragraph (ii) above, at a lower Yield, (y) if the
Borrower declines to accept, or is otherwise restricted by the
provisions of this Agreement from accepting, the maximum aggregate
principal amount of Auction Borrowings offered at the same Yield
pursuant to paragraph (ii) above,
13
then the Borrower shall accept a pro rata portion of each offer made
at such Yield, based as nearly as possible on the ratio of the
aggregate principal amount of such offers to be accepted by the
Borrower to the maximum aggregate principal amount of such offers made
pursuant to paragraph (ii) above (rounding up or down to the next
higher or lower multiple of $1,000,000), and (z) no offer made
pursuant to paragraph (ii) above shall be accepted unless the Auction
Borrowing in respect of such offer is in an integral multiple of
$1,000,000 and the aggregate amount of such offers accepted by the
Borrower is equal to at least $10,000,000.
Any offer or offers made pursuant to paragraph (ii) above not expressly
accepted or rejected by the Borrower in accordance with this paragraph
(iii) shall be deemed to have been rejected by the Borrower.
(iv) If the Borrower notifies the Administrative Agent that such
Auction Borrowing is canceled pursuant to clause (A) of paragraph (iii)
above, the Administrative Agent shall give prompt notice thereof to the
Lenders and such Auction Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to clause (B) of paragraph (iii) above, the
Administrative Agent shall in turn promptly notify (A) each Lender that has
made an offer as described in paragraph (ii) above, of the date and
aggregate amount of such Auction Borrowing and whether or not any offer or
offers made by such Lender pursuant to paragraph (ii) above have been
accepted by the Borrower, (B) each Lender that is to make an Auction
Advance as part of such Auction Borrowing of the amount of each Auction
Advance to be made by such Lender as part of such Auction Borrowing, and
(C) each Lender that is to make an Auction Advance as part of such Auction
Borrowing, upon receipt, that the Administrative Agent has received forms
of documents appearing to fulfill the applicable conditions set forth in
Article III. Each Lender that is to make an Auction Advance as part of such
Auction Borrowing shall, before 11:00 A.M. (Chicago time) on the date of
such Auction Borrowing specified in the notice received from the
Administrative Agent pursuant to clause (A) of the preceding sentence or
any later time when such Lender shall have received notice from the
Administrative Agent pursuant to clause (C) of the preceding sentence, make
available for the account of its Applicable Lending Office to the
Administrative Agent at its address referred to in Section 8.02 such
Lender's portion of such Auction Borrowing, in same day funds. Upon
fulfillment of the applicable conditions set forth in Article III and after
receipt by the Administrative Agent of such funds, the Administrative Agent
will make such funds available to the Borrower at the Administrative
Agent's aforesaid address. Promptly after each Auction Borrowing, the
Administrative Agent will notify each Lender of the amount of the Auction
Borrowing, the consequent Auction Reduction and the dates upon which such
Auction Reduction commenced and will terminate.
(b) Each Auction Advance shall be in an amount not less than
$1,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each Auction Borrowing, the Borrower shall be in
compliance with the limitation set forth in the proviso to the first sentence of
subsection (a) above.
(c) Within the limits and on the conditions set forth in this Section
2.03, the Borrower may from time to time borrow under this Section 2.03, repay
or prepay pursuant to subsection (d) below, and reborrow under this Section
2.03; provided, that an Auction Borrowing shall not be made within three
Business Days of the date of any other Auction Borrowing.
14
(d) The Borrower shall repay to the Administrative Agent for the
account of each Lender that has made an Auction Advance, or each other holder of
an Auction Note, on the maturity date of each Auction Advance (such maturity
date being that specified by the Borrower for repayment of such Auction Advance
in the related Notice of an Auction Borrowing delivered pursuant to subsection
(a)(i) above and provided in the Auction Note evidencing such Auction Advance),
the then unpaid principal amount of such Auction Advance. The Borrower shall
have no right to prepay any principal amount of any Auction Advance unless, and
then only on the terms, specified by the Borrower for such Auction Advance in
the related Notice of an Auction Borrowing delivered pursuant to subsection
(a)(i) above and set forth in the Auction Note evidencing such Auction Advance.
(e) The Borrower shall pay interest on the unpaid principal amount of
each Auction Advance from the date of such Auction Advance to the date the
principal amount of such Auction Advance is repaid in full, at the rate of
interest for such Auction Advance specified by the Lender making such Auction
Advance in its notice with respect thereto delivered pursuant to subsection
(a)(ii) above, payable on the interest payment date or dates specified by the
Borrower for such Auction Advance in the related Notice of an Auction Borrowing
delivered pursuant to subsection (a)(i) above, as provided in the Auction Note
evidencing such Auction Advance.
(f) The indebtedness of the Borrower resulting from each Auction
Advance made to the Borrower as part of an Auction Borrowing shall be evidenced
by a separate Auction Note of the Borrower payable to the order of the Lender
making such Auction Advance.
(g) Upon payment in full of the principal amount of any Auction Note
and interest accrued thereon, the holder of such Auction Note shall cancel and
return such Auction Note to the Borrower.
SECTION 2.04. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee on the
average daily unused portion of such Lender's Commitment (after giving effect to
any Auction Reduction) from the date hereof in the case of each Bank, and from
the effective date specified in the Assignment and Acceptance or the Additional
Lender Supplement pursuant to which it became a Lender in the case of each other
Lender, until the Termination Date, and, in the case of the termination in whole
of a Lender's Commitment pursuant to Section 2.05 or 2.17, the date of such
termination, payable on the last day of each March, June, September and December
during such period, and on the Termination Date, and, in the case of the
termination in whole of a Lender's Commitment pursuant to Section 2.05 or 2.17,
the date of such termination, at a percentage rate per annum equal to the
Applicable Commitment Fee Rate in effect from time to time, changing when and as
the Applicable Commitment Fee Rate changes.
(b) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender an auction facility fee on the average daily aggregate
principal amount of such Lender's Auction Reduction during the period from the
date hereof in the case of each Bank, and from the effective date specified in
the Assignment and Acceptance pursuant to which it became a Lender in the case
of each other Lender, until the Termination Date, and, in the case of the
termination in whole of a Lender's Commitment pursuant to Section 2.05 or 2.17,
the date of such termination, payable on the last day of each March, June,
September and December during such period, and on the Termination Date, and, in
the case of the termination in whole of a Lender's Commitment pursuant to
Section 2.05 or 2.17, the date of such termination, at a percentage rate per
annum equal to the Applicable Commitment Fee Rate in effect from time to time,
changing when and as the Applicable Commitment Fee Rate changes.
(c) The Borrower agrees to pay to the Documentation Agent for its own
account a closing fee as agreed to in writing between the Borrower and the
Documentation Agent, payable upon the execution and delivery of this Agreement.
15
(d) The Borrower agrees to pay to the Administrative Agent for its own
account a closing fee, an auction administration fee and an Administrative
Agent's administration fee, each payable in such amounts and on such dates as
may be agreed to in writing from time to time between the Borrower and the
Administrative Agent.
SECTION 2.05. Reduction of the Commitments. The Borrower shall have
the right, upon at least two Business Days' notice to the Administrative Agent,
to terminate in whole or reduce ratably in part the unused portions of the
respective Commitments of the Lenders; provided, that the aggregate amount of
the Commitments of the Lenders shall not be reduced to an amount that is less
than the aggregate principal amount of the Advances then outstanding; and
provided, further, that each partial reduction shall be in the aggregate amount
of $1,000,000 or an integral multiple thereof.
SECTION 2.06. Repayment of Contract Advances. The Borrower shall repay
the principal amount of each Contract Advance made by each Lender in accordance
with the Contract Note to the order of such Lender.
SECTION 2.07. Interest on Contract Advances. The Borrower shall pay
interest on the unpaid principal amount of each Contract Advance made by each
Lender from the date of such Contract Advance until such principal amount shall
be paid in full, at the following rates per annum:
(a) Base Rate Advances. If such Contract Advance is a Base Rate
Advance, a rate per annum equal at all times to the Base Rate in effect from
time to time, payable quarterly on the last day of each March, June, September
and December during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(b) Adjusted CD Rate Advances. If such Contract Advance is an Adjusted
CD Rate Advance, a rate per annum equal at all times during the Interest Period
for such Contract Advance to the sum of the Adjusted CD Rate for such Interest
Period plus the Applicable Margin for such Adjusted CD Rate in effect from time
to time, payable on the last day of the Interest Period for such Adjusted CD
Rate Advance (or, if the Interest Period for such Advance is 180 days, accrued
interest shall be payable on the 90th day and the 180th day of such Interest
Period) or, if earlier, on the date such Adjusted CD Rate Advance shall be
Converted or paid in full.
(c) Eurodollar Rate Advances. Subject to Section 2.08, if such
Contract Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during the Interest Period for such Contract Advance to the sum of the
Eurodollar Rate for such Interest Period plus the Applicable Margin for such
Eurodollar Rate Advance in effect from time to time, payable on the last day of
the Interest Period for such Eurodollar Rate Advance (or, if the Interest Period
for such Advance is six months, accrued interest shall be payable on the day
that is three months and on the day that is six months from the date such
Advance was made) or, if earlier, on the date such Eurodollar Rate Advance shall
be Converted or paid in full.
SECTION 2.08. Additional Interest on Contract Advances. The Borrower
shall pay to each Lender, so long as such Lender shall be required under
regulations of the Board of Governors of the Federal Reserve System to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, additional interest on the unpaid principal amount of
each Eurodollar Rate Advance of such Lender, from the date of such Contract
Advance until such principal amount is paid in full or Converted, at an interest
rate per annum equal at all times to the remainder obtained by subtracting (i)
the Eurodollar Rate for the Interest Period for such Contract Advance from (ii)
the rate obtained by dividing such Eurodollar Rate by a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage of such Lender for such Interest
Period, payable on each date on which interest is payable on such Contract
Advance; provided, that no Lender shall be entitled to demand such additional
interest more than 90 days following the last day of the Interest Period in
respect of which such demand is made; provided further, however, that the
foregoing proviso shall in no way limit the right of any
16
Lender to demand or receive such additional interest to the extent that such
additional interest relates to the retroactive application of the reserve
requirements described above if such demand is made within 90 days after the
implementation of such retroactive reserve requirements. Such additional
interest shall be determined by such Lender and notified to the Borrower through
the Administrative Agent, and such determination shall be conclusive and binding
for all purposes, absent manifest error.
SECTION 2.09. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Administrative Agent timely information for the purpose
of determining each Adjusted CD Rate or Eurodollar Rate, as applicable. If any
one of the Reference Banks shall not furnish such timely information to the
Administrative Agent for the purpose of determining any such interest rate, the
Administrative Agent shall determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks.
(b) The Administrative Agent shall give prompt notice to the Borrower
and the Lenders of the applicable interest rate determined by the Administrative
Agent for purposes of Section 2.07(a), (b) or (c), and the applicable rate, if
any, furnished by each Reference Bank for the purpose of determining the
applicable interest rate under Section 2.07(b) or (c).
(c) If fewer than two Reference Banks furnish timely information to
the Administrative Agent for determining the Adjusted CD Rate for any Adjusted
CD Rate Advances, or the Eurodollar Rate for any Eurodollar Rate Advances,
(i) the Administrative Agent shall forthwith notify the Borrower
and the Lenders that the interest rate cannot be determined for such
Adjusted CD Rate Advances or Eurodollar Rate Advances, as the case may
be,
(ii) each such Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate
Advance (or if such Advance is then a Base Rate Advance, will continue
as a Base Rate Advance), and
(iii) the obligation of the Lenders to make, or to Convert
Contract Advances into, Adjusted CD Rate Advances or Eurodollar Rate
Advances, as the case may be, shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that
the circumstances causing such suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the Majority
Lenders notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Majority Lenders of making, funding or maintaining their respective Eurodollar
Rate Advances for such Interest Period, the Administrative Agent shall forthwith
so notify the Borrower and the Lenders, whereupon
(i) each Eurodollar Rate Advance will automatically, on the last
day of the then existing Interest Period therefor (unless prepaid or
Converted to any Type of Advance other than a Eurodollar Rate Advance
prior to such date), Convert into a Base Rate Advance, and
(ii) the obligation of the Lenders to make, or to Convert
Contract Advances into, Eurodollar Rate Advances shall be suspended
until the Administrative Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer
exist.
SECTION 2.10. Conversion of Contract Advances. (a) Voluntary. The
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than 10:00 A.M. (Chicago time) on the third Business Day prior to the
date of any proposed Conversion into Eurodollar Rate
17
Advances, the second Business Day prior to the date of any proposed Conversion
into Adjusted CD Rate Advances and on the date of any proposed Conversion into
Base Rate Advances, and subject to the provisions of Sections 2.09 and 2.13,
Convert all Contract Advances of one Type made in connection with the same
Contract Borrowing into Advances of another Type or Types or Advances of the
same Type having the same or a new Interest Period; provided, however, that any
Conversion of Adjusted CD Rate Advances or Eurodollar Rate Advances into
Advances of another Type or Advances of the same Type having the same or new
Interest Periods shall be made on, and only on, the last day of an Interest
Period for such Adjusted CD Rate Advances or Eurodollar Rate Advances, unless
the Borrower shall also reimburse the Lenders in respect thereof pursuant to
Section 8.04(b) on the date of such Conversion. Each such notice of a Conversion
shall, within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the Contract Advances to be Converted, and (iii) if such
Conversion is into, or with respect to, Adjusted CD Rate Advances or Eurodollar
Rate Advances, the duration of the Interest Period for each such Contract
Advance.
(b) Automatic. If the Borrower shall fail to select the Type of any
Contract Advance or the duration of any Interest Period for any Contract
Borrowing comprising Adjusted CD Rate Advances or Eurodollar Rate Advances in
accordance with the provisions contained in the definition of "Interest Period"
in Section 1.01 and Section 2.10(a), the Administrative Agent will forthwith so
notify the Borrower and the Lenders and such Advances will automatically, on the
last day of the then existing Interest Period therefor, Convert into Base Rate
Advances.
SECTION 2.11. Prepayments. The Borrower may, upon at least two
Business Days' notice (or same day notice in the case of any prepayment of Base
Rate Advances) to the Administrative Agent stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given the
Borrower shall, prepay the outstanding principal amounts of the Advances made as
part of the same Contract Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (i) each partial prepayment shall be in an aggregate
principal amount not less than $10,000,000 (or $5,000,000 in the case of any
prepayment of Base Rate Advances) and (ii) in the case of any such prepayment of
an Adjusted CD Advance or Eurodollar Rate Advance, the Borrower shall be
obligated to reimburse the Lenders in respect thereof pursuant to Section
8.04(b) on the date of such prepayment.
SECTION 2.12. Increased Costs. (a) If on or after (x) the date of this
Agreement, in the case of any Contract Advance or any obligation to make a
Contract Advance, or (y) the date a Lender offers to make such Auction Advance,
in the case of any Auction Advance, any Lender determines that (i) the
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements, in the case of Adjusted CD Rate Advances,
included in the Domestic Rate Reserve Percentage or, in the case of Eurodollar
Rate Advances, included in the Eurodollar Rate Reserve Percentage) in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law) shall increase the cost to such Lender
of agreeing to make or making, funding or maintaining Adjusted CD Rate Advances
or Eurodollar Rate Advances, then the Borrower shall from time to time, upon
demand by such Lender (with a copy of such demand to the Administrative Agent),
pay to the Administrative Agent for the account of such Lender additional
amounts (without duplication of any amount payable pursuant to Section 2.15)
sufficient to compensate such Lender for such increased cost; provided, that no
Lender shall be entitled to demand such compensation more than 90 days following
the last day of the Interest Period in respect of which such demand is made;
provided further, however, that the foregoing proviso shall in no way limit the
right of any Lender to demand or receive such compensation to the extent that
such compensation relates to the retroactive application of any law, regulation,
guideline or request described in clause (i) or (ii) above if such demand is
made within 90 days after the implementation of such retroactive law,
interpretation, guideline or request. A certificate as to the amount of such
increased cost, submitted to the Borrower and the Administrative Agent by such
Lender, shall be conclusive and binding for all purposes, absent manifest error.
18
(b) If any Lender determines that, after the date of this Agreement,
compliance with any law or regulation or any guideline or request from any
central bank or other governmental authority (whether or not having the force of
law) affects or would affect the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and that
the amount of such capital is increased by or based upon the existence of such
Lender's commitment to lend hereunder and other commitments of this type or the
Advances made by such Lender, then, upon demand by such Lender (with a copy of
such demand to the Administrative Agent), the Borrower shall immediately pay to
the Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation in the light of such circumstances, to the extent
that such Lender determines such increase in capital to be allocable to the
existence of such Lender's commitment to lend hereunder or the Advances made by
such Lender; provided, that no Lender shall be entitled to demand such
compensation more than one year following the payment to or for the account of
such Lender of all other amounts payable hereunder and under any Note held by
such Lender and the termination of such Lender's Commitment; provided further,
however, that the foregoing proviso shall in no way limit the right of any
Lender to demand or receive such compensation to the extent that such
compensation relates to the retroactive application of any law, regulation,
guideline or request described above if such demand is made within one year
after the implementation of such retroactive law, interpretation, guideline or
request. A certificate as to such amounts submitted to the Borrower and the
Administrative Agent by such Lender shall be conclusive and binding, for all
purposes, absent manifest error.
(c) Any Lender claiming compensation pursuant to this Section 2.12
shall use its best efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its Applicable Lending
Office if the making of such a change would avoid the need for, or reduce the
amount of, any such compensation that may thereafter accrue and would not, in
the reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender.
SECTION 2.13. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for such Lender or its Eurodollar Lending
Office to perform its obligations hereunder to make Eurodollar Rate Advances or
to fund or maintain Eurodollar Rate Advances hereunder, (i) the obligation of
such Lender to make, or to Convert Contract Advances into, Eurodollar Rate
Advances shall be suspended (subject to the following paragraph of this Section
2.13) until the Administrative Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist and (ii) all
Eurodollar Rate Advances of such Lender then outstanding shall, on the last day
of then applicable Interest Period (or such earlier date as such Lender shall
designate upon not less than five Business Days prior written notice to the
Administrative Agent), be automatically Converted into Base Rate Advances.
If the obligation of any Lender to make, fund or maintain Eurodollar
Rate Advances has been suspended pursuant to the preceding paragraph, then,
unless and until the Administrative Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist (i) all
Contract Advances that would otherwise be made by such Lender as Eurodollar Rate
Advances shall instead be made as Base Rate Advances and (ii) to the extent that
Eurodollar Rate Advances of such Lender have been Converted into Base Rate
Advances pursuant to the preceding paragraph or made instead as Base Rate
Advances pursuant to the preceding clause (i), all payments and prepayments of
principal that would have otherwise been applied to such Eurodollar Rate
Advances of such Lender shall be applied instead to such Base Rate Advances of
such Lender.
SECTION 2.14. Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes not later than 10:00 A.M. (Chicago
time) on the day when due in U.S. dollars to the Administrative Agent at its
address referred to in Section 8.02 in same day funds. The Administrative Agent
will promptly thereafter cause to be distributed like funds relating to the
payment of principal or interest or commitment and auction facility fees ratably
(other than amounts payable pursuant to Section 2.02(c), 2.03, 2.08, 2.12, 2.15,
2.17(a) or 8.04(b)) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the payment
19
of any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 8.07(d), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes in respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder or under any Note
held by such Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall be made
by the Administrative Agent on the basis of a year of 365 or 366 days, as the
case may be, and all computations of interest based on the Adjusted CD Rate, the
Eurodollar Rate or the Federal Funds Rate and of commitment fees, auction
facility fees and interest payable on Auction Advances shall be made by the
Administrative Agent, and all computations of interest pursuant to Section 2.08
shall be made by a Lender, on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or commitment fees are payable.
Each determination by the Administrative Agent (or, in the case of Section 2.08,
by a Lender) of an interest rate hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; provided, however, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent that the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
(f) Notwithstanding anything to the contrary contained herein, any
amount payable by the Borrower hereunder or under any Note that is not paid when
due (whether at stated maturity, by acceleration or otherwise) shall (to the
fullest extent permitted by law) bear interest from the date when due until paid
in full at a rate per annum equal at all times to the Base Rate plus 2%, payable
upon demand.
SECTION 2.15. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Contract Notes shall be made, in accordance with Section
2.14, free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, in the case of each Lender and the
Administrative
20
Agent, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Lender or the Administrative Agent (as
the case may be) is organized or any political subdivision thereof and, in the
case of each Lender, taxes imposed on its income, and franchise taxes imposed on
it, by the jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note to any Lender or
the Administrative Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.15) 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, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies to the extent arising from the execution, delivery or
registration of this Agreement or the Contract Notes (hereinafter referred to as
"Other Taxes").
(c) No Lender may claim or demand payment or reimbursement in respect
of any Taxes or Other Taxes pursuant to this Section 2.15 if such Taxes or Other
Taxes, as the case may be, were imposed solely as the result of a voluntary
change in the location of the jurisdiction of such Lender's Applicable Lending
Office.
(d) The Borrower will indemnify each Lender and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.15) paid by such Lender or the Administrative Agent
(as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. This indemnification shall be
made within 30 days from the date such Lender or the Administrative Agent (as
the case may be) makes written demand therefor.
(e) Prior to the date of the initial Borrowing in the case of each
Bank, and on the date of the Assignment and Acceptance or Additional Lender
Supplement pursuant to which it became a Lender in the case of each other
Lender, and from time to time thereafter within 30 days from the date of request
if requested by the Borrower or the Administrative Agent, each Lender organized
under the laws of a jurisdiction outside the United States shall provide the
Administrative Agent and the Borrower with the forms prescribed by the Internal
Revenue Service of the United States certifying that such Lender is exempt from
United States withholding taxes with respect to all payments to be made to such
Lender hereunder and under the Notes. If for any reason during the term of this
Agreement, any Lender becomes unable to submit the forms referred to above or
the information or representations contained therein are no longer accurate in
any material respect, such Lender shall notify the Administrative Agent and the
Borrower in writing to that effect. Unless the Borrower and the Administrative
Agent have received forms or other documents satisfactory to them indicating
that payments hereunder or under any Note are not subject to United States
withholding tax, the Borrower or the Administrative Agent shall withhold taxes
from such payments at the applicable statutory rate in the case of payments to
or for any Lender organized under the laws of a jurisdiction outside the United
States and no Lender may claim or demand payment or reimbursement for such
withheld taxes pursuant to this Section 2.15.
(f) Any Lender claiming any additional amounts payable pursuant to
this Section 2.15 shall use its best efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts which may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
21
(g) If the Borrower makes any additional payment to any Lender
pursuant to this Section 2.15 in respect of any Taxes or Other Taxes, and such
Lender determines that it has received (i) a refund of such Taxes or Other Taxes
or (ii) a credit against or relief or remission for, or a reduction in the
amount of, any tax or other governmental charge attributable solely to any
deduction or credit for any Taxes or Other Taxes with respect to which it has
received payments under this Section 2.15, such Lender shall, to the extent that
it can do so without prejudice to the retention of such refund, credit, relief,
remission or reduction, pay to the Borrower such amount as such Lender shall
have determined to be attributable to the deduction or withholding of such Taxes
or Other Taxes. If, within one year after the payment of any such amount to the
Borrower, such Lender determines that it was not entitled to such refund,
credit, relief, remission or reduction to the full extent of any payment made
pursuant to the first sentence of this Section 2.15(g), the Borrower shall upon
notice and demand of such Lender promptly repay the amount of such overpayment.
Any determination made by such Lender pursuant to this Section 2.15(g) shall in
the absence of bad faith or manifest error be conclusive, and nothing in this
Section 2.15(g) shall be construed as requiring any Lender to conduct its
business or to arrange or alter in any respect its tax or financial affairs
(except as required by Section 2.15(f)) so that it is entitled to receive such a
refund, credit or reduction or as allowing any person to inspect any records,
including tax returns, of any Lender.
(h) Without prejudice to the survival of any other agreement of the
Borrower or any Lender hereunder, the agreements and obligations of the Borrower
and the Lenders contained in this Section 2.15 shall survive the payment in full
of principal and interest hereunder and under the Notes; provided, that no
Lender shall be entitled to demand any payment under this Section 2.15 more than
one year following the payment to or for the account of such Lender of all other
amounts payable hereunder and under any Note held by such Lender and the
termination of such Lender's Commitment; provided further, however, that the
foregoing proviso shall in no way limit the right of any Lender to demand or
receive any payment under this Section 2.15 to the extent that such payment
relates to the retroactive application of any Taxes or Other Taxes if such
demand is made within one year after the implementation of such Taxes or Other
Taxes.
SECTION 2.16. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Contract Advances made by it (other
than pursuant to Section 2.02(c), 2.08, 2.12, 2.15, 2.17(a) or 8.04(b)) in
excess of its ratable share of payments on account of the Contract Advances
obtained by all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the Contract Advances made by them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them, provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.16 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.17. Extension of Termination Date. (a) Unless the
Termination Date shall have occurred, the Borrower may request the Lenders, by
written notice to the Administrative Agent not more than 90 days and not less
than 60 days prior to the then effective Termination Date, to consent to
extension of the Termination Date to the date which is one year after the then
effective Termination Date (or, if such date is not a Business Day, the next
preceding Business Day). Each Lender shall, in its sole discretion, determine
whether to consent to such request and shall notify the Administrative Agent of
its determination not more than 45 days and not less than 30 days prior to the
then-effective Termination Date. Any Lender which fails to give such notice to
the Administrative Agent shall be deemed to have
22
not consented to such request. If any Lender shall not have consented to such
request 30 days prior to the then effective Termination Date (such Lender being
referred to herein as a "Non-Consenting Lender"), the Administrative Agent shall
promptly so notify the Borrower and the other Lenders, whereupon each other
Lender may, not more than 30 days and not less than 25 days prior to the then
effective Termination Date, revoke any consent to such extension previously
given by such Lender (in which case such Lender shall be deemed a Non-Consenting
Lender). If such request shall have been consented to by the Majority Lenders
(as determined after giving effect to the replacement of any Non-Consenting
Lender pursuant to Section 8.07(h)), the Administrative Agent shall notify the
Borrower and the Lenders in writing of such consent, and such extension shall
become effective upon the delivery by the Borrower to the Administrative Agent
and each Lender, on or prior to the then-effective Termination Date, of (i) a
certificate of a duly authorized officer of the Borrower, dated such date, as to
the accuracy, both before and after giving effect to such proposed extension, of
the representations and warranties set forth in Section 4.01 and as to the
absence, both before and after giving effect to such proposed extension, of any
Event of Default or event that with the giving of notice or the passage of time
or both would constitute an Event of Default, (ii) certified copies of all
corporate and governmental approvals, if any, required to be obtained by the
Borrower in connection with such proposed extension and (iii) an opinion of
counsel to the Borrower (who shall be satisfactory to the Administrative Agent)
as to the matters set forth in Exhibit D, upon giving effect to the extension of
the Termination Date, and such other matters as any Lender, through the
Administrative Agent, may reasonably request, all of the foregoing to be
satisfactory in form and substance to the Administrative Agent. In the event of
any such extension of the Termination Date, the Commitment of each
Non-Consenting Lender that has not been replaced pursuant to Section 8.07(h)
shall be terminated in whole as of such former Termination Date, the aggregate
principal amount of all Advances made by such Non-Consenting Lender, together
with accrued and unpaid interest, commitment fees and auction facility fees, and
all other amounts payable hereunder to or for the account of such Non-Consenting
Lender shall be due and payable on such former Termination Date, and upon such
reduction and payment of such amounts such Non-Consenting Lender shall cease to
be a party to this Agreement.
(b) Upon the effectiveness of any extension of the Termination Date
pursuant to subsection (a) above, each reference in Section 4.01(e) and Exhibit
D to (i) the year-end financial statements of the Borrower, (ii) December 31 of
any year, (iii) the quarter-end financial statements of the Borrower and (iv)
the last day of any fiscal quarter (other than December 31) of any year, shall
be deemed to be amended to be references to (A) the year-end financial
statements of the Borrower included in the Borrower's Annual Report on Form 10-K
most recently delivered to the Lenders pursuant to Section 5.01(b)(iii), (B)
December 31 of the year of the financial statements described in clause (A)
above, (C) the fiscal quarter-end financial statements of the Borrower included
in the Borrower's Quarterly Report on Form 10-Q most recently delivered to the
Lenders pursuant to Section 5.01(b)(ii) and (D) the last day of the fiscal
quarter of the financial statements described in clause (C) above, respectively.
SECTION 2.18. Additional Lenders. (a) For a period of 60 days after
extension of a Termination Date pursuant to Section 2.17(a) that has resulted in
a reduction of the aggregate Commitments of the Lenders, the Borrower may
request that one or more additional banks or other Persons (each, an "Additional
Lender") become party to this Agreement as Lenders and that the aggregate amount
of the Commitments of the Lenders be increased to reflect the Commitments
allocated to each such Additional Lender; provided, that the aggregate
Commitments of the Lenders after giving effect so such increase shall not exceed
the aggregate Commitments of the Lenders immediately prior to such former
Termination Date. Addition of an Additional Lender shall be made only with the
written consent of the Administrative Agent (which consent shall not be
unreasonably withheld or delayed) and with the written consent of the Borrower
(which consent may be granted or withheld in its absolute discretion). Each
Additional Lender must be an Eligible Assignee and, without the consent of the
Administrative Agent, the initial Commitment of each Additional Lender shall not
be less than $5,000,000.
23
(b) Addition of an Additional Lender shall be effected by the
Additional Lender executing and delivering to the Administrative Agent, for its
acceptance and recording in the Register, a duly completed Additional Lender
Supplement in substantially the form of Exhibit G attached hereto. The Borrower
shall execute and deliver to the Administrative Agent for transmittal to such
Additional Lender a Contract Note in substantially the form of Exhibit A-1
attached hereto in the amount of the Commitment of such Additional Lender.
Acceptance by the Administrative Agent of an Additional Lender is subject to the
conditions that the Administrative Agent shall have received, with a counterpart
for each Lender, (i) a certificate of a duly authorized officer of the Borrower,
dated the effective date of such Additional Lender Supplement, as to the
accuracy, both before and after giving effect to such proposed addition, of the
representations and warranties set forth in Section 4.01 and as to the absence,
both before and after giving effect to such proposed extension, of any Event of
Default or event that with the giving of notice or the passage of time or both
would constitute an Event of Default, (ii) certified copies of all corporate and
governmental approvals, if any, required to be obtained by the Borrower in
connection with such proposed addition, (iii) an opinion of counsel to the
Borrower (who shall be satisfactory to the Administrative Agent) as to the
matters set forth in Exhibit D (appropriately modified to include, in addition
to the other matters set forth therein, such Additional Lender Supplement and
the new Contract Note), and such other matters as any Lender, through the
Administrative Agent, may reasonably request, and (iv) such other certificates
and documents as the Administrative Agent may reasonably request, all of the
foregoing to be satisfactory in form and substance to the Administrative Agent.
Upon execution and delivery of the Additional Lender Supplement, acceptance by
the Administrative Agent and recording in the Register, from and after the
effective date specified in such Additional Lender Supplement, such Additional
Lender shall be a party hereto and shall, to the extent of the Commitment
specified in such Additional Lender Supplement, have the rights and obligations
of a Lender hereunder.
(c) If, at the time an Additional Lender is to become party to this
Agreement, the continuing Lenders have any outstanding Contract Advances, such
Additional Lender shall offer to purchase from each continuing Lender, effective
as of the date such Additional Lender becomes party to this Agreement, a portion
of each continuing Lender's outstanding Contract Advances, in such amounts as
will have the result that, immediately after giving effect to such Additional
Lender becoming party to this Agreement and to such purchases, each Lender
(including the Additional Lender) shall share in the outstanding Contract
Advances in the same proportion as their respective Commitments. The Additional
Lender shall offer in writing to purchase the requisite portion of each
continuing Lender's outstanding Contract Advances, at a price equal to the
outstanding principal amount thereof together with accrued and unpaid interest
thereon to the date of purchase, and a continuing Lender shall not unreasonably
decline to accept such offer. Each such purchase shall be made in accordance
with Section 8.07 (with the related Assignment and Acceptance modified, mutatis
mutandis, to reflect that such purchase is not a purchase of any portion of the
Commitment of the continuing Lender). Such purchases shall not be subject to the
provisions of clause (ii) of Section 8.07(a), and the Borrower shall be
responsible for all amounts payable to the Administrative Agent pursuant to
clause (iv) of Section 8.07(a). The Borrower shall pay to each continuing Lender
on demand any amount that would be payable to such continuing Lender pursuant to
Section 8.04(b) (which for this purpose shall be applied as if such assignment
were a prepayment of the Contract Advances assigned by such continuing Lender),
and shall reimburse each continuing Lender on demand for all reasonable fees and
expenses (including reasonable fees and expenses of counsel) incurred by it in
connection with such assignment.
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ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Advances. The obligation
of each Lender to make its initial Advance is subject to the satisfaction, prior
to or concurrently with, the making of such initial Advance, of each of the
following conditions precedent:
(a) Documents and Other Agreements. The Administrative Agent shall
have received on or before the day of the initial Borrowing the following, each
dated the same date, in form and substance satisfactory to the Administrative
Agent and (except for the Notes) with one copy for each Lender:
(i) The Contract Notes payable to the order of each of the
Lenders, respectively;
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving the transactions contemplated by
this Agreement and the Notes, and of all documents evidencing other
necessary corporate action with respect to this Agreement and the
Notes;
(iii) A certificate of the Secretary or an Assistant Secretary of
the Borrower certifying (A) the names and true signatures of the
officers of the Borrower authorized to sign this Agreement and the
Notes and the other documents to be delivered hereunder; (B) that
attached thereto are true and correct copies of the Restated Articles
of Incorporation and the By-laws of the Borrower, in each case in
effect on such date; and (C) that attached thereto are true and
correct copies of all governmental and regulatory authorizations and
approvals required for the due execution, delivery and performance of
this Agreement and the Notes, including, without limitation, the
Securities Certificate filed with the PPUC by the Borrower (the
"Securities Certificate") and the Order of Registration issued by the
PPUC registering the Securities Certificate (the "Order of
Registration");
(iv) Copies of the financial statements referred to in Section
4.01(e);
(v) A certificate signed by either the chief financial officer,
principal accounting officer or treasurer of the Borrower stating that
(A) the representations and warranties contained in Section 4.01 are
correct on and as of the date of such certificate as though made on
and as of such date and (B) no event has occurred and is continuing on
the date of such certificate that constitutes an Event of Default or
would constitute an Event of Default but for the requirement that
notice be given or time elapse or both;
(vi) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
special counsel for the Borrower, substantially in the form of Exhibit
D hereto; and
(vii) A favorable opinion of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP,
counsel for the Documentation Agent, substantially in the form of
Exhibit E hereto.
(b) Termination of Prior Credit Facility. The Administrative Agent
shall have received evidence of (i) the payment in full of all obligations of
the Borrower under the $400,000,000 Credit Agreement, dated as of June 26, 1995,
among the Borrower, the banks named therein, Citibank, N.A., as administrative
agent, and The First National Bank of Chicago, as documentation agent, and (ii)
the termination of the "Commitments" under such agreement.
25
SECTION 3.02. Conditions Precedent to Certain Contract Borrowings. The
obligation of each Lender to make a Contract Advance on the occasion of each
Contract Borrowing (including the initial Contract Borrowing) that would
increase the aggregate amount of Contract Advances outstanding shall be subject
to the further conditions precedent that on the date of such Contract Borrowing
the following statements shall be true, and each of the giving of the applicable
Notice of a Contract Borrowing and the acceptance by the Borrower of the
proceeds of such Contract Borrowing shall constitute a representation and
warranty by the Borrower that on the date of such Contract Borrowing such
statements are true:
(A) The representations and warranties contained in Section 4.01
are correct on and as of the date of such Borrowing, before and after
giving effect to such Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(B) No event has occurred and is continuing, or would result from
such Borrowing or from the application of the proceeds therefrom, that
constitutes an Event of Default or would constitute an Event of
Default but for the requirement that notice be given or time elapse or
both (it being understood for clarification that (i) without limiting
the foregoing, it is a condition of this clause (B) that the Borrower
shall be in compliance with Section 5.01(a)(iv), Section 5.02(a) and
Section 5.02(c) upon giving effect to such Borrowing and (ii) the
conditions of this clause (B) shall apply whether or not the
respective Commitments of the Lenders have been terminated pursuant to
Section 6.01).
SECTION 3.03. Conditions Precedent to Each Auction Borrowing. The
obligation of each Lender that is to make an Auction Advance on the occasion of
an Auction Borrowing (including the initial Auction Borrowing) to make such
Auction Advance as part of such Auction Borrowing is subject to the conditions
precedent that (i) the Administrative Agent shall have received the written
confirmatory Notice of an Auction Borrowing with respect thereto, (ii) on or
before the date of such Auction Borrowing, but prior to such Auction Borrowing,
the Administrative Agent shall have received an Auction Note payable to the
order of such Lender for each of the Auction Advances to be made by such Lender
as part of such Auction Borrowing, in a principal amount equal to the principal
amount of the Auction Advance to be evidenced thereby and otherwise on such
terms as were agreed to for such Auction Advance in accordance with Section
2.03, and (iii) except as otherwise waived in accordance with Section 8.01, on
the date of such Auction Borrowing the following statements shall be true, and
each of the giving of the applicable Notice of an Auction Borrowing and the
acceptance by the Borrower of the proceeds of such Auction Borrowing shall
constitute a representation and warranty by the Borrower that on the date of
such Auction Borrowing such statements are true:
(A) The representations and warranties contained in Section 4.01
are correct on and as of the date of such Borrowing, before and after
giving effect to such Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date, and
(B) No event has occurred and is continuing, or would result from
such Borrowing or from the application of the proceeds therefrom,
which constitutes an Event of Default or which would constitute an
Event of Default but for the requirement that notice be given or time
elapse or both (it being understood for clarification that (i) without
limiting the foregoing, it is a condition of this clause (B) that the
Borrower shall be in compliance with Section 5.01(a)(iv), Section
5.02(a) and Section 5.02(c) upon giving effect to such Borrowing and
(ii) the conditions of this clause (B) shall apply whether or not the
respective Commitments of the Lenders have been terminated pursuant to
Section 6.01).
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized. validly existing and
in good standing under the laws of the Commonwealth of Pennsylvania.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Notes are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, and do not and will not
contravene (i) the Borrower's Restated Articles of Incorporation or By-laws,
(ii) applicable law or (iii) any contractual or legal restriction binding on or
affecting the Borrower or its properties.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by the Borrower of this Agreement or
the Notes except for the filing of the Securities Certificate with, and the
final approval of, and the Order of Registration issued by, the PPUC, which
filing has been duly made and which final approval and Order of Registration
have been duly obtained; such Order of Registration is in full force and effect
and is final; and on and after the date of the initial Borrowing hereunder, the
action of the PPUC registering the Securities Certificate shall no longer be
subject to appeal.
(d) This Agreement is, and the Notes when delivered hereunder will be,
legal, valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms, except as the enforceability
thereof may be limited by equitable principles or bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally.
(e) The consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 1996, and the related statements of income and
retained earnings and of cash flows of the Borrower and its Subsidiaries for the
fiscal year then ended, certified by Coopers & ▇▇▇▇▇▇▇, and the unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as at June 30,
1997 and the related unaudited statements of income for the six-month period
then ended, copies of which have been furnished to each Lender, fairly present
in all material respects (subject, in the case of such balance sheets and
statements of income for the period ended June 30, 1997, to year-end
adjustments) the consolidated financial condition of the Borrower and its
Subsidiaries as at such dates and the consolidated results of the operations of
the Borrower and its Subsidiaries for the periods ended on such dates, all in
accordance with GAAP, and since December 31, 1996, there has been no Material
Adverse Change.
(f) Except as disclosed in the Borrower's Annual, Quarterly or Current
Reports, each as filed with the Securities and Exchange Commission and delivered
to the Lenders (including reports filed prior to the date of execution and
delivery of this Agreement and reports delivered to the Lenders pursuant to
Section 5.01(b)), there is no pending or threatened action, investigation or
proceeding affecting the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator that may reasonably be anticipated to have a
Material Adverse Effect. There is no pending or threatened action or proceeding
against the Borrower or its Subsidiaries that purports to affect the legality,
validity, binding effect or enforceability of this Agreement or any Note.
(g) No proceeds of any Advance have been or will be used directly or
indirectly in connection with the acquisition of in excess of 5% of any class of
equity securities that is registered
27
pursuant to Section 12 of the Exchange Act or any transaction subject to the
requirements of Section 13 or 14 of the Exchange Act.
(h) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System),
and no proceeds of any Advance will be used to purchase or carry any margin
stock or to extend credit to others for the purpose of purchasing or carrying
any margin stock. Not more than 25% of the value of the assets of the Borrower
and its Principal Subsidiaries is represented by margin stock.
(i) The Borrower (i) is exempt from the provisions of the Public
Utility Holding Company Act of 1935, as amended, other than Section 9(a)(2)
thereof, pursuant to Section 3(a)(2) thereof, and (ii) is not an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(j) During the twelve consecutive month period prior to the date of
the execution and delivery of this Agreement and prior to the date of any
Borrowing under this Agreement, no steps have been taken to terminate any Plan,
and no contribution failure by the Borrower or any member of the Controlled
Group has occurred with respect to any Plan. No condition exists or event or
transaction has occurred with respect to any Plan (including any Multiemployer
Plan) which might result in the incurrence by the Borrower or any member of the
Controlled Group of any material liability, fine or penalty.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Note or any amount
payable by the Borrower hereunder shall remain unpaid or any Lender shall have
any Commitment hereunder (except with respect to subsection (a)(iv), which shall
be applicable only as of the date hereof and at any time that any Advance is
outstanding hereunder), the Borrower will, and, in the case of Section 5.01(a),
will cause its Principal Subsidiaries to, unless the Majority Lenders shall
otherwise consent in writing:
(a) Keep Books; Corporate Existence; Maintenance of Properties;
Compliance with Laws; Insurance; Taxes.
(i) keep proper books of record and account, all in accordance
with generally accepted accounting principles;
(ii) subject to Section 5.02(b), preserve and keep in full force
and effect its existence;
(iii) maintain and preserve all of its properties (except such
properties the failure of which to maintain or preserve would not
have, individually or in the aggregate, a Material Adverse Effect)
which are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted;
(iv) comply in all material respects with the requirements of all
applicable laws, rules, regulations and orders (including those of any
governmental authority and including with respect to environmental
matters) to the extent the failure to so comply, individually or in
the aggregate, would have either a Material Adverse Effect or a
material adverse effect on the ability of the Borrower to perform its
obligations under this Agreement and the Notes;
28
(v) maintain insurance with responsible and reputable insurance
companies or associations, or self-insure, as the case may be, in each
case in such amounts and covering such contingencies, casualties and
risks as is customarily carried by or self-insured against by
companies engaged in similar businesses and owning similar properties
in the same general areas in which the Borrower and its Principal
Subsidiaries operate;
(vi) at any reasonable time and from time to time, pursuant to
prior notice delivered to the Borrower, permit any Lender, or any
agents or representatives of any thereof, to examine and, at such
Lender's expense, make copies of, and abstracts from the records and
books of account of, and visit the properties of, the Borrower and any
of its Principal Subsidiaries and to discuss the affairs, finances and
accounts of the Borrower and any of its Subsidiaries with any of their
respective officers; provided, that any non-public information (which
has been identified as such by the Borrower) obtained by any Lender,
or any of their respective agents or representatives pursuant to this
subsection (vi) shall be treated confidentially by such Person;
provided, further, that such Person may disclose such information to
any other party to this Agreement, its examiners, affiliates, outside
auditors, counsel or other professional advisors in connection with
the Agreement or if otherwise required to do so by law or regulatory
process; and
(vii) use the proceeds of the Advances for general corporate
purposes (including, without limitation, the refinancing of its
commercial paper, the repayment of outstanding Advances, and the
making of acquisitions) but in no event for any purpose which would be
contrary to clause (g) or clause (h) of Section 4.01.
(b) Reporting Requirements. Furnish to the Lenders:
(i) as soon as possible, and in any event within 5 Business Days
after the occurrence of each Event of Default or each event which,
with the giving of notice or lapse of time, or both, would constitute
an Event of Default, continuing on the date of such statement, a
statement of an authorized officer of the Borrower setting forth
details of such Event of Default or event and the action which the
Borrower proposes to take with respect thereto;
(ii) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, a copy of the Borrower's Quarterly Report on Form 10-Q filed
with the Securities and Exchange Commission with respect to such
quarter, together with a certificate of an authorized officer of the
Borrower stating that no Event of Default, or event which, with notice
or lapse of time or both, would constitute an Event of Default, has
occurred and is continuing or, if any Event of Default or such event
has occurred and is continuing, a statement as to the nature thereof
and the action which the Borrower proposes to take with respect
thereto;
(iii) as soon as available and in any event within 105 days after
the end of each fiscal year of the Borrower, a copy of the Borrower's
Annual Report on Form 10-K filed with the Securities and Exchange
Commission with respect to such fiscal year, together with a
certificate of an authorized officer of the Borrower stating that no
Event of Default, or event which, with notice of lapse of time or
both, would constitute an Event of Default, has occurred and is
continuing or, if any Event of Default or such event has occurred and
is continuing, a statement as to the nature thereof and the action
which the Borrower proposes to take with respect thereto;
29
(iv) concurrently with the delivery of the annual and quarterly
reports referred to in Sections 5.01(b)(ii) and 5.01(b)(iii), a
compliance certificate in substantially the form set forth in Exhibit
F, duly completed and signed by the Chief Financial Officer, Treasurer
or an Assistant Treasurer of the Borrower;
(v) except as otherwise provided in subsections (ii) and (iii)
above, promptly after the sending or filing thereof, copies of all
reports that the Borrower sends to any of its security holders, and
copies of all Reports on Form 10-K, 10-Q or 8-K, and registration
statements and prospectuses that the Borrower or any of its
Subsidiaries files with the Securities and Exchange Commission or any
national securities exchange (except to the extent that any such
registration statement or prospectus relates solely to the issuance of
securities pursuant to employee or dividend reinvestment plans of the
Borrower or such Subsidiary);
(vi) promptly upon becoming aware of the institution of any steps
by the Borrower or any other Person to terminate any Plan, or the
failure to make a required contribution to any Plan if such failure is
sufficient to give rise to a lien under section 302(f) of ERISA, or
the taking of any action with respect to a Plan which could result in
the requirement that the Borrower furnish a bond or other security to
the PBGC or such Plan, or the occurrence of any event with respect to
any Plan, which could result in the incurrence by the Borrower or any
member of the Controlled Group of any material liability, fine or
penalty; and
(vii) such other information respecting the condition,
operations, business or prospects, financial or otherwise, of the
Borrower or any of its Subsidiaries as any Lender, through the
Administrative Agent, may from time to time reasonably request.
SECTION 5.02. Negative Covenants. So long as any Note or any amount
payable by the Borrower hereunder shall remain unpaid or any Lender shall have
any Commitment hereunder (except with respect to subsection (a), which shall be
applicable only as of the date hereof and at any time any Advance is outstanding
hereunder), the Borrower will not, without the written consent of the Majority
Lenders:
(a) Limitation on Liens. Create, incur, assume or suffer to exist, or
permit any of its Principal Subsidiaries to create, incur, assume or suffer to
exist, any Lien on its respective property, revenues or assets, whether now
owned or hereafter acquired except (i) Liens upon or in any property acquired by
the Borrower or any of its Principal Subsidiaries in the ordinary course of
business to secure the purchase price of such property or to secure any
obligation incurred solely for the purpose of financing the acquisition of such
property, (ii) Liens existing on such property at the time of its acquisition
(other than any such Lien created in contemplation of such acquisition unless
permitted by the preceding clause (i)), (iii) Liens granted under the Mortgage
and "excepted encumbrances" as defined in the Mortgage, (iv) Liens granted in
connection with any financing arrangement for the purchase of nuclear fuel or
the financing of pollution control facilities, limited to the fuel or facilities
so purchased or acquired, (v) Liens arising in connection with sales or
transfers of, or financing secured by, accounts receivable or related contracts,
(vi) Liens securing the Borrower's notes collateralized solely by mortgage bonds
of the Borrower issued under the terms of the Mortgage, (vii) Liens arising in
connection with sale and leaseback transactions, but only to the extent (x) the
proceeds received by the Borrower or such Principal Subsidiary from such sale
shall immediately be applied to retire mortgage bonds of the Borrower issued
under the terms of the Mortgage, or (y) the aggregate purchase price of assets
sold pursuant to such sale and leaseback transactions where such proceeds are
not so applied shall not exceed $1,000,000,000, (viii) Liens granted by a
Special Purpose Subsidiary to secure Nonrecourse Transition Bond Debt of such
Special Purpose Subsidiary, and (ix) Liens, other than those described in
clauses (i) through (viii) of this subsection granted by the Borrower or any of
its Principal Subsidiaries in
30
the ordinary course of business securing Debt of the Borrower and its Principal
Subsidiaries in an amount not to exceed $50,000,000 in the aggregate at any one
time outstanding.
(b) Mergers and Consolidations; Disposition of Assets. Merge with or
into or consolidate with or into, or sell, assign, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) all or substantially
all of its assets (whether now owned or hereafter acquired) to any Person or
permit any Principal Subsidiary to do so, except that (i) the Borrower or any
Principal Subsidiary may merge with or into or consolidate with or transfer
assets to any other Principal Subsidiary, (ii) any Principal Subsidiary may
merge with or into or consolidate with or transfer assets to the Borrower and
(iii) the Borrower may merge with or into or consolidate with or transfer assets
to any other Person; provided in each case, immediately thereafter in giving
effect thereto, no Event of Default or event that would, with the giving of
notice or the passage of time or both constitute an Event of Default shall have
occurred and be continuing and (A) in the case of any such merger, consolidation
or transfer of assets to which the Borrower is a party, either (x) the Borrower
shall be the surviving corporation or (y) the surviving corporation shall be an
Eligible Successor and shall have assumed all of the obligations of the Borrower
under this Agreement and the Notes pursuant to a written instrument in form and
substance satisfactory to the Administrative Agent and (B) subject to clause (A)
above, in the case of any such merger to which a Principal Subsidiary is a
party, a Principal Subsidiary shall be the surviving corporation.
(c) Financial Covenant. Permit Consolidated Adjusted Total Debt to
exceed 65% of Consolidated Adjusted Total Capitalization at any time.
(d) Continuation of Businesses.
(i) Generation Business. (A) Cease to own (through the Borrower
or wholly-owned Subsidiaries) the business of generating electricity,
or (B) reduce the net installed electric generating capacity (summer
rating) of the electricity generation business owned by the Borrower
and its wholly-owned Subsidiaries taken as a whole to less than 7821
Megawatts.
(ii) Distribution, Transmission and Gas Businesses. Cease to own
(directly by the Borrower, and not through Subsidiaries) the business
of distributing electricity to end-users, the business of transmitting
electricity, or the businesses of transmitting and distributing
natural gas, each substantially as conducted by the Borrower as of the
date of this Agreement (and the Borrower warrants that as of the date
of this Agreement substantially all of such businesses conducted by
the Borrower on a consolidated basis, and the assets relating thereto,
are operated and owned by the Borrower directly and not through
Subsidiaries).
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance when
the same becomes due and payable, or interest thereon or any other amount
payable under this Agreement or any of the Notes within three Business Days
after the same becomes due and payable; or
31
(b) Any representation or warranty made by the Borrower herein or by
the Borrower (or any of its officers) pursuant to the terms of this Agreement
shall prove to have been incorrect or misleading in any material respect when
made; or
(c) The Borrower shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5.02, Section 5.01(a)(vii) or Section
5.01(b)(i), or (ii) any other term, covenant or agreement contained in this
Agreement on its part to be performed or observed if the failure to perform or
observe such other term, covenant or agreement shall remain unremedied for 30
days after written notice thereof shall have been given to the Borrower by the
Administrative Agent (which notice shall be given by the Administrative Agent at
the written request of any Lender); or
(d) The Borrower or any Principal Subsidiary shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal amount in excess of $50,000,000 in the aggregate (but excluding Debt
evidenced by the Notes and Nonrecourse Transition Bond Debt) of the Borrower or
such Principal Subsidiary (as the case may be) when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such Debt;
or any other event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt and shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if the effect
of such event or condition is to accelerate, or to permit the acceleration of,
the maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof, other than any acceleration
of any Debt secured by equipment leases or fuel leases of the Borrower or a
Principal Subsidiary as a result of the occurrence of any event requiring a
prepayment (whether or not characterized as such) thereunder, which prepayment
will not result in a Material Adverse Change; or
(e) The Borrower or any Principal Subsidiary (other than a Special
Purpose Subsidiary) shall generally not pay its debts as such debts become due,
or shall admit in writing its inability to pay its debts generally, or shall
make a general assignment for the benefit of creditors; or any proceeding shall
be instituted by or against the Borrower or any Principal Subsidiary (other than
a Special Purpose Subsidiary) seeking to adjudicate it a bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it (but not
instituted by it), either such proceeding shall remain undismissed or unstayed
for a period of 60 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it
or for any substantial part of its property,) shall occur; or the Borrower or
any Principal Subsidiary (other than a Special Purpose Subsidiary) shall take
any corporate action to authorize or to consent to any of the actions set forth
above in this subsection (e); or
(f) One or more judgments or orders for the payment of money in an
aggregate amount exceeding $50,000,000 (excluding any such judgments or orders
which are fully covered by insurance, subject to any customary deductible, and
under which the applicable insurance carrier has acknowledged such full coverage
in writing) shall be rendered against the Borrower or any Principal Subsidiary
and either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of 30 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(g) (i) any Reportable Event that the Majority Lenders determine in
good faith might constitute grounds for the termination of any Plan or for the
appointment by the appropriate United
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ of a trustee to administer a Plan shall have occurred and
be continuing 30 days after written notice to such effect shall have been given
to the Borrower by the Administrative Agent or (ii) any Plan shall be
terminated, or (iii) a Trustee shall be appointed by an appropriate United
States District Court to administer any Plan or (iv) the PBGC shall institute
proceedings to terminate any Plan or to appoint a trustee to administer any
Plan; provided, however that on the date of any event described in clauses (i)
through (iv) above the Unfunded Liabilities of such Plan exceed $20,000,000; or
(h) any "Event of Default" shall occur under the 364-Day Credit
Agreement;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Majority Lenders, by notice to the Borrower,
declare the respective Commitments of the Lenders to be terminated, whereupon
the same shall forthwith terminate, and (ii) shall at the request, or may with
the consent, of the Majority Lenders, by notice to the Borrower, declare the
principal amount outstanding under the Notes, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and payable, whereupon
the principal amount outstanding under the Notes, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to the Borrower or any
Principal Subsidiary under the Federal Bankruptcy Code, (A) the obligation of
each Lender to make Advances shall automatically be terminated and (B) the
principal amount outstanding under the Notes, all such interest and all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender hereby appoints
and authorizes the Administrative Agent to take such action as administrative
agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. Each Lender hereby appoints and
authorizes the Documentation Agent to prepare this Agreement and the Contract
Notes on behalf of the Lenders, provided, that it is hereby understood and
agreed that the Documentation Agent shall not have any responsibilities or
obligations hereunder subsequent to the execution and delivery of this Agreement
by and among the Borrower, the Banks, and the Agents. As to any matters not
expressly provided for by this Agreement (including, without limitation,
enforcement or collection of the Notes), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that the Administrative Agent shall not be required to take
any action which exposes the Administrative Agent to personal liability or which
is contrary to this Agreement or applicable law. The Administrative Agent agrees
to give to each Lender prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement.
SECTION 7.02. Agents' Reliance, Etc. Neither the Administrative Agent
nor the Documentation Agent nor any of their respective directors, officers,
agents or employees shall be liable for any action taken or omitted to be taken
by it or them under or in connection with this Agreement, except for its or
their respective own gross negligence or willful misconduct. Without limitation
of the generality of the foregoing: (i) the Administrative Agent may treat the
payee of any Note as the holder thereof until the Administrative Agent receives
and accepts an Assignment and Acceptance entered into by the Lender which is the
payee of such Note, as assignor, and an Eligible Assignee, as assignee, as
provided in Section 8.07; (ii) the Administrative Agent and the Documentation
Agent each may consult
33
with legal counsel (including counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) neither the Administrative
Agent nor the Documentation Agent makes any warranty or representation to any
Lender and shall not be responsible to any Lender for any statements, warranties
or representations (whether written or oral) made in or in connection with this
Agreement; (iv) neither the Administrative Agent nor the Documentation Agent
shall have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement on the
part of the Borrower or to inspect the property (including the books and
records) of the Borrower; (v) neither the Administrative Agent nor the
Documentation Agent shall be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto; and
(vi) neither the Administrative Agent nor the Documentation Agent shall incur
any liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram, cable or telex) believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 7.03. Agents and Affiliates. With respect to their respective
Commitments, their respective Advances and their respective Notes, each of
Mellon and First Chicago shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though it were not an
Agent; and the term "Lender" or "Lenders" shall, unless otherwise expressly
indicated, include Mellon and First Chicago in their respective individual
capacities. Mellon, First Chicago and their respective affiliates may accept
deposits from, lend money to, act as trustee under indentures of, and generally
engage in any kind of business with, the Borrower, any of its subsidiaries and
any Person who may do business with or own securities of the Borrower or any
such subsidiary, all as if First Chicago was not the Administrative Agent and
Mellon was not the Documentation Agent, as the case may be, and without any duty
to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent, the
Documentation Agent or any other Lender and based on the financial statements
referred to in Section 4.01(e) and such other documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent or the Documentation Agent or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the
Administrative Agent, the Documentation Agent and the Syndication Agents (to the
extent not reimbursed by the Borrower), ratably according to the respective
principal amounts of the Contract Notes then held by each of the Lenders (or if
no Contract Notes are at the time outstanding, ratably according to the
respective amounts of their Commitments), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against any such Agent in any way relating
to or arising out of this Agreement or any action taken or omitted by any such
Agent under this Agreement, provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from such Agent's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender agrees to reimburse each such Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including reasonable counsel fees)
incurred by such Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that such
expenses are reimbursable by the Borrower but for which such Agent is not
reimbursed by the Borrower.
34
SECTION 7.06. Successor Administrative Agent. The Administrative Agent
may resign at any time by giving written notice thereof to the Lenders and the
Borrower and may be removed at any time with or without cause by the Majority
Lenders. Upon any such resignation or removal, the Majority Lenders shall have
the right to appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Majority Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the Majority Lenders'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent,
which shall be a commercial bank described in clause (i) or (ii) of the
definition of "Eligible Assignee" and having a combined capital and surplus of
at least $150,000,000. 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 retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Article VII shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement.
Notwithstanding the foregoing, if no Event of Default, and no event that with
the giving of notice or the passage of time, or both, would constitute an Event
of Default, shall have occurred and be continuing, then no successor
Administrative Agent shall be appointed under this Section 7.06 without the
prior written consent of the Borrower, which consent shall not be unreasonably
withheld or delayed.
SECTION 7.07. Syndication Agents, Co-Agents, Lead Managers and
Arrangers. The titles "Syndication Agent," "Co-Agent," "Lead Manager" and
"Arranger" are purely honorific, and the Syndication Agents, Co-Agents, Lead
Managers and Arrangers shall have no duties or responsibilities in such
capacities.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Contract Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Majority Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders (other than any Lender that is
the Borrower or an Affiliate of the Borrower), do any of the following: (a)
waive any of the conditions specified in Section 3.01 or 3.02, (b) increase the
Commitments of the Lenders or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the Contract Notes or any fees or
other amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Contract Notes or any fees or other amounts
payable hereunder, (e) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Contract Notes, or the number of
Lenders, that shall be required for the Lenders or any of them to take any
action hereunder, or (f) amend this Section 8.01; provided, further, that in
connection with any Auction Borrowing, any waiver of the conditions specified in
clause (iii) of Section 3.03 relating to the representation set forth in
paragraph (A) of Section 3.03 shall be effective if in writing and signed by
each Lender that is to make an Auction Advance in connection with such Auction
Borrowing; and provided, further, that no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent or the Documentation
Agent (as the case may be), in addition to the Lenders required above to take
such action, affect the rights or duties of the Administrative Agent or the
Documentation Agent (as the case may be) under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and
35
mailed, telecopied, telegraphed, telexed, cabled or delivered, if to the
Borrower, at its address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Vice President-Finance and Treasurer, S21-1, Telecopy: (215)
841-5743; if to any Bank, at its Domestic Lending Office specified opposite its
name on Schedule I hereto; if to any other Lender, at its Domestic Lending
Office specified in the Assignment and Acceptance or Additional Lender
Supplement pursuant to which it became a Lender; and if to the Administrative
Agent, at its address at One First National Plaza, Mail Suite 0634, 1FPN-10,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Telecopy: (312)
732-4840 or, as to each party, at such other address as shall be designated by
such party in a written notice to the other parties. All such notices and
communications shall, when mailed, telecopied, telegraphed, telexed or cabled,
be effective when deposited in the mails, telecopied, delivered to the telegraph
company, confirmed by telex answerback or delivered to the cable company,
respectively, except that notices and communications to the Administrative Agent
pursuant to Article II or VII shall not be effective until received by the
Administrative Agent.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses; Indemnification. (a) The Borrower
agrees to pay on demand all costs and expenses incurred by the Administrative
Agent, the Documentation Agent, the Syndication Agents and the Arrangers in
connection with the preparation, execution, delivery, administration,
syndication, modification and amendment of this Agreement, the Notes and the
other documents to be delivered hereunder, including, without limitation, the
reasonable fees, internal charges and out-of-pocket expenses of counsel
(including, without limitation, in-house counsel) for such Agents with respect
thereto and with respect to advising the such Agents as to their respective
rights and responsibilities under this Agreement. The Borrower further agrees to
pay on demand all costs and expenses, if any (including, without limitation,
counsel fees and expenses of outside counsel and of internal counsel), incurred
by the Administrative Agent, the Documentation Agent and any Lender in
connection with the collection and enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement, the Notes and the other
documents to be delivered hereunder, including, without limitation, reasonable
counsel fees and expenses in connection with the enforcement of rights under
this Section 8.04(a).
(b) If any payment of principal of, or Conversion of, any Adjusted CD
Rate Advance or Eurodollar Rate Advance is made other than on the last day of
the Interest Period for such Contract Advance, as a result of a payment or
Conversion pursuant to Section 2.10 or 2.13 or acceleration of the maturity of
the Notes pursuant to Section 6.01 or for any other reason, the Borrower shall,
upon demand by any Lender (with a copy of such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such Lender any
amounts required to compensate such Lender for any additional losses, costs or
expenses which it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss, cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
any Lender to fund or maintain such Contract Advance.
(c) The Borrower hereby agrees to indemnify and hold each Lender, each
Agent and each of their respective Affiliates, officers, directors and employees
(each, an "Indemnified Person") harmless from and against any and all claims,
damages, losses, liabilities, costs or expenses (including reasonable attorney's
fees and expenses, whether or not such Indemnified Person is named as a party to
any proceeding or is otherwise subjected to judicial or legal process arising
from any such proceeding) that any of them may pay or incur arising out of or
relating to this Agreement, the Notes or the transactions contemplated thereby,
or the use by the Borrower or any of its subsidiaries of the proceeds of any
Advance, provided that the Borrower shall not be liable for any portion of such
claims, damages,
36
losses, liabilities, costs or expenses resulting from such Indemnified Person's
gross negligence or willful misconduct. The Borrower's obligations under this
Section 8.04(c) shall survive the repayment of all amounts owing to the Lenders
and the Administrative Agent under this Agreement and the Notes and the
termination of the Commitments. If and to the extent that the obligations of the
Borrower under this Section 8.04(c) are unenforceable for any reason, the
Borrower agrees to make the maximum contribution to the payment and satisfaction
thereof which is permissible under applicable law.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and
any Note held by such Lender, whether or not such Lender shall have made any
demand under this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any such
set-off and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of each Lender under this Section 8.05 are in addition to other rights
and remedies (including, without limitation, other rights of set-off) that such
Lender may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Agents and when the
Administrative Agent shall have been notified by each Bank that such Bank has
executed it and thereafter shall be binding upon and inure to the benefit of the
Borrower, the Agents and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender may,
with the prior written consent of the Borrower and the Administrative Agent
(neither of which consents shall be unreasonably withheld or delayed), and if
demanded by the Borrower pursuant to subsection (h) hereof shall to the extent
required by such subsection (h), assign to one or more banks or other entities
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Contract Advances
owing to it and the Contract Note or Notes held by it); provided, however, that
(i) each such assignment shall be of a constant, and not a varying, percentage
of all of the assigning Lender's rights and obligations under this Agreement
(other than any Auction Advances or Auction Notes), (ii) the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 or, if
less, the entire amount of such Lender's Commitment, and shall be an integral
multiple of $1,000,000 or such Lender's entire Commitment, (iii) each such
assignment shall be to an Eligible Assignee, and (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Contract Note or Notes subject to such assignment and a processing and
recordation fee of $3,500 (which shall be payable by one or more of the parties
to the Assignment and Acceptance, and not by the Borrower, and shall not be
payable if the assignee is a Bank, any Affiliate of any Bank or the Federal
Reserve Bank). Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
37
Notwithstanding anything contained in this Section 8.07(a) to the contrary, (A)
the consent of the Borrower and the Administrative Agent shall not be required
with respect to any assignment by any Lender to an Affiliate of such Lender or
to another Lender and (B) any Lender may at any time, without the consent of the
Borrower or the Administrative Agent, and without any requirement to have an
Assignment and Acceptance executed, assign all or any part of its rights under
this Agreement and its Notes to a Federal Reserve Bank, provided that such
assignment does not release the transferor Lender from any of its obligations
hereunder.
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01(e) and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Administrative Agent or the Documentation Agent, such
assigning Lender 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; (v) such assignee
confirms that it is an Eligible Assignee; (vi) such assignee appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to
in Section 8.02 a copy of each Assignment and Acceptance and each Additional
Lender Supplement delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Contract Advances owing to, each Lender from time to
time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Contract Note or Notes subject to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit C hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered
Contract Note or Notes a new Contract Note to the order of such Eligible
Assignee in an amount equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a Commitment
hereunder, a new Contract Note to the order of the assigning Lender in an amount
equal to the Commitment retained by it hereunder. Such new Contract Note or
Notes shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Contract Note or Notes, shall be dated the effective
date of such Assignment and Acceptance and shall otherwise be in substantially
the form of Exhibit A-1 hereto.
38
(e) Each Lender may assign to one or more Eligible Assignees any
Auction Note or Notes held by it.
(f) Each Lender may sell participations to one or more banks or other
entities (each, a "Participant") in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it and the Note or Notes held
by it); provided, however, that (i) such Lender's obligations under this
Agreement (including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
(v) such Lender shall retain the sole right to approve, without the consent of
any Participant, any amendment, modification or waiver of any provision of this
Agreement or the Note or Notes held by such Lender, other than any such
amendment, modification or waiver with respect to any Advance or Commitment in
which such Participant has an interest that forgives principal, interest or fees
or reduces the interest rate or fees payable with respect to any such Advance or
Commitment, postpones any date fixed for any regularly scheduled payment of
principal of, or interest or fees on, any such Advance or Commitment, releases
any guarantor of any such Advance or releases any substantial portion of
collateral, if any, securing any such Advance.
(g) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 8.07, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower furnished to such Lender by or on behalf of
the Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any confidential information relating to the Borrower
received by it from such Lender (subject to customary exceptions regarding
regulatory requirements, compliance with legal process and other requirements of
law).
(h) If (i) any Lender shall make demand for payment under Section
2.12(a), 2.12(b) or 2.15, or (ii) shall deliver any notice to the Administrative
Agent pursuant to Section 2.13 resulting in the suspension of certain
obligations of the Lenders with respect to Eurodollar Rate Advances or (iii)
shall fail to consent to, or shall revoke its consent to, the extension of any
Termination Date pursuant to Section 2.17 or (iv) shall fail to consent to, or
shall revoke its consent to, any extension of the "Termination Date" (as defined
in the 364-Day Credit Agreement) requested by the Borrower pursuant to Section
2.17 of the 364-Day Credit Agreement as originally constituted (or any successor
provision of similar import), then (in the case of clause (i)) within 60 days
after such demand (if, but only if, such payment demanded under Section 2.12(a),
2.12(b) or 2.15 has been made by the Borrower), or (in the case of clause (ii))
within 60 days after such notice (if such suspension is still in effect), or (in
the case of clauses (iii) and (iv)) no later than 10 days prior to the then
effective Termination Date, as the case may be, the Borrower may demand that
such Lender assign in accordance with this Section 8.07 to one or more Eligible
Assignees designated by the Borrower and reasonably acceptable to the
Administrative Agent all (but not less than all) of such Lender's Commitment and
the Advances owing to it within the next succeeding 30 days (in the case of
clause (i) or clause (ii)), or within the next succeeding 5 days (in the case of
clauses (iii) and (iv)) . If any such Eligible Assignee designated by the
Borrower shall fail to consummate such assignment on terms acceptable to such
Lender, or if the Borrower shall fail to designate any such Eligible Assignee
for all of such Lender's Commitment or Advances, then such Lender may (but shall
not be required to) assign such Commitment and Advances to any other Eligible
Assignee in accordance with this Section 8.07 during such period.
SECTION 8.08. Governing Law. THIS AGREEMENT AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA.
39
SECTION 8.09. Consent to Jurisdiction. THE BORROWER HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE COMMONWEALTH OF
PENNSYLVANIA AND ANY UNITED STATES DISTRICT COURT SITTING IN THE COMMONWEALTH OF
PENNSYLVANIA IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE NOTES 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 ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE
BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
SECTION 8.10. Execution in Counterparts; Integration. This Agreement
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes all prior and contemporaneous agreements
and understandings, oral or written, relating to the subject matter hereof.
[Remainder of the page intentionally left blank]
40
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
[SEAL] PECO ENERGY COMPANY
/s/▇▇▇▇ ▇. ▇▇▇▇▇▇ By /s/▇. ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Assistant Secretary Title: Vice President - Finance and Treasurer
MELLON BANK, N.A.,
as Documentation Agent, Arranger and
Syndication Agent
By /s/▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
By /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Agent
FIRST CHICAGO CAPITAL MARKETS, INC.,
as Arranger and Syndication Agent
By /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President/Senior Banker
CITICORP SECURITIES, INC.,
as Syndication Agent
By /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
41
THE BANKS
Commitment
$37,500,000
THE FIRST NATIONAL BANK OF CHICAGO, as
Administrative Agent and as Bank
By /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Agent
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
42
Commitment
$37,500,000
CITIBANK, N.A., as Bank
By /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
43
Commitment
$37,500,000
MELLON BANK, N.A., as Documentation Agent,
as Syndication Agent, as Arranger and as
Bank
By /s/▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
44
Commitment
$25,000,000
THE BANK OF NEW YORK, as Co-Agent and as
Bank
By /s/▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
45
Commitment
$25,000,000
THE CHASE MANHATTAN BANK, as Co-Agent and
as Bank
By /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
46
Commitment
$25,000,000
CORESTATES BANK, N.A., as Co-Agent and as
Bank
By /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
47
Commitment
$25,000,000
FIRST UNION NATIONAL BANK, as Co-Agent and
as Bank
By /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
48
Commitment
$25,000,000
THE TOKAI BANK, LIMITED, NEW YORK BRANCH,
as Co-Agent and as Bank
By /s/▇▇▇▇▇ ▇▇▇
Name: ▇▇▇▇▇ ▇▇▇
Title: Assistant General Manager
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
49
Commitment
$25,000,000
TORONTO DOMINION (NEW YORK), INC., as
Co-Agent and as Bank
By /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
50
Commitment
$25,000,000
UNION BANK OF CALIFORNIA, N.A., as
Co-Agent and as Bank
By /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
51
Commitment
$17,500,000
THE FUJI BANK, LIMITED, as Lead Manager
and as Bank
By /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President & Manager
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
52
Commitment
$17,500,000
THE INDUSTRIAL BANK OF JAPAN TRUST
COMPANY, as Lead Manager and as Bank
By /s/▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Deputy General Manager
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
53
Commitment
$17,500,000
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
as Lead Manager and as Bank
By /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
54
Commitment
$17,500,000
SUMMIT BANK, as Lead Manager and as Bank
By /s/▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Large Corporate
Bank, Summit Bank
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
55
Commitment
$12,500,000
BANK OF MONTREAL, as Bank
By /s/▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
56
Commitment
$12,500,000
BANKERS TRUST COMPANY, as Bank
By /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
57
Commitment
$12,500,000
DEUTSCHE BANK AG, NEW YORK BRANCH, as Bank
By /s/▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
DEUTSCHE BANK AG, CAYMAN ISLAND BRANCH, as
Bank
By /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
58
Commitment
$12,500,000
THE LONG-TERM CREDIT BANK OF JAPAN, as Bank
By /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Deputy General Manager
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
59
Commitment
$12,500,000
THE TOYO TRUST & BANKING CO., LTD., as Bank
By /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
60
Commitment
$12,500,000
UNION BANK OF SWITZERLAND, NEW YORK
BRANCH, as Bank
By /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
UNION BANK OF SWITZERLAND, NEW YORK
BRANCH, as Bank
By /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
61
Commitment
$10,000,000
BANK HAPOALIM B.M., as Bank
By /s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
By /s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: First Vice President & Branch
Manager
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
62
Commitment
$7,500,000
ABU DHABI INTERNATIONAL BANK INC., as Bank
By /s/▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
By /s/▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
This is a signature page to the Revolving Credit Agreement, dated as of October
7, 1997, among PECO Energy Company, as Borrower, the banks named therein, as
Banks, certain Banks specified therein, as Lead Managers, certain Banks
specified therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon
Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First Chicago
Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National
Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent.
63
SCHEDULE I
Revolving Credit Agreement, dated as of October 7, 1997, among PECO Energy
Company, as Borrower, the banks named therein, as Banks, certain Banks specified
therein, as Lead Managers, certain Banks specified therein, as Co-Agents, First
Chicago Capital Markets, Inc. , Mellon Bank, N.A. and CitiCorp Securities, Inc.,
as Syndication Agents, First Chicago Capital Markets, Inc. and Mellon Bank,
N.A., as Arrangers, The First National Bank of Chicago, as Administrative Agent,
and Mellon Bank, N.A., as Documentation Agent.
Domestic CD Lending Eurodollar
Name of Bank Lending Office Office Lending Office
Union Bank of Energy Capital Services same same
California, N.A. ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Abu Dhabi International Bank Inc. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. same same
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
CoreStates Bank, N.A. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ same same
FC 1-8-11-28
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Deutsche Bank A.G., New York ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ same same
Branch and/or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Branch Attn: ▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
First Union National Bank One First Union Center same same
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Chase Manhattan Bank One Chase Manhattan Plaza same same
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Domestic CD Lending Eurodollar
Name of Bank Lending Office Office Lending Office
Mellon Bank, N.A. Three Mellon Bank Center Room 2303 same same
(Loan Administration)
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇, 2028
The Industrial Bank of Japan 1251 Avenue of the Americas same same
Trust Company ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Credit Administration
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ (▇▇▇), Inc. same
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: Senior Dealer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Bank Hapoalim B.M. Commercial Loan & Documentation same same
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Tokai Bank, Limited, New ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ same same
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Union Bank of Switzerland New York Branch same same
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Loan Servicing Group
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Long-Term Credit Bank of One Liberty Plaza same same
Japan ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ Pacitici
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
2
Domestic CD Lending Eurodollar
Name of Bank Lending Office Office Lending Office
The Toyo Trust & Banking Co., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ same same
Ltd. ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇, ext.287
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Fuji Bank, Limited Two World Trade Center same same
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of Montreal ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ same same
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Summit Bank ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ same same
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ Swiss
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of New York One ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ same same
Energy Industries Division
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
First National Bank of Chicago One First National Plaza same same
Mail ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇-▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Bankers Trust Company ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ same same
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
3
Domestic CD Lending Eurodollar
Name of Bank Lending Office Office Lending Office
▇▇▇▇▇▇ Guaranty and Trust ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ same Nassau Bahamas Office
Company of ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ c/o ▇.▇. ▇▇▇▇▇▇ Services,
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
Credit Administrator Loan Operations, 3rd Floor
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Loan Department
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Citibank, N.A. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ same same
▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
4
EXHIBIT A-1
FORM OF CONTRACT NOTE
$____________________ Dated: October 7, 1997
FOR VALUE RECEIVED, the undersigned, PECO Energy Company, a
Pennsylvania corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order
of (the "Lender") for the account of its Applicable Lending Office (such term
and other capitalized terms herein being used as defined in the Credit Agreement
referred to below) on the Termination Date the principal sum of U.S.$[amount of
the Lender's Commitment in figures] or, if less, the aggregate principal amount
of the Contract Advances made by the Lender to the Borrower pursuant to the
Credit Agreement outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal amount
of each Contract Advance from the date of such Contract Advance until such
principal amount is paid in full, at such interest rates, and payable at such
times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to The First National Bank of Chicago, as Administrative
Agent, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in same day funds.
Each Contract Advance made by the Lender to the Borrower pursuant to the Credit
Agreement, and all payments made on account of principal thereof, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Contract Notes referred to in, and
is entitled to the benefits of, the Revolving Credit Agreement, dated as of
October 7, 1997, among PECO Energy Company, as Borrower, the banks named
therein, as Banks, certain Banks specified therein, as Lead Managers, certain
Banks specified therein, as Co-Agents, First Chicago Capital Markets, Inc.,
Mellon Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First
Chicago Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First
National Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent (as amended, modified or supplemented from time to time, the
"Credit Agreement"). The Credit Agreement, among other things, (i) provides for
the making of Contract Advances by the Lender to the Borrower from time to time
in an aggregate amount not to exceed at any time outstanding the U.S. dollar
amount first above mentioned, the indebtedness of the Borrower resulting from
each such Contract Advance being evidenced by this Promissory Note, and (ii)
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA.
PECO ENERGY COMPANY
By
Name:
Title:
ADVANCES, MATURITIES, AND PAYMENTS OF PRINCIPAL
Amount of
Maturity Principal Unpaid
Amount of of Paid or Principal Notation
Date Advance Advance Prepaid Balance Made By
EXHIBIT A-2
FORM OF AUCTION NOTE
$_________________________ Dated: _________, 19___
FOR VALUE RECEIVED, the undersigned, PECO Energy Company, a
Pennsylvania corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order
of (the "Lender") for the account of its Applicable Lending Office (as defined
in the Credit Agreement referred to below), on , 19 , the principal amount of
Dollars ($ ).
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: % per annum (calculated on the basis of a year of days
for the actual number of days elapsed).
Interest Payment Date or Dates:
Both principal and interest are payable in lawful money of the United
States of America to or the account of the Lender at the office of The First
National Bank of Chicago, as Administrative Agent, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in same day funds, free and clear of and without any
deduction, with respect to the payee named above, for any and all present and
future taxes, deductions, charges or withholdings (other than United States
withholding taxes, if applicable), and all liabilities with respect thereto.
This Promissory Note is one of the Auction Notes referred to in, and
is entitled to the benefits of, the Revolving Credit Agreement, dated as of
October 7, 1997, among PECO Energy Company, as Borrower, the banks named
therein, as Banks, certain Banks specified therein, as Lead Managers, certain
Banks specified therein, as Co-Agents, First Chicago Capital Markets, Inc.,
Mellon Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First
Chicago Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First
National Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent (as amended, modified or supplemented from time to time, the
"Credit Agreement"). The Credit Agreement, among other things, contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA.
PECO ENERGY COMPANY
By
Name:
Title:
2
EXHIBIT B-1
NOTICE OF A CONTRACT BORROWING
The First National Bank of Chicago, as Administrative Agent for the Lenders
parties to the Credit Agreement referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Date]
Attention: Utilities Department
North American Finance Group
Ladies and Gentlemen:
The undersigned, PECO Energy Company, refers to the Revolving Credit
Agreement, dated as of October 7, 1997, among PECO Energy Company, as Borrower,
the banks named therein, as Banks, certain Banks specified therein, as Lead
Managers, certain Banks specified therein, as Co-Agents, First Chicago Capital
Markets, Inc., Mellon Bank, N.A. and CitiCorp Securities, Inc., as Syndication
Agents, First Chicago Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers,
The First National Bank of Chicago, as Administrative Agent, and Mellon Bank,
N.A., as Documentation Agent (as amended, modified or supplemented from time to
time, the "Credit Agreement"), and hereby gives you notice, irrevocably,
pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby
requests a Contract Borrowing under the Credit Agreement, and in that connection
sets forth below the information relating to such Contract Borrowing (the
"Proposed Contract Borrowing") as required by Section 2.02(a) of the Credit
Agreement:
(i) The Business Day of the Proposed Contract Borrowing is , 19 .
(ii) The Type of Contract Advances to be made in connection with
the Proposed Contract Borrowing is [Adjusted CD Rate Advances] [Base
Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Contract Borrowing is
$________________.
(iv) The Interest Period for each Contract Advance made as part
of the Proposed Contract Borrowing is [ days] [ month[s]].
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Contract
Borrowing:
(A) the representations and warranties contained in Section 4.01
are correct, before and after giving effect to the Proposed Contract
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date; and
(B) no event has occurred and is continuing, or would result from
such Proposed Contract Borrowing or from the application of the
proceeds therefrom, that
constitutes an Event of Default or would constitute an Event of
Default but for the requirement that notice be given or time elapse or
both.
Very truly yours,
PECO ENERGY COMPANY
By
Name:
Title:
2
EXHIBIT B-2
NOTICE OF AN AUCTION BORROWING
The First National Bank of Chicago, as Administrative Agent, for the Lenders
parties to the Credit Agreement referred to below
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Date]
Attention: Utilities Department
North American Finance Group
Ladies and Gentlemen:
The undersigned, PECO Energy Company, refers to the Revolving Credit
Agreement, dated as of October 7, 1997, among PECO Energy Company, as Borrower,
the banks named therein, as Banks, certain Banks specified therein, as Lead
Managers, certain Banks specified therein, as Co-Agents, First Chicago Capital
Markets, Inc., Mellon Bank, N.A. and CitiCorp Securities, Inc., as Syndication
Agents, First Chicago Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers,
The First National Bank of Chicago, as Administrative Agent, and Mellon Bank,
N.A., as Documentation Agent (as amended, modified or supplemented from time to
time, the "Credit Agreement"), and hereby gives you notice pursuant to Section
2.03 of the Credit Agreement that the undersigned hereby requests an Auction
Borrowing under the Credit Agreement, and in that connection sets forth the
terms on which such Auction Borrowing (the "Proposed Auction Borrowing") is
requested to be made:
(A) Date of Auction Borrowing ______
(B) Amount of Auction Borrowing ______
(C) Maturity Date ______
(D) Interest Payment Date(s) ______
(E) ______ ______
(F) ______ ______
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Auction
Borrowing:
(a) the representations and warranties contained in Section 4.01
are correct, before and after giving effect to the Proposed Auction
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date:
(b) no event has occurred and is continuing, or would result from
the Proposed Auction Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or would constitute
an Event of Default but for the requirement that notice be given or
time elapse or both; and
(c) the aggregate amount of the Proposed Auction Borrowing and
all other Borrowings to be made on the same day under the Credit
Agreement is within the aggregate amount of the unused Commitments of
the Lenders.
The undersigned hereby confirms that the Proposed Auction Borrowing is
to be made available to it in accordance with Section 2.03(a)(v) of the Credit
Agreement.
Very truly yours,
PECO ENERGY COMPANY
By
Name:
Title:
2
EXHIBIT C
ASSIGNMENT AND ACCEPTANCE
Dated ___________, 19___
Reference is made to the Revolving Credit Agreement, dated as of
October 7, 1997, among PECO Energy Company, as Borrower, the banks named
therein, as Banks, certain Banks specified therein, as Lead Managers, certain
Banks specified therein, as Co-Agents, First Chicago Capital Markets, Inc.,
Mellon Bank, N.A. and CitiCorp Securities, Inc., as Syndication Agents, First
Chicago Capital Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First
National Bank of Chicago, as Administrative Agent, and Mellon Bank, N.A., as
Documentation Agent (as amended, modified or supplemented from time to time, the
"Credit Agreement"). Terms defined in the Credit Agreement are used herein with
the same meaning.
_________________ (the "Assignor") and _______________ (the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, that interest in and to
all of the Assignor's rights and obligations under the Credit Agreement as of
the date hereof (other than in respect of Auction Advances and Auction Notes)
which represents the percentage interest specified on Schedule 1 of all
outstanding rights and obligations under the Credit Agreement (other than in
aspect of Auction Advances and Auction Notes), including, without limitation,
such interest in the Assignor's Commitment, the Contract Advances owing to the
Assignor, and the Contract Note[s] held by the Assignor. After giving effect to
such sale and assignment, the Assignee's Commitment and the amount of the
Contract Advances owing to the Assignee will be as set forth in Section 2 of
Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Contract Note[s] referred to in paragraph 1 above and
requests that the Administrative Agent exchange such Contract Note[s] for a new
Contract Note payable to the order of the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto or new Contract Notes payable
to the order of the Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto and the Assignor in an amount equal to the Commitment
retained by the Assignor under the Credit Agreement, respectively as specified
on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Documentation Agent, the Assignor or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iii) confirms that it is an
Eligible Assignee; (iv) appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender; (vi) none of the
consideration used to make the purchase being made by the Assignee hereunder are
"plan assets" as defined under ERISA and the rights and interests of the
Assignee in and under the Credit Agreement will not be "plan assets" under ERISA
[and] (vii) specifies as its CD Lending Office, Domestic Lending Office (and
address for notices) and Eurodollar Lending Office the offices set forth beneath
its name on the signature pages hereof [and (viii) attaches the forms prescribed
by the Internal Revenue Service of the United States certifying that it is
exempt from United States withholding taxes with respect to all payments to be
made to the Assignee under the Credit Agreement and the Notes].(1)
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent. The effective date of this
Assignment and Acceptance shall be the date of acceptance thereof by the
Administrative Agent, unless otherwise specified on Schedule 1 hereto (the
"Effective Date").
5. Upon such acceptance and recording by the Administrative Agent, as
of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment and Acceptance, have the rights
and obligations of a Lender thereunder and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent,
from and after the Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement and the Contract Notes in respect of the
interest assigned hereby (including, without limitation, all payments of
principal, interest and commitment fees with respect thereto) to the Assignee.
The Assignor and Assignee shall make all appropriate adjustments in payments
under the Credit Agreement and the Contract Notes for periods prior to the
Effective Date directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA.
______________
(1) If the Assignee is organized under the laws of a jurisdiction outside the
United States.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
[NAME OF ASSIGNOR]
By
Name:
Title:
[NAME OF ASSIGNEE]
By
Name:
Title:
CD Lending Office:
[Address]
Domestic Lending
Office (and address
for notices):
[Address]
Eurodollar Lending Office:
[Address]
Consented to this ____________ day
of __________________, 19___
PECO ENERGY COMPANY
By
Name:
Title:
Consented to and Accepted this ______________ day
of ___________________, 19___
[NAME OF ADMINISTRATIVE AGENT]
By
Name:
Title:
3
Schedule 1
to
Assignment and Acceptance
Dated ______________, 19___
Section 1.
Percentage Interest: ___%
Section 2.
Assignee's Commitment: $_____
Aggregate Outstanding Principal
Amount of Contract Advances
owing to the Assignee: $_____
A Contract Note payable to the
order of the Assignee
Dated: _________, 19___
Principal amount: $______
A Contract Note payable to the
order of the Assignor
Dated: __________, 19___
Principal amount: $______
Section 3.
Effective Date(2): _____________, 19___
________________
(2) This date should be no earlier than the date of acceptance by the
Administrative Agent.
EXHIBIT D
FORM OF OPINION OF ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
________________, 19___
To each of the Banks, the Administrative Agent,
the Documentation Agent, the Syndication Agents,
the Arrangers, the Co-Agents and the Lead Managers
party to the Revolving Credit Agreement, dated as
of October 7, 1997, among PECO Energy Company, as
Borrower, the banks named therein, as Banks,
certain Banks specified therein, as Lead Managers,
certain Banks specified therein, as Co-Agents,
First Chicago Capital Markets, Inc., Mellon Bank,
N.A. and CitiCorp Securities, Inc., as Syndication
Agents, First Chicago Capital Markets, Inc. and
Mellon Bank, N.A., as Arrangers, The First
National Bank of Chicago, as Administrative Agent,
and Mellon Bank, N.A., as Documentation Agent
Re: PECO Energy Company
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(a)(vi) of
the Revolving Credit Agreement, dated as of October 7, 1997, among PECO Energy
Company, as Borrower, the banks named therein, as Banks, certain Banks specified
therein, as Lead Managers, certain Banks specified therein, as Co-Agents, First
Chicago Capital Markets, Inc., Mellon Bank, N.A. and CitiCorp Securities, Inc.,
as Syndication Agents, First Chicago Capital Markets, Inc. and Mellon Bank,
N.A., as Arrangers, The First National Bank of Chicago, as Administrative Agent,
and Mellon Bank, N.A., as Documentation Agent (as amended, modified or
supplemented from time to time, the "Credit Agreement"). Unless otherwise
specified, terms defined in the Credit Agreement are used herein as therein
defined.
We have acted as special counsel for the Borrower in connection with
the preparation, execution and delivery of the Credit Agreement. In that
capacity we have examined the following:
(i) The Credit Agreement, the Contract Notes and the form of the
Auction Notes to be delivered in connection with Auction Borrowings;
(ii) The documents furnished by the Borrower pursuant to Section
3.01 of the Credit Agreement;
(iii) The Amended and Restated Articles of Incorporation of the
Borrower and all amendments thereto (the "Charter");
(iv) The by-laws of the Borrower and all amendments thereto (the
"By-laws"); and
(v) A certificate of the Secretary of State of the Commonwealth
of Pennsylvania, dated , 19 , attesting to the continued subsistence
of the Borrower in Pennsylvania.
We have also examined the originals, or copies certified to our
satisfaction, of such other corporate records of the Borrower, certificates of
public officials and of officers of the Borrower, and agreements, instruments
and documents, as we have deemed necessary as a basis for the opinions
hereinafter expressed. We have assumed the legal capacity and competence of
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity to original documents
of documents submitted to us as certified, conformed or photostatic copies. We
have assumed that the Agents and the Banks have duly executed and delivered,
with all necessary power and authority (corporate and otherwise), the Credit
Agreement. We have further assumed that the Auction Notes, when delivered under
the Credit Agreement, will be duly executed by the Borrower.
When an opinion or confirmation is given to our knowledge or with
reference to matters of which we are aware or which are known to us, or with
another similar qualification, the relevant knowledge or awareness is limited to
the actual knowledge or awareness of the lawyer who is the current primary
contact for the Borrower and the individual lawyers in this firm who have
participated in the specific transaction to which this opinion relates and
without any special or additional investigation undertaken for the purposes of
this opinion, except as otherwise noted herein. Based upon the foregoing and
subject to the exceptions, limitations and qualifications set forth herein, we
are of the following opinion:
1. The Borrower is a corporation duly incorporated and validly
subsisting under the laws of the Commonwealth of Pennsylvania.
2. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action,
do not contravene (i) the Charter or the By-laws or (ii) any law of
the United States or the Commonwealth of Pennsylvania (including,
without limitation, any order, rule or regulation of the PPUC or (iii)
to the best of our knowledge, any agreement or instrument to which the
Borrower is a party or by which it is bound, and do not result in or
require the creation of any lien, security interest or other charge or
encumbrance upon or with respect to any of its properties.
3. No authorization, approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body of
the United States or the Commonwealth of Pennsylvania is required for
the due execution, delivery and performance by the Borrower of the
Credit Agreement or the Notes except for the filing of the Securities
Certificate with, and the final approval of, and the Order of
Registration issued by, the PPUC, which filing has been duly made and
which final approval and Order of Registration have been duly
obtained; such Order of Registration is in full force and effect and
is final; and the action of the PPUC registering the Securities
Certificate is no longer subject to appeal.
4. The Credit Agreement and the Contract Notes have been duly
executed and delivered by the Borrower, and the Credit Agreement and
the Contract Notes are, and the Auction Notes, when executed and
delivered hereunder will be, the legal, valid and binding obligations
of the Borrower enforceable against the Borrower in accordance with
their respective terms.
5. The Borrower (i) is exempt from the provisions of the Public
Utility Holding Company Act of 1935, as amended, other than Section
9(a)(2) thereof, pursuant
2
to Section 3(a)(2) thereof, and (ii) is not an "investment company" or
a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
6. We confirm to you that to our knowledge, after inquiry of each
lawyer who is the current primary contact for the Borrower or who has
devoted substantive attention to matters on behalf of the Borrower
during the preceding twelve months and who is still currently employed
by or a member of this firm, except as disclosed in the Borrower's
Annual Report on Form 10-K for the year ended December 31, 1996 and
the Borrower's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997, no litigation or governmental proceeding is pending or
threatened in writing against the Borrower (i) with respect to the
Credit Agreement or the Notes, or (ii) which is likely to have a
material adverse effect upon the financial condition, business,
properties or prospects of the Borrower and its subsidiaries taken as
a whole.
We draw to your attention the existence of the following two
Pennsylvania statutes in connection with the fact that the Contract Advances
bear floating rates of interest:
(i) Section 911 of the Pennsylvania "Crime Code," 18 Pa. C.S.A.
ss.911, enacted by the Act of December 6, 1972, P.L. 1482. Section 911
of the Crime Code bears a close resemblance to certain of the
provisions of the Federal Racketeer Influenced and Corrupt
Organizations Act of 1970, 18 U.S.C. ss.ss.1961-1968, commonly known
as RICO, and is referred to hereinafter as the "Pennsylvania RICO
Act." The Pennsylvania RICO Act provides, among other things, that it
is a criminal offense, punishable as a felony, to "use or invest,
directly or indirectly ... in the acquisition of any interest in, or
the establishment or operation of, any enterprise" any income
collected in full or partial satisfaction of a loan made "at a rate of
interest exceeding 25% per annum... ."
(ii) The Act of December 29, 1982, P.L. 1671, 18 Pa. C.S.A.
ss.4806.1 et seq. (superseded volume) (the "Criminal Usury Statute").
The Criminal Usury Statute provides, among other things, that it is a
criminal offense, punishable as a felony, to engage in, "charging,
taking or receiving any money ... on the loan ... of any money ... at
a rate exceeding thirty-six percent per annum... ."
The Criminal Usury Statute may have been repealed, but the manner in
which the repeal was enacted leaves the matter subject to uncertainty.
Both the Pennsylvania RICO Act and the Criminal Usury Statute appear
to be intended by the legislature to apply only to racketeering and loan
sharking type activities, and not to the type of commercial loan transaction
evidenced by the Loan Document. Nevertheless, in view of the plain language of
the Pennsylvania courts, we cannot say that the ultimate resolution of this
issue is free from doubt.
The foregoing opinions are subject to the following exceptions,
limitations and qualifications:
(a) Our opinion is subject to the effect of applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, fraudulent transfer or similar laws affecting creditors'
rights and remedies generally, general principles of equity, including
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and limitations on
enforceability of rights to indemnification by federal or state
securities laws or regulations or by public policy.
3
(b) We express no opinion as to the application or requirements
of the Pennsylvania Securities Act or federal or state securities,
patent, trademark, copyright, antitrust and unfair competition,
pension or employee benefit, labor, environmental health and safety or
tax laws in respect of the transactions contemplated by or referred to
in the Credit Agreement.
(c) We express no opinion as to the validity or enforceability of
any provision of the Credit Agreement or the Notes which (i) permits
the Lenders to increase the rate of interest in the event of
delinquency or default if such increase would be deemed a penalty
under applicable law; (ii) purports to be a waiver by Borrower of any
right or benefit except to the extent permitted by applicable law;
(iii) purports to require that waivers must be in writing to the
extent that an oral agreement or implied agreement by trade practice
or course of conduct modifying provisions of the Credit Agreement or
the Notes has been made; or (iv) purports to exculpate any party from
its own negligent acts.
We express no opinion as to the law of any jurisdiction other than the
law of the Commonwealth of Pennsylvania and the federal law of the United
States.
The foregoing opinion is solely for your benefit in connection with
the consummation of the transaction described herein and may not be used or
relied upon by you or any other Person without our express written consent for
any other purpose other than (i) any Eligible Assignee that may become a Lender
under the Credit Agreement after the date hereof and (ii) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇ LLP, which may rely upon this opinion in rendering their opinion
furnished pursuant to Article III of the Credit Agreement. The opinions given
herein are as of the date hereof, and we assume no obligation to update or
supplement this opinion to reflect facts or circumstances which may hereafter
come to our attention or any changes in laws which may hereafter occur.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
4
EXHIBIT E
FORM OF OPINION OF ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP
_______________, 19___
To each of the Banks, the Administrative Agent,
the Documentation Agent, the Syndication Agents,
the Arrangers, the Co-Agents and the Lead Managers
party to the Revolving Credit Agreement, dated as
of October 7, 1997, among PECO Energy Company, as
Borrower, the banks named therein, as Banks,
certain Banks specified therein, as Lead Managers,
certain Banks specified therein, as Co-Agents,
First Chicago Capital Markets, Inc., Mellon Bank,
N.A. and CitiCorp Securities, Inc., as Syndication
Agents, First Chicago Capital Markets, Inc. and
Mellon Bank, N.A., as Arrangers, The First
National Bank of Chicago, as Administrative Agent,
and Mellon Bank, N.A., as Documentation Agent
Re: PECO Energy Company
Ladies and Gentlemen:
We have acted as counsel to Mellon Bank, N.A., individually and as
Documentation Agent, in connection with the preparation, execution and delivery
of the Revolving Credit Agreement, dated as of October 7, 1997, among PECO
Energy Company, as Borrower, the banks named therein, as Banks, certain Banks
specified therein, as Lead Managers, certain Banks specified therein, as
Co-Agents, First Chicago Capital Markets, Inc., Mellon Bank, N.A. and CitiCorp
Securities, Inc., as Syndication Agents, First Chicago Capital Markets, Inc. and
Mellon Bank, N.A., as Arrangers, The First National Bank of Chicago, as
Administrative Agent, and Mellon Bank, N.A., as Documentation Agent (as amended,
modified or supplemented from time to time, the "Credit Agreement"). We are
delivering this opinion pursuant to Section 3.01(a)(vii) of the Credit
Agreement. Unless otherwise defined herein, terms defined in the Credit
Agreement are used herein as therein defined.
In that connection, we have examined (i) counterparts of the Credit
Agreement, executed by the Borrower, the Banks, the Administrative Agent, the
Documentation Agent, the Syndication Agents, the Arrangers, the Co-Agents and
the Lead Managers, (ii) the Contract Notes, executed by the Borrower, (iii) the
form of the Auction Notes to be delivered by the Borrower in connection with
Auction Borrowings and (iv) the other documents listed on Exhibit A hereto,
including the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel to the
Borrower (the "Opinion"), furnished to the Administrative Agent pursuant to
Section 3.01(a) of the Credit Agreement.
In our examination of the documents referred to above, we have assumed
the authenticity of all such documents submitted to us as originals, the
genuineness of all signatures, the due authority of the parties executing such
documents and the conformity to the originals of all such documents submitted to
us as copies. We have also assumed that the Banks, the Administrative Agent, the
Documentation Agent, the Syndication Agents, the Arrangers, the Co-Agents and
the Lead Managers have duly executed and delivered, with all necessary power and
authority (corporate and otherwise), the Credit Agreement. As to matters of
fact, we have relied solely upon the documents we have examined.
Based upon the foregoing, we are of the opinion that, while we have
not independently considered the matters covered by the Opinion to the extent
necessary to enable us to express the conclusions stated therein, each of the
Opinion and the other documents listed in Exhibit A hereto are substantially
responsive to the corresponding requirements set forth in Section 3.01 of the
Credit Agreement pursuant to which the same have been delivered.
Please note that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire, a partner in this firm,
is a director of PECO Energy Company. We have rendered and continue to render
legal services to PECO Energy Company.
The foregoing opinion is solely for your benefit and may not be relied
upon by any other Person other than any Person that may become a lender under
the Credit Agreement after the date hereof.
Very truly yours,
KCK:▇▇▇:ARN
2
EXHIBIT F
FORM OF ANNUAL AND QUARTERLY COMPLIANCE CERTIFICATE
______________________, 19__
Pursuant to the Revolving Credit Agreement, dated as of October 7,
1997, among PECO Energy Company, as Borrower, the banks named therein, as Banks,
certain Banks specified therein, as Lead Managers, certain Banks specified
therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon Bank, N.A.
and CitiCorp Securities, Inc., as Syndication Agents, First Chicago Capital
Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National Bank of
Chicago, as Administrative Agent, and Mellon Bank, N.A., as Documentation Agent
(as amended, modified or supplemented from time to time, the "Credit
Agreement"), the undersigned, being ______________________ of the Borrower,
hereby certifies on behalf of the Borrower as follows:
1. Delivered herewith are the financial statements prepared pursuant
to Section 5.01(b)(ii) and Section 5.01(b)(iii) of the Credit Agreement, for the
fiscal ________ ended ___________, 19__. All such financial statements comply
with the applicable requirements of the Credit Agreement.
2. Schedule I hereto sets forth in reasonable detail the information
and calculations necessary to establish compliance with the provisions of
Section 5.02(c) of the Credit Agreement as of the end of the fiscal period
referred to in paragraph 1 above.
3. (Check one and only one:)
No Event of Default, or event which with notice or lapse of time or
both would constitute an Event of Default, has occurred and is continuing or
exists.
An Event of Default, or event which with notice or lapse of time or
both would constitute an Event of Default, has occurred and is continuing or
exists, and the document(s) attached hereto as Schedule II specify in detail the
nature and period of existence of such Event of Default or such other event as
well as any and all actions with respect thereto taken or contemplated to be
taken by the Borrower.
4. The undersigned has personally reviewed the Credit Agreement, and
this certificate was based on an examination made by or under the supervision of
the undersigned sufficient to assure that this certificate is accurate.
5. Capitalized terms used in this certificate and not otherwise
defined shall have the meanings given in the Credit Agreement.
PECO ENERGY COMPANY
By
Name:
Title:
Date:
EXHIBIT G
FORM OF ADDITIONAL LENDER SUPPLEMENT
THIS SUPPLEMENT, dated as of ____________, 19_____, by the undersigned.
Recitals:
A. This Supplement is being executed and delivered in accordance with
Section 2.18 of the Revolving Credit Agreement, dated as of October 7, 1997,
among PECO Energy Company, as Borrower, the banks named therein, as Banks,
certain Banks specified therein, as Lead Managers, certain Banks specified
therein, as Co-Agents, First Chicago Capital Markets, Inc., Mellon Bank, N.A.
and CitiCorp Securities, Inc., as Syndication Agents, First Chicago Capital
Markets, Inc. and Mellon Bank, N.A., as Arrangers, The First National Bank of
Chicago, as Administrative Agent, and Mellon Bank, N.A., as Documentation Agent
(as amended, modified or supplemented from time to time, the "Credit
Agreement"). Capitalized terms used herein without definition have the meanings
specified in the Credit Agreement.
B. The undersigned wishes to become a Lender party to the Credit
Agreement, as an Additional Lender.
NOW, THEREFORE, the undersigned, intending to be legally bound, hereby
agrees as follows:
1. The undersigned hereby becomes party to the Credit Agreement as
Lender thereunder, and shall be subject to and bound by all of the provisions
thereof.
2. The Commitment of the undersigned shall be $_____________.
3. The undersigned (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Additional Lender Supplement; (ii) agrees that it will, independently and
without reliance upon the Administrative Agent, the Documentation Agent or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iii) confirms that it is an
Eligible Assignee; (iv) appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (v) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a
Lender; (vi) none of the consideration used to make the purchase being made by
the undersigned hereunder are "plan assets" as defined under ERISA and the
rights and interests of the undersigned in and under the Credit Agreement will
not be "plan assets" under ERISA [and] (vii) specifies as its CD Lending Office,
Domestic Lending Office (and address for notices) and Eurodollar Lending Office
the offices set forth beneath its name on the signature pages hereof [and (viii)
attaches the forms prescribed by the Internal Revenue Service of the United
States certifying that it
is exempt from United States withholding taxes with respect to all payments to
be made to the undersigned under the Credit Agreement and the Notes].(3)
4. This Supplement shall be effective upon the date of acceptance
thereof by the Administrative Agent, unless otherwise specified under the
undersigned's name signature below.
5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA.
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be
executed and delivered by a duly authorized officer on the date first above
written.
[NAME OF ADDITIONAL LENDER]
By:________________________
Name:______________________
Title:_______________________
CD Lending Office: [Address]
Domestic Lending Office (and
address for notices): [Address]
Eurodollar Lending Office: [Address]
Effective Date(4): ______________, 19___
CONSENTED TO:
[NAME OF ADMINISTRATIVE AGENT]
By:
Name:
Title:
CONSENTED TO:
PECO ENERGY COMPANY
By:
Name:
Title:
_________________
(3) If the undersigned is organized under the laws of a jurisdiction outside
the United States.
(4) This date should be no earlier than the date of acceptance by the
Administrative Agent.