TERM
CREDIT AGREEMENT
among
ATMOS ENERGY CORPORATION
as Borrower,
THE LENDERS IDENTIFIED HEREIN,
AND
BANK OF AMERICA, N.A.,
as Administrative Agent,
BANK ONE, NA,
as Syndication Agent,
and
SOCIETE GENERALE NEW YORK BRANCH,
as Documentation Agent
DATED AS OF AUGUST 3, 2000
BANC OF AMERICA SECURITIES LLC
as Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS 1
1.1 Definitions. 1
1.2 Computation of Time Periods. 16
1.3 Accounting Terms. 16
1.4 Time. 16
SECTION 2. LOANS 17
2.1 Term Loans. 17
2.2 Method of Borrowing for Loans. 17
2.3 Funding of Loans. 17
2.4 Continuations and Conversions. 18
2.5 Minimum Amounts. 19
2.6 Reductions of Term Loan Commitments. 19
2.7 Notes. 19
SECTION 3. PAYMENTS 20
3.1 Interest. 20
3.2 Prepayments. 20
3.3 Payment in full at Maturity. 21
3.4 Fees. 21
3.5 Place and Manner of Payments. 22
3.6 Pro Rata Treatment. 22
3.7 Computations of Interest and Fees. 22
3.8 Sharing of Payments. 23
3.9 Evidence of Debt. 24
SECTION 4. ADDITIONAL PROVISIONS REGARDING LOANS 25
4.1 Eurodollar Loan Provisions. 25
4.2 Capital Adequacy. 26
4.3 Compensation. 27
4.4 Taxes. 27
SECTION 5. CONDITIONS PRECEDENT 29
5.1 Closing Conditions. 29
5.2 Conditions to Loans. 31
SECTION 6. REPRESENTATIONS AND WARRANTIES 32
6.1 Organization and Good Standing. 32
6.2 Due Authorization. 32
6.3 No Conflicts. 33
6.4 Consents. 33
6.5 Enforceable Obligations. 33
6.6 Financial Condition. 33
6.7 No Material Change. 34
6.8 No Default. 34
6.9 Litigation. 34
6.10 Taxes. 34
6.11 Compliance with Law. 34
6.12 Material Agreements. 34
6.13 ERISA. 35
6.14 Use of Proceeds. 36
6.15 Government Regulation. 36
6.16 Disclosure. 37
6.17 Environmental Matters. 37
6.18 Insurance. 37
6.19 Franchises, Licenses, Etc. 37
6.20 Secured Indebtedness. 37
6.21 Subsidiaries. 37
6.22 Solvency. 38
SECTION 7. AFFIRMATIVE COVENANTS 38
7.1 Information Covenants. 38
7.2 Debt to Capitalization Ratio. 40
7.3 Preservation of Existence, Franchises and Assets. 40
7.4 Books and Records. 40
7.5 Compliance with Law. 41
7.6 Payment of Taxes and Other Indebtedness. 41
7.7 Insurance. 41
7.8 Use of Proceeds. 41
7.9 Audits/Inspections. 41
SECTION 8. NEGATIVE COVENANTS 42
8.1 Nature of Business. 42
8.2 Consolidation and Merger. 42
8.3 Sale or Lease of Assets. 42
8.4 Arm's-Length Transactions. 42
8.5 Fiscal Year; Organizational Documents. 43
8.6 Liens. 43
SECTION 9. EVENTS OF DEFAULT 44
9.1 Events of Default. 44
9.2 Acceleration; Remedies. 47
9.3 Allocation of Payments After Event of Default. 47
SECTION 10 AGENCY PROVISIONS 48
10.1 Appointment. 48
10.2 Delegation of Duties. 49
10.3 Exculpatory Provisions. 49
10.4 Reliance on Communications. 49
10.5 Notice of Default. 50
10.6 Non-Reliance on Administrative Agent and Other Lenders.
50
10.7 Indemnification. 51
10.8 Administrative Agent in Its Individual Capacity. 51
10.9 Successor Agent. 51
SECTION 11. MISCELLANEOUS 52
11.1 Notices. 52
11.2 Right of Set-Off. 52
11.3 Benefit of Agreement. 53
11.4 No Waiver; Remedies Cumulative. 55
11.5 Payment of Expenses, etc. 56
11.6 Amendments, Waivers and Consents. 56
11.7 Counterparts/Telecopy. 57
11.8 Headings. 57
11.9 Defaulting Lender. 57
11.10 Survival of Indemnification and
Representations and Warranties. 58
11.11 Governing Law; Venue. 58
11.12 Waiver of Jury Trial. 58
11.13 Severability. 59
11.14 Further Assurances. 59
11.15 Entirety. 59
11.16 Binding Effect; Continuing Agreement. 59
SCHEDULES
Schedule 1.1 Commitment Percentages
Schedule 6.20 Secured Indebtedness
Schedule 6.21 Subsidiaries
Schedule 11.1 Notices
EXHIBITS
Exhibit 2.2 Form of Notice of Borrowing
Exhibit 2.4 Form of Notice of Continuation/Conversion
Exhibit 2.7(a) Form of Tranche A Term Loan Note
Exhibit 2.7(b) Form of Tranche B Term Loan Note
Exhibit 7.1(c) Form of Officer's Certificate
Exhibit 11.3(b) Form of Assignment Agreement
TERM
CREDIT AGREEMENT
THIS TERM CREDIT AGREEMENT (this "Credit Agreement"), dated
as of August 3, 2000, is entered into among ATMOS ENERGY
CORPORATION, a Texas and Virginia corporation (the "Borrower"),
the Lenders (as defined herein) and BANK OF AMERICA, N.A. as
agent for the Lenders (in such capacity, the "Administrative
Agent").
RECITALS
WHEREAS, the Borrower has requested that the Lenders provide
a 364-day term credit facility to the Borrower for the purposes
set forth herein; and
WHEREAS, the Lenders have agreed to provide such 364-day
term credit facility on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1.
DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions.
As used herein, the following terms shall have the meanings
herein specified unless the context otherwise requires. Defined
terms herein shall include in the singular number the plural and
in the plural the singular.
"Acquisition" means the acquisition to be consummated
pursuant to the terms of the Purchase and Sale Agreement.
"Adjusted Eurodollar Rate" means the Eurodollar Rate
plus the Applicable Percentage for Eurodollar Loans.
"Administrative Agent" means Bank of America, N.A. and
any successors and assigns in such capacity.
"Affiliate" means, with respect to any Person, any
other Person directly or indirectly controlling, controlled
by or under direct or indirect common control with such
Person. A Person shall be deemed to control another Person
if such Person possesses, directly or indirectly, the power
(a) to vote 10% or more of the securities having ordinary
voting power for the election of directors of such other
Person or (b) to direct or cause direction of the management
and policies of such other Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agency Services Address" means ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ or such other address as the
Administrative Agent may designate in writing.
"Applicable Percentage" means with respect to
Eurodollar Loans and Unused Fees (subject to the terms set
forth below), the appropriate applicable percentage
corresponding to the Debt Rating of the Borrower in effect
from time to time as described below:
Applicable Applicable
Debt Rating of Borrower Percentage Percentage
for for Unused
Eurodollar Fees
Loans
I. => A- from S&P .625% .10%
or
=> A3 from ▇▇▇▇▇'▇
II. => BBB+ but < A- from S&P .75 .125%
or
=> Baa1 but < A3 from ▇▇▇▇▇'▇
III. => BBB but < BBB+ from S&P .875 .15%
or
=> Baa2 but < Baa1 from ▇▇▇▇▇'▇
IV. => BBB- but < BBB from S&P 1.125% .20%
or
=> Baa3 but < Baa2 from ▇▇▇▇▇'▇
V. < BBB- from S&P 1.50% .30%
or
< Baa3 from ▇▇▇▇▇'▇
or
unrated by S&P and ▇▇▇▇▇'▇
Notwithstanding the above, (a) the Applicable
Percentage on the Effective Date shall be based on Pricing
Level II set forth above and shall remain at Pricing Level
II until S&P or ▇▇▇▇▇'▇ has confirmed or changed its rating
based upon the consummation or proposed consummation of the
Acquisition or has otherwise changed its rating with respect
to the Borrower and (b) if at any time there is a split in
ratings between S&P and ▇▇▇▇▇'▇ of one level, the applicable
percentage shall be determined by the higher of the two
ratings and if at any time there is a split between S&P and
▇▇▇▇▇'▇ of two or more levels, the applicable level shall be
one level below (i.e., one level higher pricing than) the
higher of the S&P or ▇▇▇▇▇'▇ rating.
The Borrower shall notify the Administrative Agent in
writing at the Agency Services Address immediately upon any
change in its Debt Rating.
"Bankruptcy Code" means the Bankruptcy Code in Title 11
of the United States Code, as amended, modified, succeeded
or replaced from time to time.
"Base Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest whole
multiple of 1/100 of 1%) equal to the greater of (a) the
Federal Funds Rate in effect on such day plus 1/2 of 1% (.50%)
or (b) the Prime Rate in effect on such day. If for any
reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error)
that it is unable after due inquiry to ascertain the Federal
Funds Rate for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms hereof, the Base
Rate shall be determined without regard to clause (a) of the
first sentence of this definition until the circumstances
giving rise to such inability no longer exist. Any change
in the Base Rate due to a change in the Prime Rate or the
Federal Funds Rate shall be effective on the effective date
of such change in the Prime Rate or the Federal Funds Rate,
respectively.
"Base Rate Loan" means a Loan which bears interest
based on the Base Rate.
"Borrower" means Atmos Energy Corporation, a Texas and
Virginia corporation.
"Borrower Obligations" means, without duplication, all
of the obligations of the Borrower to the Lenders and the
Administrative Agent, whenever arising, under this Credit
Agreement, the Notes or any of the other Credit Documents.
"Business Day" means any day other than a Saturday, a
Sunday, a legal holiday or a day on which banking
institutions are authorized or required by law or other
governmental action to close in Dallas, Texas; provided that
in the case of Eurodollar Loans, such day is also a day on
which dealings between banks are carried on in U.S. dollar
deposits in the London interbank market.
"Capital Stock" means (a) in the case of a corporation,
all classes of capital stock of such corporation, (b) in the
case of a partnership, partnership interests (whether
general or limited), (c) in the case of a limited liability
company, membership interests and (d) any other interest or
participation that confers on a Person the right to receive
a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Change of Control" means either of the following
events:
(a) any "person" or "group" (within the meaning
of Section 13(d) or 14(d) of the Exchange Act) has
become, directly or indirectly, the "beneficial owner"
(as defined in Rules 13d-3 (other than subsection (d)
thereof) and 13d-5 under the Exchange Act), by way of
merger, consolidation or otherwise of 40% or more of
the voting power of the Borrower on a fully-diluted
basis, after giving effect to the conversion and
exercise of all outstanding warrants, options and other
securities of the Borrower convertible into or
exercisable for voting stock of the Borrower (whether
or not such securities are then currently convertible
or exercisable); or
(b) during any period of two consecutive calendar
years, individuals who at the beginning of such period
constituted the board of directors of the Borrower
together with any new members of such board of
directors whose elections by such board or board of
directors or whose nomination for election by the
stockholders of the Borrower was approved by a vote of
a majority of the members of such board of directors
then still in office who either were directors at the
beginning of such period or whose election or
nomination for election was previously so approved
cease for any reason to constitute a majority of the
directors of the Borrower then in office.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the rules and regulations
promulgated thereunder.
"Commitments" means, as to each Lender, such Lender's
Tranche A Term Loan Commitment and Tranche B Term Loan
Commitment, and, collectively, all of the Lender's
Commitments.
"Commitment Percentage" means, for each Lender, the
percentage identified as its Commitment Percentage opposite
such Lender's name on Schedule 1.1, as such percentage may
be modified by assignment in accordance with the terms of
this Credit Agreement.
"Consolidated Capitalization" means, without
duplication, the sum of (a) all of the shareholders' equity
or net worth of the Borrower and its Subsidiaries on a
consolidated basis, as determined in accordance with GAAP
plus (b) the aggregate principal amount of Preferred
Securities plus (c) the aggregate Minority Interests in
Subsidiaries plus (d) Consolidated Funded Debt.
"Consolidated Funded Debt" means, without duplication,
the sum of (a) all indebtedness of the Borrower and its
Subsidiaries for borrowed money, (b) all purchase money
indebtedness of the Borrower and its Subsidiaries, (c) the
principal portion of all obligations of the Borrower and its
Subsidiaries under capital leases, (d) all commercial
letters of credit and the maximum amount of all performance
and standby letters of credit issued or bankers' acceptance
facilities created for the account of the Borrower or one of
its Subsidiaries, including, without duplication, all
unreimbursed draws thereunder, (e) all Guaranty Obligations
of the Borrower and its Subsidiaries with respect to funded
indebtedness of another Person; provided that neither the
indebtedness of ▇▇▇▇▇▇▇▇ Marketing, LLC ("▇▇▇▇▇▇▇▇")
incurred in connection with the purchase of gas by ▇▇▇▇▇▇▇▇
for resale to the Borrower nor the guaranty by the Borrower
or one of its Subsidiaries of such indebtedness shall be
included in this definition if such indebtedness has been
outstanding for less than two months from the date of its
incurrence by ▇▇▇▇▇▇▇▇, (f) all indebtedness of another
entity secured by a Lien on any property of the Borrower or
any of its Subsidiaries whether or not such indebtedness has
been assumed by the Borrower or any of its Subsidiaries,
(g) all indebtedness of any partnership or unincorporated
joint venture to the extent the Borrower or one of its
Subsidiaries is legally obligated with respect thereto, net
of any assets of such partnership or joint venture, (h) all
obligations of the Borrower and its Subsidiaries to advance
or provide funds or other support for the payment or
purchase of funded indebtedness (including, without
limitation, maintenance agreements, comfort letters or
similar agreements or arrangements) (other than as may be
given in respect of ▇▇▇▇▇▇▇▇) and (i) the principal balance
outstanding under any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar
off-balance sheet financing product of the Borrower or one
of its Material Subsidiaries where such transaction is
considered borrowed money indebtedness for tax purposes but
is classified as an operating lease in accordance with GAAP.
"Consolidated Net Property" means the Fixed Assets
less, without duplication, the amount of accumulated
depreciation and amortization attributable thereto.
"Credit Documents" means this Credit Agreement, the
Notes, any Notice of Borrowing and all other related
agreements and documents issued or delivered hereunder or
thereunder or pursuant hereto or thereto.
"Debt to Capitalization Ratio" means the ratio of
(a) Consolidated Funded Debt to (b) Consolidated
Capitalization.
"Debt Issuance" means the issuance of any indebtedness
for borrowed money by the Borrower or any of its Material
Subsidiaries, other than (a) indebtedness under this Credit
Agreement, (b) indebtedness under that certain Revolving
Credit Agreement, dated as of the date hereof, among the
Borrower, the Administrative Agent and the lenders party
thereto, as it may be amended or modified from time to time,
(c) issuances of commercial paper in the ordinary course and
(d) indebtedness under working capital facilities existing
as of the Closing Date in an aggregate amount not to exceed
$110 million.
"Debt Rating" means the long-term, senior, unsecured,
non-credit enhanced debt rating of the Borrower from S&P and
▇▇▇▇▇'▇.
"Default" means any event, act or condition which with
notice or lapse of time, or both, would constitute an Event
of Default.
"Defaulting Lender" means, at any time, any Lender
that, at such time (a) has failed to make a Loan required
pursuant to the term of this Credit Agreement, (b) has
failed to pay to the Administrative Agent or any Lender an
amount owed by such Lender pursuant to the terms of this
Credit Agreement or (c) has been deemed insolvent or has
become subject to a bankruptcy or insolvency proceeding or
to a receiver, trustee or similar official.
"Dollars" and "$" means dollars in lawful currency of
the United States of America.
"Effective Date" means the date on which all of the
conditions set forth in Section 5.1 shall have been
fulfilled (or waived in the sole discretion of the Lenders).
"Eligible Assignee" means (a) a Lender; (b) an
Affiliate of a Lender; and (c) any other Person approved by
the Administrative Agent and the Borrower (such approval not
to be unreasonably withheld or delayed); provided that
(i) the Borrower's consent is not required during the
existence and continuation of an Event of Default,
(ii) approval by the Borrower shall be deemed given if no
objection is received by the Administrative Agent from the
Borrower within five Business Days after notice of such
proposed assignment has been received by the Borrower; and
(iii) neither the Borrower nor an Affiliate of the Borrower
shall qualify as an Eligible Assignee.
"Environmental Laws" means any current or future legal
requirement of any Governmental Authority pertaining to (a)
the protection of health, safety, and the indoor or outdoor
environment, (b) the conservation, management, or use of
natural resources and wildlife, (c) the protection or use of
surface water and groundwater or (d) the management,
manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, release,
threatened release, abatement, removal, remediation or
handling of, or exposure to, any hazardous or toxic
substance or material or (e) pollution (including any
release to land surface water and groundwater) and includes,
without limitation, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act
of 1986, 42 USC 9601 et seq., Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act of
1976 and Hazardous and Solid Waste Amendment of 1984, 42 USC
6901 et seq., Federal Water Pollution Control Act, as
amended by the Clean Water Act of 1977, 33 USC 1251 et seq.,
Clean Air Act of 1966, as amended, 42 USC 7401 et seq.,
Toxic Substances Control Act of 1976, 15 USC 2601 et seq.,
Hazardous Materials Transportation Act, 49 USC App. 1801 et
seq., Occupational Safety and Health Act of 1970, as
amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33
USC 2701 et seq., Emergency Planning and Community Right-to-
Know Act of 1986, 42 USC 11001 et seq., National
Environmental Policy Act of 1969, 42 USC 4321 et seq., Safe
Drinking Water Act of 1974, as amended, 42 USC 300(f) et
seq., any analogous implementing or successor law, and any
amendment, rule, regulation, order, or directive issued
thereunder.
"Equity Issuance" means any issuance by the Borrower or
any of its Subsidiaries to any Person of shares of its
Capital Stock or other equity interests, including Preferred
Securities, whether pursuant to the exercise of options or
warrants, to the conversion of any debt securities to equity
interests, or otherwise.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, and any successor statute thereto,
as interpreted by the rules and regulations thereunder, all
as the same may be in effect from time to time. References
to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity, whether or not
incorporated, which is under common control with the
Borrower or any of its Subsidiaries within the meaning of
Section 4001(a)(14) of ERISA, or is a member of a group
which includes the Borrower or any of its Subsidiaries and
which is treated as a single employer under Sections 414(b),
(c), (m), or (o) of the Code.
"Eurodollar Loan" means a Loan bearing interest at the
Adjusted Eurodollar Rate.
"Eurodollar Rate" means with respect to any Eurodollar
Loan, for the Interest Period applicable thereto, a rate per
annum determined pursuant to the following formula:
"Eurodollar Rate" = London Interbank Offered Rate
---------------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means, for any day,
that percentage (expressed as a decimal) which is in effect
from time to time under Regulation D of the Board of
Governors of the Federal Reserve System (or any successor),
as such regulation may be amended from time to time or any
successor regulation, as the maximum reserve requirement
(including, without limitation, any basic, supplemental,
emergency, special, or marginal reserves) applicable with
respect to Eurocurrency liabilities, as that term is defined
in Regulation D (or against any other category of
liabilities that includes deposits by reference to which the
interest rate of Eurodollar Loans is determined), whether or
not a Lender has any Eurocurrency liabilities subject to
such reserve requirement at that time. Eurodollar Loans
shall be deemed to constitute Eurocurrency liabilities and
as such shall be deemed subject to reserve requirements
without benefits of credits for proration, exceptions or
offsets that may be available from time to time to a Lender.
The Eurodollar Rate shall be adjusted automatically on and
as of the effective date of any change in the Eurodollar
Reserve Percentage.
"Event of Default" has the meaning specified in Section
9.1.
"Exchange Act" means the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated
thereunder.
"Fee Letter" means that certain letter agreement, dated
as of April 13, 2000, between the Administrative Agent and
the Borrower, as amended, modified, supplemented or replaced
from time to time.
"Federal Funds Rate" means, for any day, the rate per
annum (rounded upward to the nearest 1/100th of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published
by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is
not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next
preceding Business Day and (b) if no such rate is so
published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate quoted to
the Administrative Agent on such day on such transactions as
determined by the Administrative Agent.
"Financial Officer" means any one of the chief
financial officer, the controller or the treasurer of the
Borrower.
"Fixed Assets" means the assets of the Borrower and its
Subsidiaries constituting "net property, plant and
equipment" on the consolidated balance sheet of the Borrower
and its Subsidiaries.
"GAAP" means generally accepted accounting principles
in the United States applied on a consistent basis and
subject to Section 1.3.
"Governmental Authority" means any Federal, state,
local or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"Guaranty Obligations" means, with respect to any
Person, without duplication, any obligations (other than
endorsements in the ordinary course of business of
negotiable instruments for deposit or collection)
guaranteeing any indebtedness for borrowed money of any
other Person in any manner, whether direct or indirect, and
including without limitation any obligation, whether or not
contingent, (a) to purchase any such indebtedness or other
obligation or any property constituting security therefor,
(b) to lease or purchase property, securities or services
primarily for the purpose of assuring the owner of such
indebtedness or (c) to otherwise assure or hold harmless the
owner of such indebtedness or obligation against loss in
respect thereof. The amount of any Guaranty Obligation
hereunder shall (subject to any limitations set forth
therein) be deemed to be an amount equal to the outstanding
principal amount of the indebtedness in respect of which
such Guaranty Obligation is made.
"Interest Payment Date" means (a) as to Base Rate
Loans, the last day of each fiscal quarter of the Borrower
and the Maturity Date and (b) as to Eurodollar Loans, the
last day of each applicable Interest Period and the Maturity
Date and, in addition, where the applicable Interest Period
for a Eurodollar Loan is greater than three months, then
also on the last day of each three-month period during such
Interest Period.
"Interest Period" means, as to Eurodollar Loans, a
period of one, two, three or six months' duration, as the
Borrower may elect, commencing, in each case, on the date of
the borrowing (including continuations and conversions of
Eurodollar Loans); provided, however, (a) if any Interest
Period would end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding
Business Day (except that where the next succeeding Business
Day falls in the next succeeding calendar month, then such
Interest Period shall end on the next preceding Business
Day), (b) no Interest Period shall extend beyond the
Maturity Date and (c) where an Interest Period begins on a
day for which there is no numerically corresponding day in
the calendar month in which the Interest Period is to end,
such Interest Period shall end on the last Business Day of
such calendar month.
"Lender" means any of the Persons identified as a
"Lender" on the signature pages hereto, and any Eligible
Assignee which may become a Lender by way of assignment in
accordance with the terms hereof, together with their
successors and permitted assigns.
"Lien" means any mortgage, pledge, hypothecation,
assignment, deposit arrangement, security interest,
encumbrance, lien (statutory or otherwise), preference,
priority or charge of any kind (including any agreement to
give any of the foregoing).
"Loan" means a Tranche A Term Loan made by a Lender to
the Borrower pursuant to Section 2.1(a) or the Tranche B
Term Loan made by a Lender to the Borrower pursuant to
Section 2.1(b).
"London Interbank Offered Rate" means, with respect to
any Eurodollar Loan for the Interest Period applicable
thereto, the rate of interest per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Telerate
Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00
A.M. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is
specified on Telerate Page 3750, the applicable rate shall
be the arithmetic mean of all such rates. If, for any
reason, such rate is not available, the term "London
Interbank Offered Rate" shall mean, with respect to any
Eurodollar Loan for the Interest Period applicable thereto,
the rate of interest per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for
deposits in Dollars at approximately 11:00 A.M. (London
time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest
Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates.
"Material Adverse Effect" means a material adverse
effect on (a) the operations, business, assets, liabilities
(actual or contingent), financial condition or prospects of
the Borrower and its Subsidiaries, taken as a whole (taking
into account the value of any indemnifications in favor of
the Borrower pursuant to the Purchase and Sale Agreement),
(b) the ability of the Borrower to perform its obligations
under this Credit Agreement or (c) the validity or
enforceability of this Credit Agreement, any of the other
Credit Documents, or the rights and remedies of the Lenders
hereunder or thereunder.
"Material Subsidiary" means, at any date, a Subsidiary
of the Borrower whose aggregate assets properly included
under the category "property, plant and equipment" on the
balance sheet of such Subsidiary, less the amount of
depreciation and amortization attributable thereto,
constitutes at least 10% of Consolidated Net Property as of
such date; provided that if at any time the Borrower has
Subsidiaries that are not Material Subsidiaries whose total
aggregate assets under the category "property, plant and
equipment" on the balance sheet of such Subsidiaries, less
the amount of depreciation and amortization attributable
thereto, constitutes more than 20% of Consolidated Net
Property as of such date the Borrower shall designate one or
more of such Subsidiaries as Material Subsidiaries for the
purposes of this Agreement in order that all Subsidiaries of
the Borrower, other than Material Subsidiaries, own not more
than 20% of Consolidated Net Property.
"Maturity Date" means August 2, 2001.
"Minority Interests" means interests owned by Persons
(other than the Borrower or a Subsidiary of the Borrower) in
a Subsidiary of the Borrower in which less than 100% of all
classes of the voting securities are owned by the Borrower
or its Subsidiaries.
"Missouri Property Acquisition" means the acquisition,
effective June 1, 2000, by the Borrower of certain gas
utility properties in Missouri from a subsidiary of
Southwestern Energy Corporation.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any
successor or assignee of the business of such company in the
business of rating securities.
"Multiemployer Plan" means a Plan covered by Title IV
of ERISA which is a multiemployer plan as defined in Section
3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan covered by Title
IV of ERISA, other than a Multiemployer Plan, which the
Borrower or any ERISA Affiliate and at least one employer
other than the Borrower or any ERISA Affiliate are
contributing sponsors.
"Net Cash Proceeds" means the aggregate cash proceeds
received from a Debt Issuance or Equity Issuance, net of
actual transaction costs payable to third parties in
connection therewith.
"1957 Indenture" means, collectively, that certain
Indenture of Mortgage, dated as of March 1, 1957, granted by
Greeley Gas Company (predecessor in interest to the
Borrower) to The Central Bank and Trust Company, as original
Trustee, and all Supplemental Indentures thereto.
"1959 Indenture" means, collectively, that certain
Indenture of Mortgage, dated as of July 15, 1959, granted by
United Cities Gas Company (predecessor in interest to the
Borrower) to City National Bank and Trust Company of Chicago
and R. ▇▇▇▇▇▇ ▇▇▇▇▇▇, as the original Trustees, and all
Supplemental Indentures thereto, including, without
limitation, that certain First Supplemental Indenture, dated
as of November 1, 1960; that certain Second Supplemental
Indenture, dated as of June 1, 1962; that certain Third
Supplemental Indenture, dated as of February 1, 1963; that
certain Fourth Supplemental Indenture, dated as of June 15,
1963; that certain Fifth Supplemental Indenture, dated as of
November 15, 1964; that certain Sixth Supplemental
Indenture, dated as of March 15, 1968; that certain Seventh
Supplemental Indenture, dated as of August 1, 1970; that
certain Eighth Supplemental Indenture, dated as of September
1, 1972; that certain Ninth Supplemental Indenture, dated as
of January 1, 1974; that certain Tenth Supplemental
Indenture, dated as of July 1, 1976; that certain Eleventh
Supplemental Indenture, dated as of December 1, 1976; that
certain Twelfth Supplemental Indenture, dated as of April 1,
1981; that certain Thirteenth Supplemental Indenture, dated
as of May 1, 1982; that certain Fourteenth Supplemental
Indenture, dated as of March 1, 1987; that certain Fifteenth
Supplemental Indenture, dated as of October 1, 1987; that
certain Sixteenth Supplemental Indenture, dated as of
December 1, 1989; that certain Seventeenth Supplemental
Indenture, dated as of April 1, 1990; that certain
Eighteenth Supplemental Indenture, dated as of June 1, 1991;
that certain Nineteenth Supplemental Indenture, dated as of
May 1, 1992; that certain Twentieth Supplemental Indenture,
dated as of December 1, 1992; that certain Twenty-First
Supplemental Indenture, dated as of February 5, 1997; and
that certain Twenty-Second Supplemental Indenture, dated as
of July 29, 1997.
"1987 Note Purchase Agreements" means, collectively,
those certain Note Purchase Agreements, dated as of December
21, 1987, by and between Energas Company (predecessor in
interest to the Borrower) and (a) ▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life
Insurance Company, (b) ▇▇▇▇ ▇▇▇▇▇▇▇ Charitable Trust I and
(c) Mellon Bank, N.A., Trustee under the Master Trust of
AT&T Corporation, and all Amendments thereto, including,
without limitation, that certain Amendment to Note Purchase
Agreements, amending each of the above-referenced Note
Purchase Agreements, each dated as of (i) October 11, 1989,
(ii) November 12, 1991, (iii) December 22, 1993,
(iv) December 20, 1994 and July 29, 1997.
"1989 Note Purchase Agreement" means, collectively,
that certain Note Purchase Agreement, dated as of October
11, 1989, by and between the Borrower and ▇▇▇▇ ▇▇▇▇▇▇▇
Mutual Life Insurance Company, and all Amendments thereto,
including, without limitation, those Amendments dated as of
October 11, 1989, November 12, 1991, December 22, 1993,
December 20, 1994, and July 29, 1997.
"1991 Note Purchase Agreement" means, collectively,
that certain Note Purchase Agreement, dated as of August 29,
1991, by and between the Borrower and The Variable Annuity
Life Insurance Company, and all Amendments thereto,
including, without limitation, those Amendments dated as of
November 26, 1991, December 22, 1993, and July 29, 1997.
"1992 Note Purchase Agreement" means, collectively,
that certain Note Purchase Agreement, dated as of August 31,
1992, by and between the Borrower and The Variable Annuity
Life Insurance Company, and all Amendments thereto,
including, without limitation, those Amendments dated as of
December 22, 1993, and July 29, 1997.
"1994 Note Purchase Agreement" means, collectively,
that certain Note Purchase Agreement dated November 14,
1994, by and among the Borrower and New York Life Insurance
Company, New York Life Insurance and Annuity Corporation,
The Variable Annuity Life Insurance Company, American
General Life Insurance Company, and Merit Life Insurance
Company, and all Amendments thereto; including, without
limitation, that Amendment dated as of July 29, 1997.
"1998 Indenture" means, collectively, that certain
Indenture, dated as of July 15, 1998, granted by the
Borrower to US Bank Trust National Association, as Trustee,
and all Supplemental Indentures thereto.
"Notes" means, collectively, the Tranche A Term Loan
Notes and the Tranche B Term Loan Notes.
"Notice of Borrowing" means a request by the Borrower
for a Loan in the form of Exhibit 2.2.
"Notice of Continuation/Conversion" means a request by
the Borrower for the continuation or conversion of a Loan in
the form of Exhibit 2.4.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and
any successor thereto.
"Person" means any individual, partnership, joint
venture, firm, corporation, association, trust, limited
liability company or other enterprise (whether or not
incorporated), or any government or political subdivision or
any agency, department or instrumentality thereof.
"Plan" means any employee benefit plan (as defined in
Section 3(3) of ERISA) which is covered by ERISA and with
respect to which the Borrower or any ERISA Affiliate is (or,
if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" within
the meaning of Section 3(5) of ERISA.
"Preferred Securities" means, at any date, any equity
interests in the Borrower, in a Special Purpose Financing
Subsidiary of the Borrower or in any other Subsidiary of the
Borrower (such as those known as "TECONS", "MIPS" or
"RHINOS"): (a) that are not (i) required to be redeemed or
redeemable at the option of the holder thereof prior to the
fifth anniversary of the Maturity Date or (ii) convertible
into or exchangeable for (unless solely at the option of the
Borrower or such Subsidiary of the Borrower) equity
interests referred to in clause (i) above or indebtedness
having a scheduled maturity, or requiring any repayments or
prepayments of principal or any sinking fund or similar
payments in respect of principal or providing for any such
repayment, prepayment, sinking fund or other payment at the
option of the holder thereof prior to the fifth anniversary
of the Maturity Date and (b) as to which, at such date, the
Borrower or such Subsidiary of the Borrower has the right to
defer the payment of all dividends and other distributions
in respect thereof for the period of at least 19 consecutive
quarters beginning at such date.
"Prime Rate" means the per annum rate of interest
established from time to time by the Administrative Agent at
its principal office in Charlotte, North Carolina (or such
other principal office as communicated by the Administrative
Agent to the Borrower and the Lenders) as its Prime Rate.
Any change in the interest rate resulting from a change in
the Prime Rate shall become effective as of 12:01 a.m. of
the Business Day on which each change in the Prime Rate is
announced by the Administrative Agent. The Prime Rate is a
reference rate used by the Administrative Agent in
determining interest rates on certain loans and is not
intended to be the lowest rate of interest charged on any
extension of credit to any debtor.
"Purchase and Sale Agreement" means that certain
Purchase and Sale Agreement, dated as of April 13, 2000,
among Citizens Utilities Company, LGS Natural Gas Company
and the Borrower.
"Register" has the meaning set forth in Section
11.3(c).
"Regulation A, D, O, T, U, or X" means Regulation A, D,
O, T, U or X, respectively, of the Board of Governors of the
Federal Reserve System as from time to time in effect, any
amendment thereto and any successor to all or a portion
thereof.
"Reportable Event" means a "reportable event" as
defined in Section 4043 of ERISA with respect to which the
notice requirements to the PBGC have not been waived.
"Required Lenders" means Lenders whose aggregate Credit
Exposure (as hereinafter defined) constitutes more than 50%
of the aggregate Credit Exposure of all Lenders at such
time; provided, however, that if any Lender shall be a
Defaulting Lender at such time then there shall be excluded
from the determination of Required Lenders the aggregate
principal amount of Credit Exposure of such Lender at such
time. For purposes of the preceding sentence, the term
"Credit Exposure" as applied to each Lender shall mean (a)
at any time prior to the termination of the Commitments, the
sum of (i) the Commitment Percentage of such Lender
multiplied by the aggregate principal amount of Tranche A
Term Loans outstanding at such time plus (ii) the Commitment
Percentage of such Lender multiplied by the amount of the
Tranche B Term Loan, if the Tranche B Term Loan is
outstanding at such time and (b) at any time after the
termination of the Commitments, the sum of the principal
balance of the outstanding Loans of such Lender.
"S&P" means Standard & Poor's Ratings Services, a
division of McGraw Hill, Inc., or any successor or assignee
of the business of such division in the business of rating
securities.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated
thereunder.
"Share Issuance Plans" means the Borrower's (a)
Restricted Stock Grant Plan, (b) Employee Stock Ownership
Plan, (c) Direct Stock Purchase Plan, (d) Stock-Based
Compensation Plans, (e) Long-Term Incentive Plan and (f)
Outside Directors Stock-for-Fee Plan and the Long-Term Stock
Plan of the United Cities Gas Company Division of the
Borrower, as each such plan is referenced in the Borrower's
most recent annual audited financial statement on Form 10-K
as filed with the Securities and Exchange Commission and as
each such plan may be amended or modified from time to time
in the ordinary course and any future plans established by
the Borrower or one of its Subsidiaries that are similar to
and consistent with the plans set forth above.
"Single Employer Plan" means any Plan which is covered
by Title IV of ERISA, but which is not a Multiemployer Plan
or a Multiple Employer Plan.
"Solvent" means, with respect to the Borrower as of a
particular date, that on such date (a) the Borrower is able
to pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the
normal course of business, (b) the Borrower does not intend
to, and does not believe that it will, incur debts or
liabilities beyond the Borrower's ability to pay as such
debts and liabilities mature in their ordinary course,
(c) the Borrower is not engaged in a business or a
transaction, and is not about to engage in a business or a
transaction, for which the Borrower's assets would
constitute unreasonably small capital after giving due
consideration to the prevailing practice in the industry in
which the Borrower is engaged or is to engage, (d) the fair
value of the assets of the Borrower is greater than the
total amount of liabilities, including, without limitation,
contingent liabilities, of the Borrower and (e) the present
fair saleable value of the assets of the Borrower is not
less than the amount that will be required to pay the
probable liability of the Borrower on its debts as they
become absolute and matured. In computing the amount of
contingent liabilities at any time, it is intended that such
liabilities will be computed as the amount which, in light
of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to
become an actual or matured liability.
"Special Purpose Financing Subsidiary" means a
Subsidiary of the Borrower that has no direct or indirect
interest in the business of the Borrower and its other
Subsidiaries and was formed solely for the purpose of
issuing Trust Preferred Securities.
"Subsidiary" means, as to any Person, (a) any
corporation more than 50% of whose stock of any class or
classes having by the terms thereof ordinary voting power to
elect a majority of the directors of such corporation
(irrespective of whether or not, at the time, any class or
classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at
the time owned by such Person directly or indirectly through
Subsidiaries and (b) any partnership, association, joint
venture, limited liability company or other entity in which
such Person directly or indirectly through Subsidiaries has
more than 50% equity interest at any time.
"Termination Event" means (a) with respect to any
Single Employer Plan, the occurrence of a Reportable Event
or the substantial cessation of operations (within the
meaning of Section 4062(e) of ERISA), (b) the withdrawal of
the Borrower or any ERISA Affiliate from a Multiple Employer
Plan during a plan year in which it was a substantial
employer (as such term is defined in Section 4001(a)(2) of
ERISA), or the termination of a Multiple Employer Plan, (c)
the distribution of a notice of intent to terminate or the
actual termination of a Plan pursuant to Section 4041(a)(2)
or 4041A of ERISA, (d) the institution of proceedings to
terminate or the actual termination of a Plan by the PBGC
under Section 4042 of ERISA, (e) any event or condition
which might reasonably constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or (f) the complete or
partial withdrawal of the Borrower or any ERISA Affiliate
from a Multiemployer Plan.
"Total Assets" means all assets of the Borrower as
shown on its most recent quarterly consolidated balance
sheet, as determined in accordance with GAAP.
"Tranche A Commitment" means, as to each Lender, such
Lender's share of the Tranche A Term Loan Commitment based
upon such Lender's Commitment Percentage, as reflected on
Schedule 1.1.
"Tranche A Term Loan" has the meaning ascribed thereto
in Section 2.1(a).
"Tranche A Term Loan Commitment" means ONE HUNDRED
MILLION DOLLARS ($100,000,000), as such amount may otherwise
be reduced in accordance with Section 2.6 and as reflected
on Schedule 1.1.
"Tranche A Term Loan Notes" means the promissory notes
of the Borrower in favor of each Lender evidencing the
Tranche A Term Loans and substantially in the form of
Exhibit 2.7(a), as such promissory notes may be amended,
modified, supplemented or replaced from time to time.
"Tranche A Unused Fees" has the meaning ascribed
thereto in Section 3.4(a)(i).
"Tranche B Commitment" means, as to each Lender, such
Lender's share of the Tranche B Term Loan Commitment based
upon such Lender's Commitment Percentage, as reflected on
Schedule 1.1.
"Tranche B Term Loan" has the meaning ascribed thereto
on Section 2.1(b).
"Tranche B Term Loan Commitment" means THREE HUNDRED
EIGHTY-FIVE MILLION DOLLARS ($385,000,000), as such amount
may otherwise be reduced in accordance with Section 2.6 and
as reflected on Schedule 1.1.
"Tranche B Term Loan Notes" means the promissory notes
of the Borrower in favor of each Lender evidencing the
Tranche B Term Loan and substantially in the form of
Exhibit 2.7(b), as such promissory notes may be amended,
modified, supplemented or replaced from time to time.
"Tranche B Unused Fees" has the meaning ascribed
thereto in Section 3.4(a)(ii).
"2000 Indenture" means, collectively, that certain
proposed Indenture to be granted by the Borrower to SunTrust
Bank, Atlanta, as Trustee, in connection with the Borrower's
proposed debt offering currently planned for calendar years
2000 and 2001, and all Supplemental Indentures thereto.
"Unused Tranche A Term Loan Commitment" means, for any
period from the Effective Date to the Maturity Date, the
amount by which (a) the then applicable Tranche A Term Loan
Commitment exceeds (b) the daily average sum for such period
of the aggregate principal amount of all Tranche A Term
Loans outstanding.
"Unused Fees" has the meaning set forth in
Section 3.4(a)(ii).
1.2 Computation of Time Periods.
For purposes of computation of periods of time hereunder,
the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding." References in this Credit
Agreement to "Articles", "Sections", "Schedules" or "Exhibits"
shall be to Articles, Sections, Schedules or Exhibits of or to
this Credit Agreement unless otherwise specifically provided.
1.3 Accounting Terms.
Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all
financial statements and certificates and reports as to financial
matters required to be delivered to the Lenders hereunder shall
be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining
compliance with this Credit Agreement shall (except as otherwise
expressly provided herein) be made by application of GAAP applied
on a basis consistent with the most recent annual or quarterly
financial statements delivered pursuant to Section 7.1 (or, prior
to the delivery of the first financial statements pursuant to
Section 7.1, consistent with the financial statements described
in Section 5.1(d)); provided, however, if (a) the Borrower shall
object to determining such compliance on such basis at the time
of delivery of such financial statements due to any change in
GAAP or the rules promulgated with respect thereto or (b) the
Administrative Agent or the Required Lenders shall so object in
writing within 30 days after delivery of such financial
statements, then such calculations shall be made on a basis
consistent with the most recent financial statements delivered by
the Borrower to the Lenders as to which no such objection shall
have been made.
1.4 Time.
All references to time herein shall be references to Central
Standard Time or Central Daylight time, as the case may be,
unless specified otherwise.
SECTION 2.
LOANS
2.1 Term Loans.
(a) TRANCHE A TERM LOANS. Subject to the terms and
conditions set forth herein, each Lender severally agrees to
make term loans in up to six separate fundings, to the
Borrower, in Dollars, at any time and from time to time,
during the period from the Effective Date to the Maturity
Date (each a "Tranche A Term Loan" and collectively the
"Tranche A Term Loans"); provided, however, that (i) the
aggregate amount of Tranche A Term Loans outstanding shall
not exceed the Tranche A Term Loan Commitment and (ii) with
respect to each individual Lender, such Lender's Commitment
Percentage multiplied by the outstanding Tranche A Term
Loans shall not exceed such Lender's Tranche A Commitment.
Once repaid, the Tranche A Term Loans may not be reborrowed.
(b) TRANCHE B TERM LOANS. Subject to Section
5.2(e)(ii) and the other terms and conditions set forth
herein, each Lender severally agrees to make a term loan in
a single funding to the Borrower, in Dollars, at any time
during the period from the Effective Date to the Maturity
Date (the "Tranche B Term Loan"); provided, however, that
(i) the amount of the Tranche B Term Loan made hereunder
shall not exceed the Tranche B Term Loan Commitment and
(ii) with respect to each individual Lender, such Lender's
Commitment Percentage multiplied by the Tranche B Loan shall
not exceed such Lender's Tranche B Commitment. Once repaid,
the Tranche B Term Loan may not be reborrowed.
2.2 Method of Borrowing for Loans.
By no later than 11:00 a.m. (a) on the date of the requested
borrowing of Loans that will be Base Rate Loans or (b) three
Business Days prior to the date of the requested borrowing of
Loans that will be Eurodollar Loans, the Borrower shall telephone
the Administrative Agent as well as submit a written Notice of
Borrowing in the form of Exhibit 2.2 to the Administrative Agent
setting forth (i) whether the requested Loan shall be a Tranche A
Term Loan or shall be the Tranche B Term Loan, (ii) the amount
requested, (iii) whether such Loan shall accrue interest at the
Base Rate or the Adjusted Eurodollar Rate, (iv) with respect to a
Loan that will be a Eurodollar Loan, the Interest Period
applicable thereto and (v) certification that the Borrower has
complied in all respects with Section 5.2.
2.3 Funding of Loans.
Upon receipt of a Notice of Borrowing, the Administrative
Agent shall promptly inform the Lenders as to the terms thereof.
Each such Lender shall make its Commitment Percentage of the
requested Loans available to the Administrative Agent by 1:00
p.m. on the date specified in the Notice of Borrowing by deposit,
in Dollars, of immediately available funds at the Agency Services
Address. The amount of the requested Loans will then be made
available to the Borrower by the Administrative Agent by
crediting the account of the Borrower on the books of such office
of the Administrative Agent, to the extent the amount of such
Loans are made available to the Administrative Agent.
No Lender shall be responsible for the failure or delay by
any other Lender in its obligation to make Loans hereunder;
provided, however, that the failure of any Lender to fulfill its
obligations hereunder shall not relieve any other Lender of its
obligations hereunder. Unless the Administrative Agent shall
have been notified by any Lender prior to the date of any such
Loan that such Lender does not intend to make available to the
Administrative Agent its portion of the Loans to be made on such
date, the Administrative Agent may assume that such Lender has
made such amount available to the Administrative Agent on the
date of such Loans, and the Administrative Agent in reliance upon
such assumption, may (in its sole discretion but without any
obligation to do so) make available to the Borrower a
corresponding amount. If such corresponding amount is not in
fact made available to the Administrative Agent, the
Administrative Agent shall be able to recover such corresponding
amount from such Lender. If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent will promptly notify
the Borrower, and the Borrower shall immediately pay such
corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover from the
Lender or the Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative
Agent to the Borrower to the date such corresponding amount is
recovered by the Administrative Agent at a per annum rate equal
to (a) from the Borrower at the applicable rate for such Loan
pursuant to the Notice of Borrowing and (b) from a Lender at the
Federal Funds Rate.
2.4 Continuations and Conversions.
The Borrower shall have the option, on any Business Day, to
continue existing Eurodollar Loans for a subsequent Interest
Period, to convert Base Rate Loans into Eurodollar Loans or to
convert Eurodollar Loans into Base Rate Loans; provided, however,
that (a) each such continuation or conversion must be requested
by the Borrower pursuant to a written Notice of
Continuation/Conversion, in the form of Exhibit 2.4, in
compliance with the terms set forth below, (b) except as provided
in Section 4.1, Eurodollar Loans may only be continued or
converted into Base Rate Loans on the last day of the Interest
Period applicable thereto, (c) Eurodollar Loans may not be
continued nor may Base Rate Loans be converted into Eurodollar
Loans during the existence and continuation of a Default or Event
of Default and (d) any request to extend a Eurodollar Loan that
fails to comply with the terms hereof or any failure to request
an extension of a Eurodollar Loan at the end of an Interest
Period shall constitute a conversion to a Base Rate Loan on the
last day of the applicable Interest Period. Each continuation or
conversion must be requested by the Borrower no later than 11:00
a.m. (i) on the date for a requested conversion of a Eurodollar
Loan to a Base Rate Loan or (ii) three Business Days prior to the
date for a requested continuation of a Eurodollar Loan or
conversion of a Base Rate Loan to a Eurodollar Loan, in each case
pursuant to a written Notice of Continuation/Conversion submitted
to the Administrative Agent which shall set forth (A) whether the
Borrower wishes to continue or convert such Loans and (B) if the
request is to continue a Eurodollar Loan or convert a Base Rate
Loan to a Eurodollar Loan, the Interest Period applicable
thereto.
2.5 Minimum Amounts.
Each request for a Loan or a conversion or continuation
hereunder shall be subject to the following requirements:
(a) each Eurodollar Loan shall be in a minimum of $5,000,000 (and
in integral multiples of $1,000,000 in excess thereof), (b) each
Base Rate Loan shall be in a minimum amount of the lesser of
$5,000,000 (and in integral multiples of $1,000,000 in excess
thereof) and (c) no more than five Eurodollar Loans shall be
outstanding hereunder at any one time. For the purposes of this
Section, all Eurodollar Loans with the same Interest Periods that
begin and end on the same date shall be considered as one
Eurodollar Loan, but Eurodollar Loans with different Interest
Periods, even if they begin on the same date, shall be considered
separate Eurodollar Loans.
2.6 Reductions of Term Loan Commitments.
Upon at least three Business Days' prior written notice, the
Borrower shall have the right to permanently terminate or reduce
the aggregate unused amount of either the Tranche A Term Loan
Commitment or Tranche B Term Loan Commitment, or both, at any
time or from time to time; provided that (a) each partial
reduction shall be in an aggregate amount at least equal to
$5,000,000 and in integral multiples of $1,000,000 above such
amount, (b) no reduction shall be made which would reduce the
Tranche A Term Loan Commitment to an amount less than the sum of
the then outstanding Tranche A Term Loans and (c) any unused
amounts of the Tranche A Term Loan Commitment or the Tranche B
Term Loan Commitment subsequent to the maximum funding permitted
thereunder shall be automatically terminated. Any such reduction
in (or termination of) the Tranche A Term Loan Commitment or the
Tranche B Term Loan Commitment shall be permanent and may not be
reinstated.
2.7 Notes.
(a) TRANCHE A TERM LOAN NOTES. The Tranche A Term
Loans made by the Lenders shall be evidenced by a promissory
note of the Borrower payable to each Lender in substantially
the form of Exhibit 2.7(a) (the "Tranche A Term Loan
Notes").
(b) TRANCHE B TERM LOAN NOTES. The Tranche B Term
Loans made by the Lenders shall be evidenced by a promissory
note of the Borrower payable to each Lender in substantially
the form of Exhibit 2.7(b) (the "Tranche B Term Loan
Notes").
The date, amount, type, interest rate and duration of
Interest Period (if applicable) of each Loan made by each Lender
to the Borrower, and each payment made on account of the
principal thereof, shall be recorded by such Lender on its books;
provided that the failure of such Lender to make any such
recordation or endorsement shall not affect the obligations of
the Borrower to make a payment when due of any amount owing
hereunder or under any Note in respect of the Loans to be
evidenced by such Note, and each such recordation or endorsement
shall be conclusive and binding absent manifest error.
SECTION 3.
PAYMENTS
3.1 Interest.
(a) Interest Rate.
(i) All Base Rate Loans shall accrue interest at
the Base Rate.
(ii) All Eurodollar Loans shall accrue interest at
the Adjusted Eurodollar Rate applicable to each
Eurodollar Loan.
(b) DEFAULT RATE OF INTEREST. Upon the occurrence,
and during the continuation, of an Event of Default, the
principal of and, to the extent permitted by law, interest
on the Loans and any other amounts owing hereunder or under
the other Credit Documents shall bear interest, payable on
demand, at a per annum rate equal to two percent (2%) plus
the rate which would otherwise be applicable (or if no rate
is applicable, then the rate for Loans that are Base Rate
Loans plus two percent (2%) per annum).
(c) INTEREST PAYMENTS. Interest on Loans shall be due
and payable in arrears on each Interest Payment Date.
3.2 Prepayments.
(a) Voluntary Prepayments. The Borrower shall have
the right to prepay Loans in whole or in part from time to
time without premium or penalty; provided, however, that
(i) Eurodollar Loans may only be prepaid on three Business
Days' prior written notice to the Administrative Agent and
(ii) each such partial prepayment of Loans shall be in the
minimum principal amount of $5,000,000 (to be applied as set
forth in Section 3.2(c) below).
(b) Mandatory Prepayments.
(i) DEBT ISSUANCE. Immediately upon receipt by
the Borrower or any Material Subsidiary of proceeds
from any Debt Issuance, the Borrower shall forward 100%
of the Net Cash Proceeds of such Debt Issuance to the
Administrative Agent, for the pro rata benefit of the
Lenders, as a prepayment of the Loans (to be applied as
set forth in Section 3.2(c) below).
(ii) EQUITY ISSUANCE. Immediately upon receipt by
the Borrower or any Subsidiary of proceeds from any
Equity Issuance, other than issuances of equity by the
Borrower in the normal course through its Share
Issuance Plans, the Borrower shall forward 100% of the
Net Cash Proceeds of such Equity Issuance to the
Administrative Agent, for the pro rata benefit of the
Lenders, as a prepayment of the Loans (to be applied as
set forth in Section 3.2(c) below).
(c) Amounts prepaid under Section 3.2(a) shall be
subject to Section 4.3 and shall be applied as the Borrower
may elect; provided that if the Borrower fails to specify
the application of such voluntary prepayment then such
prepayment shall be applied pro rata between the Tranche A
Term Loans and the Tranche B Term Loan, and, within each
Tranche, first to Base Rate Loans and then to Eurodollar
Loans in direct order of Interest Period maturities. Any
payments made under Section 3.2(b) shall be subject to
Section 4.3 and shall be applied pro rata between the
Tranche A Term Loans and the Tranche B Term Loan, and,
within each Tranche, first to Base Rate Loans and then to
Eurodollar Loans in direct order of Interest Period
maturities. Once repaid, the Loans may not be reborrowed.
3.3 Payment in full at Maturity.
On the Maturity Date, the entire outstanding principal
balance of all Loans, together with accrued but unpaid interest
and all other sums owing under this Credit Agreement and the
other Credit Documents, shall be due and payable in full, unless
accelerated sooner pursuant to Section 9.2.
3.4 Fees.
(a) Unused Fees.
(i) In consideration of the Tranche A Term Loan
Commitment being made available by the Lenders
hereunder, the Borrower agrees to pay, during the
period from the Effective Date to the date of funding
of the entire Tranche A Term Loan Commitment or
termination thereof, to the Administrative Agent, for
the pro rata benefit of each Lender, a per annum fee
equal to the Applicable Percentage for Unused Fees on
the Unused Tranche A Term Loan Commitment (the "Tranche
A Unused Fees").
(ii) In consideration of the Tranche B Term Loan
Commitment being made available by the Lenders
hereunder, the Borrower agrees to pay, during the
period from the Effective Date to the date of funding
of the Tranche B Term Loan Commitment or termination
thereof, to the Administrative Agent, for the pro rata
benefit of each Lender, a per annum fee equal to the
Applicable Percentage for Unused Fees on the daily
average amount of the Tranche B Term Loan Commitment
during such period (the "Tranche B Unused Fees" and,
together with the Tranche A Unused Fees, the "Unused
Fees").
(iii) The accrued Unused Fees shall be due and
payable in arrears five Business Days after the end of
each fiscal quarter of the Borrower (as well as on the
Maturity Date) for the immediately preceding fiscal
quarter (or portion thereof), beginning with the first
of such dates to occur after the Effective Date.
(b) Administrative Fees. The Borrower agrees to pay
to the Administrative Agent, for its own account, an annual
fee as agreed to between the Borrower and the Administrative
Agent in the Fee Letter.
3.5 Place and Manner of Payments.
All payments of principal, interest, fees, expenses and
other amounts to be made by the Borrower under this Credit
Agreement shall be made without setoff, deduction or counterclaim
and received not later than 2:00 p.m. on the date when due, in
Dollars and in immediately available funds, by the Administrative
Agent at the Agency Services Address. In the event any such
payment shall be due on a day that is not a Business Day, the
applicable payment date shall be the next succeeding Business
Day, except, with respect to Eurodollar Loans, if the next
succeeding Business Day shall fall in the next succeeding
calendar month, then such payment shall be due on the next
preceding Business Day. The Borrower shall, at the time it makes
any payment under this Credit Agreement, specify to the
Administrative Agent, the Loans, fees or other amounts payable by
the Borrower hereunder to which such payment is to be applied
(and in the event that it fails to specify, or if such
application would be inconsistent with the terms hereof, the
Administrative Agent shall distribute such payment to the Lenders
in such manner as it reasonably determines in its sole
discretion.)
3.6 Pro Rata Treatment.
Except to the extent otherwise provided herein, all Loans,
each payment or prepayment of principal of any Loan, each payment
of interest on the Loans, each payment of Unused Fees, each
reduction of the Tranche A Term Loan Commitment, each reduction
of the Tranche B Term Loan Commitment and each conversion or
continuation of any Loans, shall be allocated pro rata among the
Lenders in accordance with the respective Commitment Percentages;
provided that, if any Lender shall have failed to pay its
applicable pro rata share of any Loan, then any amount to which
such Lender would otherwise be entitled pursuant to this
Section 3.6 shall instead be payable to the Administrative Agent
until the share of such Loan not funded by such Lender has been
repaid and any interest owed by such Lender as a result of such
failure to fund has been paid; and provided further, that in the
event any amount paid to any Lender pursuant to this Section 3.6
is rescinded or must otherwise be returned by the Administrative
Agent, each Lender shall, upon the request of the Administrative
Agent, repay to the Administrative Agent the amount so paid to
such Lender, with interest for the period commencing on the date
such payment is returned by the Administrative Agent until the
date the Administrative Agent receives such repayment at a rate
per annum equal to, during the period to but excluding the date
two Business Days after such request, the Federal Funds Rate, and
thereafter, the Base Rate plus two percent (2%) per annum.
3.7 Computations of Interest and Fees.
(a) Except for Base Rate Loans, on which interest
shall be computed on the basis of a 365 or 366 day year as
the case may be, all computations of interest and fees
hereunder shall be made on the basis of the actual number of
days elapsed over a year of 360 days. Interest shall accrue
from the date a Loan is made until the date such Loan is
repaid or continued or converted pursuant to Section 2.4.
(b) It is the intent of the Lenders and the Borrower
to conform to and contract in strict compliance with
applicable usury law from time to time in effect. All
agreements between the Lenders and the Borrower are hereby
limited by the provisions of this paragraph which shall
override and control all such agreements, whether now
existing or hereafter arising and whether written or oral.
In no way, nor in any event or contingency (including but
not limited to prepayment or acceleration of the maturity of
any obligation), shall the interest taken, reserved,
contracted for, charged, or received under this Credit
Agreement, under the Notes or otherwise, exceed the maximum
nonusurious amount permissible under applicable law. If,
from any possible construction of any of the Credit
Documents or any other document, interest would otherwise be
payable in excess of the maximum nonusurious amount, any
such construction shall be subject to the provisions of this
paragraph and interest owing pursuant to such documents
shall be automatically reduced to the maximum nonusurious
amount permitted under applicable law, without the necessity
of execution of any amendment or new document. If any
Lender shall ever receive anything of value which is
characterized as interest on the Loans under applicable law
and which would, apart from this provision, be in excess of
the maximum lawful amount, an amount equal to the amount
which would have been excessive interest shall, without
penalty, be applied to the reduction of the principal amount
owing on the Loans and not to the payment of interest, or
refunded to the Borrower or the other payor thereof if and
to the extent such amount which would have been excessive
exceeds such unpaid principal amount of the Loans. The
right to demand payment of the Loans or any other
indebtedness evidenced by any of the Credit Documents does
not include the right to receive any interest which has not
otherwise accrued on the date of such demand, and the
Lenders do not intend to charge or receive any unearned
interest in the event of such demand. All interest paid or
agreed to be paid to the Lenders with respect to the Loans
shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the
full stated term (including any renewal or extension) of the
Loans so that the amount of interest on account of such
indebtedness does not exceed the maximum nonusurious amount
permitted by applicable law.
3.8 Sharing of Payments.
Each Lender agrees that, in the event that any Lender shall
obtain payment in respect of any Loan or any other obligation
owing to such Lender under this Credit Agreement through the
exercise of a right of set-off, banker's lien, counterclaim or
otherwise (including, but not limited to, pursuant to the
Bankruptcy Code) in excess of its pro rata share as provided for
in this Credit Agreement, such Lender shall promptly purchase
from the other Lenders a participation in such Loans and other
obligations, in such amounts and with such other adjustments from
time to time, as shall be equitable in order that all Lenders
share such payment in accordance with their respective ratable
shares as provided for in this Credit Agreement. Each Lender
further agrees that if a payment to a Lender (which is obtained
by such Lender through the exercise of a right of set-off,
banker's lien, counterclaim or otherwise) shall be rescinded or
must otherwise be restored, each Lender which shall have shared
the benefit of such payment shall, by repurchase of a
participation theretofore sold, return its share of that benefit
to each Lender whose payment shall have been rescinded or
otherwise restored. The Borrower agrees that any Lender so
purchasing such a participation may, to the fullest extent
permitted by law, exercise all rights of payment, including set-
off, banker's lien or counterclaim, with respect to such
participation as fully as if such Lender were a holder of such
Loan or other obligation in the amount of such participation.
Except as otherwise expressly provided in this Credit Agreement,
if any Lender shall fail to remit to the Administrative Agent or
any other Lender an amount payable by such Lender to the
Administrative Agent or such other Lender pursuant to this Credit
Agreement on the date when such amount is due, such payments
shall accrue interest thereon, for each day from the date such
amount is due until the day such amount is paid to the
Administrative Agent or such other Lender, at a rate per annum
equal to the Federal Funds Rate. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives
a secured claim in lieu of a setoff to which this Section 3.8
applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders under this Section 3.8
to share in the benefits of any recovery on such secured claim.
3.9 Evidence of Debt.
(a) Each Lender shall maintain an account or accounts
evidencing each Loan made by such Lender to the Borrower
from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time
under this Credit Agreement. Each Lender will make
reasonable efforts to maintain the accuracy of its account
or accounts and to promptly update its account or accounts
from time to time, as necessary.
(b) The Administrative Agent shall maintain the
Register pursuant to Section 11.3(c), and a subaccount for
each Lender, in which Register and subaccounts (taken
together) shall be recorded (i) the amount, type and
Interest Period of each such Loan hereunder, (ii) the amount
of any principal or interest due and payable or to become
due and payable to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent
hereunder from or for the account of the Borrower and each
Lender's share thereof. The Administrative Agent will make
reasonable efforts to maintain the accuracy of the
subaccounts referred to in the preceding sentence and to
promptly update such subaccounts from time to time, as
necessary.
(c) The entries made in the accounts, Register and
subaccounts maintained pursuant to subsection (b) of this
Section 3.9 (and, if consistent with the entries of the
Administrative Agent, subsection (a)) shall be prima facie
evidence of the existence and amounts of the obligations of
the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to
maintain any such account, such Register or such subaccount,
as applicable, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay the Loans
made by such Lender in accordance with the terms hereof.
SECTION 4.
ADDITIONAL PROVISIONS REGARDING LOANS
4.1 Eurodollar Loan Provisions.
(a) Unavailability. In the event that the
Administrative Agent shall have determined in good faith (i)
that U.S. dollar deposits in the principal amounts requested
with respect to a Eurodollar Loan are not generally
available in the London interbank Eurodollar market or (ii)
that reasonable means do not exist for ascertaining the
Eurodollar Rate, the Administrative Agent shall, as soon as
practicable thereafter, give notice of such determination to
the Borrower and the Lenders. In the event of any such
determination under clauses (i) or (ii) above, until the
Administrative Agent shall have advised the Borrower and the
Lenders that the circumstances giving rise to such notice no
longer exist, (A) any request by the Borrower for Eurodollar
Loans shall be deemed to be a request for Base Rate Loans,
(B) any request by the Borrower for conversion into or
continuation of Eurodollar Loans shall be deemed to be a
request for conversion into or continuation of Base Rate
Loans and (C) any Loans that were to be converted or
continued as Eurodollar Loans on the first day of an
Interest Period shall be converted to or continued as Base
Rate Loans.
(b) Change in Legality.
(i) Notwithstanding any other provision herein,
if any change, after the date hereof, in any law,
governmental rule, regulation, guideline or order
(including the introduction of any new law,
governmental rule, regulation, guideline or order) or
in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation
or administration thereof shall make it unlawful for
any Lender to make or maintain any Eurodollar Loan or
to give effect to its obligations as contemplated
hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the
Administrative Agent, such Lender may:
(A) declare that Eurodollar Loans, and
conversions to or continuations of Eurodollar
Loans, will not thereafter be made by such Lender
hereunder, whereupon any request by the Borrower
for, or for conversion into or continuation of,
Eurodollar Loans shall, as to such Lender only, be
deemed a request for, or for conversion into or
continuation of, Base Rate Loans, unless such
declaration shall be subsequently withdrawn; and
(B) require that all outstanding Eurodollar
Loans made by it be converted to Base Rate Loans
in which event all such Eurodollar Loans shall be
automatically converted to Base Rate Loans.
In the event any Lender shall exercise its rights under
clause (A) or (B) above, all payments and prepayments of
principal which would otherwise have been applied to repay
the Eurodollar Loans that would have been made by such
Lender or the converted Eurodollar Loans of such Lender
shall instead be applied to repay the Base Rate Loans made
by such Lender in lieu of, or resulting from the conversion
of, such Eurodollar Loans.
(c) Requirements of Law. If at any time a Lender
shall incur increased costs or reductions in the amounts
received or receivable hereunder with respect to the making,
the commitment to make or the maintaining of any Eurodollar
Loan because of (i) any change after the date hereof, in any
law, governmental rule, regulation, guideline or order
(including the introduction of any new law, governmental
rule, regulation, guideline or order) or in the
interpretation or administration thereof by any Governmental
Authority charged with the interpretation or administration
thereof, including, without limitation, the imposition,
modification or deemed applicability of any reserves,
deposits or similar requirements (such as, for example, but
not limited to, a change in official reserve requirements,
but, in all events, excluding reserves required under
Regulation D to the extent included in the computation of
the Adjusted Eurodollar Rate) or (ii) other circumstances
affecting the London interbank Eurodollar market; then (A)
the Lender shall promptly notify the Administrative Agent
and the Borrower and shall designate a different lending
office of such Lender if such designation will avoid or
reduce the amount of such increased costs, or reductions in
amounts receivable and such designation will not, in such
Lender's sole discretion, be otherwise disadvantageous to
such Lender and (B) the Borrower shall promptly pay to such
Lender such additional amounts (in the form of an increased
rate of, or a different method of calculating, interest or
otherwise as such Lender may determine in its sole
discretion) as may be required to compensate such Lender for
such increased costs or reductions in amounts receivable
hereunder.
Each determination and calculation made by a Lender under
this Section 4.1 shall, absent manifest error, be binding and
conclusive on the parties hereto. Any conversions of Eurodollar
Loans made pursuant to this Section 4.1 shall subject the
Borrower to the payments required by Section 4.3. This Section
shall survive termination of this Credit Agreement and the other
Credit Documents and the payment of the Loans and all other
amounts payable hereunder.
4.2 Capital Adequacy.
If any Lender has determined in good faith that the adoption
or effectiveness, after the date hereof, of any applicable law,
rule or regulation regarding capital adequacy, or any change
therein (after the date hereof), or any change in the
interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such
Lender (or its parent corporation) with any request or directive
regarding capital adequacy (whether or not having the force of
law) of any such authority, central bank or comparable agency,
has or would have the effect of reducing the rate of return on
such Lender's (or parent corporation's) capital or assets as a
consequence of its commitments or obligations hereunder to a
level below that which such Lender (or its parent corporation)
could have achieved but for such adoption, effectiveness, change
or compliance (taking into consideration such Lender's (or parent
corporation's) policies with respect to capital adequacy), then,
upon notice from such Lender, the Borrower shall promptly pay to
such Lender such additional amount or amounts as will compensate
such Lender for such reduction. Each determination by any such
Lender of amounts owing under this Section 4.2 shall, absent
manifest error, be conclusive and binding on the parties hereto.
This Section shall survive termination of this Credit Agreement
and the other Credit Documents and the payment of the Loans and
all other amounts payable hereunder.
4.3 Compensation.
The Borrower promises to indemnify each Lender and to hold
each Lender harmless from any loss or expense which such Lender
may sustain or incur as a consequence of (a) default by the
Borrower in the making of a borrowing of, conversion into or
continuation of a Eurodollar Loan after the Borrower has given a
notice requesting the same in accordance with the provisions of
this Credit Agreement, (b) default by the Borrower in making any
prepayment of a Eurodollar Loan after the Borrower has given a
notice thereof in accordance with the provisions of this Credit
Agreement, (c) the making of a prepayment of a Eurodollar Loan on
a day which is not the last day of an Interest Period with
respect thereto and (d) the payment, continuation or conversion
of a Eurodollar Loan on a day which is not the last day of the
Interest Period applicable thereto or the failure to repay a
Eurodollar Loan when required by the terms of this Credit
Agreement. Each determination by any such Lender of amounts
owing under this Section 4.3 shall, absent manifest error, be
conclusive and binding on the parties hereto. This Section shall
survive the termination of this Credit Agreement and the other
Credit Documents and the payment of the Loans and all other
amounts payable hereunder.
4.4 Taxes.
(a) Except as provided below in this Section 4.4, all
payments made by the Borrower under this Credit Agreement
and any Notes shall be made free and clear of, and without
deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed
by any court, or governmental body, agency or other
official, excluding taxes measured by or imposed upon the
net income of any Lender or its applicable lending office,
or any branch or affiliate thereof, and all franchise taxes,
branch taxes, taxes on doing business or taxes on the
capital or net worth of any Lender or its applicable lending
office, or any branch or affiliate thereof, in each case
imposed in lieu of net income taxes: (i) by the jurisdiction
under the laws of which such Lender, applicable lending
office, branch or affiliate is organized or is located, or
in which its principal executive office is located, or any
nation within which such jurisdiction is located or any
political subdivision thereof; or (ii) by reason of any
connection between the jurisdiction imposing such tax and
such Lender, applicable lending office, branch or affiliate
other than a connection arising solely from such Lender
having executed, delivered or performed its obligations, or
received payment under or enforced, this Credit Agreement or
any Notes. If any such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions or withholdings ("Non-
Excluded Taxes") are required to be withheld from any
amounts payable to an Administrative Agent or any Lender
hereunder or under any Notes, (A) the amounts so payable to
the Administrative Agent or such Lender shall be increased
to the extent necessary to yield to the Administrative Agent
or such Lender (after payment of all Non-Excluded Taxes)
interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Credit Agreement
and any Notes, provided, however, that the Borrower shall be
entitled to deduct and withhold any Non- Excluded Taxes and
shall not be required to increase any such amounts payable
to any Lender that is not organized under the laws of the
United States of America or a state thereof if such Lender
fails to comply with the requirements of paragraph (b) of
this Section 4.4 whenever any Non-Excluded Taxes are payable
by the Borrower, and (B) as promptly as possible after
requested, the Borrower shall send to the Administrative
Agent for its own account or for the account of such Lender,
as the case may be, a certified copy of an original official
receipt received by the Borrower showing payment thereof. If
the Borrower fails to pay any Non-Excluded Taxes when due to
the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the
Administrative Agent and any Lender for any incremental Non-
Excluded Taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a
result of any such failure. The agreements in this Section
4.4 shall survive the termination of this Credit Agreement
and the payment of the Loans and all other amounts payable
hereunder.
(b) Each Lender that is not incorporated under the
laws of the United States of America or a state thereof
shall:
(i) (A) on or before the date of any
payment by the Borrower under this Credit
Agreement or the Notes to such Lender, deliver to
the Borrower and the Administrative Agent (x) two
duly completed copies of United States Internal
Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, certifying
that it is entitled to receive payments under
this Credit Agreement and any Notes without
deduction or withholding of any United States
federal income taxes and (y) an Internal Revenue
Service Form W-8 or W-9, or successor applicable
form, as the case may be, certifying that it is
entitled to an exemption from United States
backup withholding tax;
(B) deliver to the Borrower and the
Administrative Agent two further copies of any
such form or certification on or before the date
that any such form or certification expires or
becomes obsolete and after the occurrence of any
event requiring a change in the most recent form
previously delivered by it to the Borrower; and
(C) obtain such extensions of time for
filing and complete such forms or certifications
as may reasonably be requested by the Borrower or
the Administrative Agent; or
(ii) in the case of any such Lender that is not a
"bank" within the meaning of Section 881(c)(3)(A) of
the Internal Revenue Code, (A) represent to the
Borrower (for the benefit of the Borrower and the
Administrative Agent) that it is not a bank within the
meaning of Section 881 (c)(3)(A) of the Internal
Revenue Code, (B) agree to furnish to the Borrower, on
or before the date of any payment by the Borrower, with
a copy to the Administrative Agent, two accurate and
complete original signed copies of Internal Revenue
Service Form W-8, or successor applicable form
certifying to such Lender's legal entitlement at the
date of such certificate to an exemption from U.S.
withholding tax under the provisions of Section 881(c)
of the Internal Revenue Code with respect to payments
to be made under this Credit Agreement and any Notes
(and to deliver to the Borrower and the Administrative
Agent two further copies of such form on or before the
date it expires or becomes obsolete and after the
occurrence of any event requiring a change in the most
recently provided form and, if necessary, obtain any
extensions of time reasonably requested by the Borrower
or the Administrative Agent for filing and completing
such forms), and (C) agree, to the extent legally
entitled to do so, upon reasonable request by the
Borrower, to provide to the Borrower (for the benefit
of the Borrower and the Administrative Agent) such
other forms as may be reasonably required in order to
establish the legal entitlement of such Lender to an
exemption from withholding with respect to payments
under this Credit Agreement and any Notes.
Notwithstanding the above, if any change in
treaty, law or regulation has occurred after the date
such Person becomes a Lender hereunder which renders
all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the
Borrower and the Administrative Agent, then such Lender
shall be exempt from such requirements. Each Person
that shall become a Lender or a participant of a Lender
pursuant to Section 11.3 shall, upon the effectiveness
of the related transfer, be required to provide all of
the forms, certifications and statements required
pursuant to this subsection (b); provided that in the
case of a participant of a Lender, the obligations of
such participant of a Lender pursuant to this
subsection (b) shall be determined as if the
participant of a Lender were a Lender except that such
participant of a Lender shall furnish all such required
forms, certifications and statements to the Lender from
which the related participation shall have been
purchased.
SECTION 5.
CONDITIONS PRECEDENT
5.1 Closing Conditions.
The obligation of the Lenders to enter into this Credit
Agreement is subject to satisfaction (or waiver) of the following
conditions:
(a) EXECUTED CREDIT DOCUMENTS. Receipt by the
Administrative Agent of duly executed copies of (i) this
Credit Agreement, (ii) the Notes and (iii) all other Credit
Documents, each in form and substance acceptable to the
Lenders.
(b) CORPORATE DOCUMENTS. Receipt by the
Administrative Agent of the following:
(i) CHARTER DOCUMENTS. Copies of the articles of
incorporation or other charter documents of the
Borrower certified to be true and complete as of a
recent date by the appropriate Governmental Authorities
of the states or other jurisdictions of its
incorporation and certified by a secretary or assistant
secretary of the Borrower to be true and correct as of
the Closing Date.
(ii) BYLAWS. A copy of the bylaws of the Borrower
certified by a secretary or assistant secretary of the
Borrower to be true and correct as of the Closing Date.
(iii) RESOLUTIONS. Copies of resolutions of
the Board of Directors of the Borrower approving and
adopting the Credit Documents to which it is a party,
the transactions contemplated therein and authorizing
execution and delivery thereof, certified by a
secretary or assistant secretary of the Borrower to be
true and correct and in full force and effect as of the
Closing Date.
(iv) GOOD STANDING. Copies of certificates of
good standing, existence or its equivalent with respect
to the Borrower certified as of a recent date by the
appropriate Governmental Authorities of the states or
other jurisdictions of incorporation and each other
jurisdiction in which the failure to so qualify and be
in good standing would have a Material Adverse Effect.
(v) INCUMBENCY. An incumbency certificate of the
Borrower certified by a secretary or assistant
secretary of the Borrower to be true and correct as of
the Closing Date.
(c) OPINION OF COUNSEL. Receipt by the Administrative
Agent of an opinion, or opinions, from legal counsel to the
Borrower addressed to the Administrative Agent on behalf of
the Lenders and dated as of the Effective Date, in each case
satisfactory in form and substance to the Administrative
Agent.
(d) FINANCIAL STATEMENTS. Receipt by the Lenders of
the consolidated audited financial statements of the
Borrower and its Subsidiaries dated as of September 30, 1998
and September 30, 1999, and the unaudited financial
statements for the quarters ending December 31, 1999 and
March 31, 2000, including balance sheets and income and cash
flow statements, in each case audited (except for the
quarterly financial statement) by independent public
accountants of recognized standing and prepared in
accordance with GAAP.
(e) FEES AND EXPENSES. Payment by the Borrower of all
fees and expenses owed by it to the Lenders and the
Administrative Agent, including, without limitation, payment
to the Administrative Agent of the fees set forth in the Fee
Letter.
(f) MATERIAL ADVERSE EFFECT. No event or condition
shall have occurred since March 31, 2000 that has had or
would be reasonably expected to have a Material Adverse
Effect.
(g) OFFICER'S CERTIFICATES. The Administrative Agent
shall have received a certificate or certificates executed
by a Financial Officer of the Borrower as of the Effective
Date stating that (i) no action, suit, investigation or
legal, equitable, arbitration or administrative proceeding
is pending or, to such officer's knowledge, threatened in
any court or before any arbitrator or Governmental Authority
that would have or be reasonably expected to have a Material
Adverse Effect, (ii) the financial statements and
information delivered to the Administrative Agent on or
before the Effective Date were prepared in good faith and in
accordance with GAAP and (iii) immediately after giving
effect to this Credit Agreement, the other Credit Documents
and all the transactions contemplated herein and therein to
occur on such date, (A) no Default or Event of Default
exists, (B) all representations and warranties contained
herein and in the other Credit Documents are true and
correct in all material respects on and as of the date made,
(C) the Borrower is Solvent and (D) the Borrower is in
compliance with the financial covenant set forth in
Section 7.2.
(h) OTHER. Receipt by the Lenders of such other
documents, instruments, agreements or information as
reasonably requested by any Lender.
5.2 Conditions to Loans.
In addition to the conditions precedent stated elsewhere
herein, the Lenders shall not be obligated to make new Loans
unless:
(a) REQUEST. The Borrower shall have timely delivered
a duly executed and completed Notice of Borrowing in
conformance with all the terms and conditions of this Credit
Agreement.
(b) REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by the Borrower are true
and correct in all material respects at and as if made as of
the date of the funding of the requested Loans.
(c) NO DEFAULT. No Default or Event of Default shall
exist or be continuing either prior to or after giving
effect thereto.
(d) AVAILABILITY. Immediately after giving effect to
the making of a Loan (and the application of the proceeds
thereof) (i) if such Loan is a Tranche A Term Loan, the sum
of the amount of Tranche A Term Loans outstanding shall not
exceed the Tranche A Term Loan Commitment and (ii) if such
Loan is the Tranche B Term Loan, the amount of the Tranche B
Term Loan shall not exceed the Tranche B Term Loan
Commitment.
(e) MAXIMUM NUMBER OF LOANS. (i) with respect to
Tranche A Term Loans, after the making of such Loan, there
shall not have been advanced more than six Tranche A Term
Loans to the Borrower and (ii) with respect to the Tranche B
Term Loan, the making of such Loan shall be the sole funding
of the Tranche B Term Loan.
(f) DEBT RATING. The Debt Rating of the Borrower
shall be at least BBB from S&P and Baa2 from ▇▇▇▇▇'▇.
(g) CONSUMMATION OF ACQUISITION. With respect to the
Tranche B Term Loan, on and as of the date of funding of
such Loan, the Acquisition shall have been consummated on
terms substantially similar in all material respects to
those set forth in the Purchase and Sale Agreement as in
effect on April 13, 2000, other than any changes to the
Purchase and Sale Agreement that, in the reasonable judgment
of the Administrative Agent, do not materially adversely
affect the Borrower and its Subsidiaries or the rights of
the Lenders under this Credit Agreement.
The delivery of each Notice of Borrowing shall constitute a
representation and warranty by the Borrower of the correctness of
the matters specified in subsections (b) through (g) above.
SECTION 6.
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to each Lender
that:
6.1 Organization and Good Standing.
The Borrower (a) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdictions
of its incorporation, (b) is duly qualified and in good standing
as a foreign corporation authorized to do business in every
jurisdiction where the failure to so qualify would have or would
reasonably be expected to have a Material Adverse Effect and (c)
has the requisite corporate power and authority to own its
properties and to carry on its business as now conducted and as
proposed to be conducted.
6.2 Due Authorization.
The Borrower (a) has the requisite corporate power and
authority to execute, deliver and perform this Credit Agreement
and the other Credit Documents and to incur the obligations
herein and therein provided for and (b) has been authorized by
all necessary corporate action, to execute, deliver and perform
this Credit Agreement and the other Credit Documents.
6.3 No Conflicts.
Neither the execution and delivery of the Credit Documents,
nor the consummation of the transactions contemplated therein,
nor performance of and compliance with the terms and provisions
thereof by the Borrower will in any material respect (a) violate
or conflict with any provision of its articles of incorporation
or bylaws, (b) violate, contravene or conflict with any law
(including without limitation, the Public Utility Holding Company
Act of 1935, as amended), regulation (including without
limitation, Regulation U, Regulation X or any regulation
promulgated by the Federal Energy Regulatory Commission), order,
writ, judgment, injunction, decree or permit applicable to it,
(c) violate, contravene or conflict with contractual provisions
of, or cause an event of default under, any indenture, loan
agreement, mortgage, deed of trust, contract or other agreement
or instrument to which it is a party or by which it or its
properties may be bound, or (d) result in or require the creation
of any Lien upon or with respect to its properties.
6.4 Consents.
No consent, approval, authorization or order of, or filing,
registration or qualification with, any court or Governmental
Authority or third party is required in connection with the
execution, delivery or performance of this Credit Agreement or
any of the other Credit Documents.
6.5 Enforceable Obligations.
This Credit Agreement and the other Credit Documents have
been duly executed and delivered and constitute legal, valid and
binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms, except as may
be limited by bankruptcy or insolvency laws or similar laws
affecting creditors' rights generally or by general equitable
principles.
6.6 Financial Condition.
(a) The financial statements delivered to the Lenders
pursuant to Section 5.1(d) and pursuant to Section 7.1(a)
and (b): (i) have been prepared in accordance with GAAP
(subject to the provisions of Section 1.3) and (ii) present
fairly in all material respects the financial condition,
results of operations, and cash flows of the Borrower and
its Subsidiaries as of such date and for such periods.
(b) Other than the Missouri Property Acquisition,
since March 31, 2000, there has been no sale, transfer or
other disposition by the Borrower of any material part of
the business or property of the Borrower, and no purchase or
other acquisition by the Borrower of any business or
property (including any Capital Stock of any other Person)
material in relation to the financial condition of the
Borrower (other than the Acquisition), in each case, which,
is not (i) reflected in the most recent financial statements
delivered to the Lenders pursuant to Section 7.1 or in the
notes thereto or (ii) otherwise permitted by the terms of
this Credit Agreement and communicated to the Administrative
Agent.
6.7 No Material Change.
Since March 31, 2000, there has been no development or event
relating to or affecting the Borrower or any of its Subsidiaries
that has had or would be reasonably expected to have a Material
Adverse Effect, it being understood that the consummation of the
Acquisition, in and of itself, shall not constitute a Material
Adverse Effect.
6.8 No Default.
No Default or Event of Default presently exists and is
continuing.
6.9 Litigation.
There are no actions, suits, investigations or legal,
equitable, arbitration or administrative proceedings pending or,
to the knowledge of the Borrower, threatened against the
Borrower, any of its Subsidiaries or any of its properties which
could have or be reasonably expected to have a Material Adverse
Affect.
6.10 Taxes.
The Borrower and its Subsidiaries have filed, or caused to
be filed, all tax returns (federal, state, local and foreign)
required to be filed and paid all amounts of taxes shown thereon
to be due (including interest and penalties) and has paid all
other taxes, fees, assessments and other governmental charges
(including mortgage recording taxes, documentary stamp taxes and
intangibles taxes) owing by it, except for such taxes which are
not yet delinquent or that are being contested in good faith and
by proper proceedings, and against which adequate reserves are
being maintained in accordance with GAAP.
6.11 Compliance with Law.
The Borrower and each of its Subsidiaries is in compliance
with all laws, rules, regulations, orders and decrees applicable
to it or to its properties, except where the failure to be in
compliance would not have or would not reasonably be expected to
have a Material Adverse Effect.
6.12 Material Agreements.
Neither the Borrower nor any of its Subsidiaries is in
default in any respect under any contract, lease, loan agreement,
indenture, mortgage, security agreement or other agreement or
obligation to which it is a party or by which any of its
properties is bound which default has had or would be reasonably
expected to have a Material Adverse Effect.
6.13 ERISA.
Except as would not result or be reasonably expected to
result in a Material Adverse Effect:
(a) During the five-year period prior to the date on
which this representation is made or deemed made: (i) no
Termination Event has occurred, and, to the best knowledge
of the Borrower, no event or condition has occurred or
exists as a result of which any Termination Event is
reasonably expected to occur, with respect to any Plan; (ii)
no "accumulated funding deficiency," as such term is defined
in Section 302 of ERISA and Section 412 of the Code, whether
or not waived, has occurred with respect to any Plan; (iii)
each Plan has been maintained, operated, and funded in
material compliance with its own terms and in material
compliance with the provisions of ERISA, the Code, and any
other applicable federal or state laws; and (iv) no Lien in
favor or the PBGC or a Plan has arisen or is reasonably
expected to arise on account of any Plan.
(b) No liability has been or is reasonably expected by
the Borrower to be incurred under Sections 4062, 4063 or
4064 of ERISA with respect to any Single Employer Plan by
the Borrower or any of its Subsidiaries which has or would
reasonably be expected to have a Material Adverse Effect.
(c) The actuarial present value of all "benefit
liabilities" under each Single Employer Plan (determined
within the meaning of Section 401(a)(2) of the Code,
utilizing the actuarial assumptions used to fund such
Plans), whether or not vested, did not, as of the last
annual valuation date prior to the date on which this
representation is made or deemed made, exceed the current
value of the assets of such Plan allocable to such accrued
liabilities, except as disclosed in the Borrower's financial
statements.
(d) Neither the Borrower nor any ERISA Affiliate has
incurred, or, to the best knowledge of the Borrower, is
reasonably expected to incur, any withdrawal liability under
ERISA to any Multiemployer Plan or Multiple Employer Plan.
Neither the Borrower nor any ERISA Affiliate has received
any notification that any Multiemployer Plan is in
reorganization (within the meaning of Section 4241 of
ERISA), is insolvent (within the meaning of Section 4245 of
ERISA), or has been terminated (within the meaning of Title
IV of ERISA), and no Multiemployer Plan is, to the best
knowledge of the Borrower, reasonably expected to be in
reorganization, insolvent, or terminated.
(e) No prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Code) or breach
of fiduciary responsibility has occurred with respect to a
Plan which has subjected or is reasonably likely to subject
the Borrower or any ERISA Affiliate to any liability under
Sections 406, 407, 409, 502(i), or 502(l) of ERISA or
Section 4975 of the Code, or under any agreement or other
instrument pursuant to which the Borrower or any ERISA
Affiliate has agreed or is required to indemnify any person
against any such liability.
(f) The present value (determined using actuarial and
other assumptions which are reasonable with respect to the
benefits provided and the employees participating) of the
liability of the Borrower and each ERISA Affiliate for post-
retirement welfare benefits to be provided to their current
and former employees under Plans which are welfare benefit
plans (as defined in Section 3(1) of ERISA), net of all
assets under all such Plans allocable to such benefits, are
reflected on the financial statements referenced in
Section 7.1 in accordance with FASB 106.
(g) Each Plan which is a welfare plan (as defined in
Section 3(1) of ERISA) to which Sections 601-609 of ERISA
and Section 4980B of the Code apply has been administered in
compliance in all material respects with such sections.
6.14 Use of Proceeds.
The proceeds of the Loans hereunder will be used solely for
the purposes specified in Section 7.8. None of such proceeds
will be used for the acquisition of another Person unless the
board of directors (or other comparable governing body) or
stockholders, as appropriate, of such Person has approved such
acquisition.
6.15 Government Regulation.
(a) No proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any
"margin stock" within the meaning of Regulation U, or for
the purpose of purchasing or carrying or trading in any
securities. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the
foregoing effect in conformity with the requirements of FR
Form U-1 referred to in Regulation U. No indebtedness being
reduced or retired out of the proceeds of the Loans was or
will be incurred for the purpose of purchasing or carrying
any margin stock within the meaning of Regulation U or any
"margin security" within the meaning of Regulation T.
"Margin stock" within the meaning of Regulation U does not
constitute more than 25% of the value of the consolidated
assets of the Borrower and its Subsidiaries. None of the
transactions contemplated by the Credit Documents
(including, without limitation, the direct or indirect use
of the proceeds of the Loans) will violate or result in a
violation of the Securities Act or the Exchange Act.
(b) Neither the Borrower nor any of its Subsidiaries
is (i) an "investment company" registered or required to be
registered under the Investment Company Act of 1940, as
amended, and is not controlled by an "investment company",
or (ii) a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company"
or of a "subsidiary" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935,
as amended.
(c) No director, executive officer or principal
shareholder of the Borrower or any of its Subsidiaries is a
director, executive officer or principal shareholder of any
Lender. For the purposes hereof the terms "director",
"executive officer" and "principal shareholder" (when used
with reference to any Lender) have the respective meanings
assigned thereto in Regulation O.
6.16 Disclosure.
Neither this Credit Agreement nor any financial statements
delivered to the Lenders nor any other document, certificate or
statement furnished to the Lenders by or on behalf of the
Borrower in connection with the transactions contemplated hereby
contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements
contained therein or herein, taken as a whole, not misleading.
6.17 Environmental Matters.
Except as would not result or be reasonably expected to
result in a Material Adverse Effect: (a) each of the properties
of the Borrower and its Subsidiaries (the "Properties") and all
operations at the Properties are in compliance in all material
respects with all applicable Environmental Laws, (b) there is no
violation of any Environmental Law with respect to the Properties
or the businesses operated by the Borrower or its Subsidiaries
(the "Businesses"), and (c) there are no conditions relating to
the Businesses or Properties that would reasonably be expected to
give rise to a material liability under any applicable
Environmental Laws.
6.18 Insurance.
The Borrower and its Subsidiaries maintain insurance with
responsible and reputable insurance companies or associations in
such amounts and covering such risks as is usually carried by
companies engaged in similar business and owning similar
properties in the same general areas in which the Borrower and
its Subsidiaries operate.
6.19 Franchises, Licenses, Etc.
The Borrower and its Subsidiaries possess all material
franchises, certificates, licenses, permits and other
authorizations necessary for the operation of their respective
businesses.
6.20 Secured Indebtedness.
All of the secured indebtedness of the Borrower is set forth
on Schedule 6.20 or permitted by Section 8.6.
6.21 Subsidiaries.
All Subsidiaries of the Borrower and the designation as to
which such Subsidiaries are Material Subsidiaries are set forth
on Schedule 6.21. Schedule 6.21 may be updated from time to time
by the Borrower.
6.22 Solvency.
The Borrower is and, after the consummation of the
transactions contemplated by this Credit Agreement and the other
Credit Documents, will be Solvent.
SECTION 7.
AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees that so long as
this Credit Agreement is in effect and until the Loans, together
with interest, fees and other obligations hereunder, have been
paid in full and the Commitments shall have terminated:
7.1 Information Covenants.
The Borrower will furnish, or cause to be furnished, to the
Administrative Agent:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as
available, and in any event within 120 days after the close
of each fiscal year of the Borrower, a consolidated balance
sheet and income statement of the Borrower and its
Subsidiaries, as of the end of such fiscal year, together
with retained earnings and a consolidated statement of cash
flows for such fiscal year setting forth in comparative form
figures for the preceding fiscal year, all such financial
information described above to be in reasonable form and
detail and audited by independent certified public
accountants of recognized national standing reasonably
acceptable to the Administrative Agent and whose opinion
shall be furnished to the Administrative Agent, shall be to
the effect that such financial statements have been prepared
in accordance with GAAP (except for changes with which such
accountants concur) and shall not be limited as to the scope
of the audit or qualified in any respect.
(b) QUARTERLY FINANCIAL STATEMENTS. As soon as
available, and in any event within 65 days after the close
of each fiscal quarter of the Borrower (other than the
fourth fiscal quarter, in which case 120 days after the end
thereof) a consolidated balance sheet and income statement
of the Borrower and its Subsidiaries, as of the end of such
fiscal quarter, together with a related consolidated
statement of cash flows for such fiscal quarter in each case
setting forth in comparative form figures for the
corresponding period of the preceding fiscal year, all such
financial information described above to be in reasonable
form and detail and reasonably acceptable to the
Administrative Agent, and accompanied by a certificate of a
Financial Officer of the Borrower to the effect that such
quarterly financial statements fairly present in all
material respects the financial condition of the Borrower
and have been prepared in accordance with GAAP, subject to
changes resulting from audit and normal year-end audit
adjustments.
(c) OFFICER'S CERTIFICATE. At the time of delivery of
the financial statements provided for in Sections 7.1(a) and
7.1(b) above, a certificate of a Financial Officer of the
Borrower, substantially in the form of Exhibit 7.1(c),
(i) demonstrating compliance with Section 7.2 by calculation
thereof as of the end of each such fiscal period and
(ii) stating that no Default or Event of Default exists, or
if any Default or Event of Default does exist, specifying
the nature and extent thereof and what action the Borrower
proposes to take with respect thereto.
(d) REPORTS. Promptly upon transmission or receipt
thereof, copies of any filings and registrations with, and
reports to or from, any Governmental Authority, including,
without limitation, the Securities and Exchange Commission
or any successor agency and any utility regulatory body.
(e) NOTICES. Upon the Borrower obtaining knowledge
thereof, the Borrower will give written notice to the
Administrative Agent immediately of (i) the occurrence of a
Default or Event of Default, specifying the nature and
existence thereof and what action the Borrower proposes to
take with respect thereto and (ii) the occurrence of any of
the following with respect to the Borrower or any
Subsidiary: (A) the pendency or commencement of any
litigation, arbitration or governmental proceeding against
the Borrower or such Subsidiary which, if adversely
determined, would have or would be reasonably expected to
have a Material Adverse Effect or (B) the institution of any
proceedings against the Borrower or such Subsidiary with
respect to, or the receipt of notice by such Person of
potential liability or responsibility for violation or
alleged violation of any federal, state or local law, rule
or regulation (including, without limitation, any
Environmental Law), the violation of which would have or
would be reasonably expected to have a Material Adverse
Effect.
(f) ERISA. Upon the Borrower or any ERISA Affiliate
obtaining knowledge thereof, the Borrower will give written
notice to the Administrative Agent and each of the Lenders
promptly (and in any event within five Business Days) of:
(i) any event or condition, including, but not limited to,
any Reportable Event, that constitutes, or would be
reasonably expected to lead to, a Termination Event; (ii)
any communication from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to
administer any Plan together with a statement of the amount
of liability, if any, incurred or expected to be incurred by
the Borrower or any Subsidiary in connection therewith;
(iii) with respect to any Multiemployer Plan, the receipt of
notice as prescribed in ERISA or otherwise of any withdrawal
liability assessed against the Borrower or any ERISA
Affiliate, or of a determination that any Multiemployer Plan
is in reorganization or insolvent (both within the meaning
of Title IV of ERISA); (iv) the failure to make full payment
on or before the due date (including extensions) thereof of
all amounts which the Borrower or any of its Subsidiaries or
ERISA Affiliates is required to contribute to each Plan
pursuant to its terms and as required to meet the minimum
funding standard set forth in ERISA and the Code with
respect thereto; or (v) any change in the funding status of
any Plan that would have or would be reasonably expected to
have a Material Adverse Effect; together, with a description
of any such event or condition or a copy of any such notice
and a statement by a officer of the Borrower briefly setting
forth the details regarding such event, condition, or
notice, and the action, if any, which has been or is being
taken or is proposed to be taken by the Borrower with
respect thereto. Promptly upon request, the Borrower shall
furnish the Administrative Agent and each of the Lenders
with such additional information concerning any Plan as may
be reasonably requested, including, but not limited to,
copies of each annual report/return (Form 5500 series), as
well as all schedules and attachments thereto required to be
filed with the Department of Labor and/or the Internal
Revenue Service pursuant to ERISA and the Code,
respectively, for each "plan year" (within the meaning of
Section 3(39) of ERISA).
(g) OTHER INFORMATION. With reasonable promptness
upon any such request, such other information regarding the
business, properties or financial condition of the Borrower
as the Administrative Agent or the Required Lenders may
reasonably request.
7.2 Debt to Capitalization Ratio.
At all times during the periods set forth below, the Debt to
Capitalization Ratio shall be less than or equal to the
following:
(a) from the Effective Date to the date on which the
Acquisition is consummated, .70 to 1.0;
(b) if the Acquisition is consummated on or before May
___, 2001, from the first Business Day following the date
the Acquisition is consummated to May ___, 2001, .75 to 1.0;
and
(c) from May ___, 2001 and thereafter, .70 to 1.0.
7.3 Preservation of Existence, Franchises and Assets.
The Borrower will, and will cause its Subsidiaries to, do
all things necessary to preserve and keep in full force and
effect its existence, rights, franchises and authority, except
where failure to do so would not or would not reasonably be
expected to have a Material Adverse Effect. The Borrower will,
and will cause its Subsidiaries to, generally maintain its
properties, real and personal, in good condition, and the
Borrower and its Subsidiaries shall not waste or otherwise permit
such properties to deteriorate, reasonable wear and tear
excepted, except where failure to do so would not or would not
reasonably be expected to have a Material Adverse Effect.
7.4 Books and Records.
The Borrower will, and will cause its Subsidiaries to, keep
complete and accurate books and records of its transactions in
accordance with good accounting practices on the basis of GAAP
(including the establishment and maintenance of appropriate
reserves).
7.5 Compliance with Law.
The Borrower will, and will cause its Subsidiaries to,
comply with, and obtain all permits and licenses required by, all
laws (including, without limitation, all Environmental Laws and
ERISA laws), rules, regulations and orders, and all applicable
restrictions imposed by all Governmental Authorities, applicable
to it and its property, if the failure to comply would have or
would be reasonably expected to have a Material Adverse Effect.
7.6 Payment of Taxes and Other Indebtedness.
The Borrower will, and will cause its Subsidiaries to, pay,
settle or discharge (a) all taxes, assessments and governmental
charges or levies imposed upon it, or upon its income or profits,
or upon any of its properties, before they shall become
delinquent, (b) all lawful claims (including claims for labor,
materials and supplies) which, if unpaid, might give rise to a
Lien upon any of its properties, and (c) all of its other
indebtedness as it shall become due (to the extent such repayment
is not otherwise prohibited by this Credit Agreement); provided,
however, that the Borrower shall not be required to pay any such
tax, assessment, charge, levy, claim or indebtedness which is
being contested in good faith by appropriate action and as to
which adequate reserves therefor, if required, have been
established in accordance with GAAP, unless the failure to make
any such payment (i) would give rise to an immediate right to
foreclose or collect on a Lien securing such amounts or (ii)
would have or would reasonably be expected to have a Material
Adverse Effect.
7.7 Insurance.
The Borrower will, and will cause its Subsidiaries to, at
all times maintain in full force and effect insurance (including
worker's compensation insurance, liability insurance, casualty
insurance and business interruption insurance) with responsible
and reputable insurance companies in such amounts, covering such
risks and liabilities and with such deductibles or self-insurance
retentions as are in accordance with normal industry practice.
7.8 Use of Proceeds.
(a) The proceeds of the Tranche A Term Loans shall be
used solely to refinance indebtedness outstanding under the
1987, 1989, 1991, 1992 and 1994 Note Purchase Agreements,
together with accrued interest thereunder and any prepayment
premiums with respect thereto.
(b) The proceeds of the Tranche B Term Loan shall be
used solely to finance the Acquisition and transaction costs
in connection therewith.
7.9 Audits/Inspections.
Upon reasonable prior notice and during normal business
hours, the Borrower will permit representatives appointed by the
Administrative Agent, including, without limitation, independent
accountants, agents, attorneys, and appraisers to visit and
inspect the Borrower's and its Subsidiaries' property, including
their books and records, their accounts receivable and inventory,
the Borrower's and its Subsidiaries' facilities and their other
business assets, and to make photocopies or photographs thereof
and to write down and record any information such representative
obtains and shall permit the Administrative Agent or its
representatives to investigate and verify the accuracy of
information provided to the Lenders and to discuss all such
matters with the officers, employees and representatives of the
Borrower and its Subsidiaries.
SECTION 8.
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that so long as
this Credit Agreement is in effect and until the Loans, together
with interest, fees and other obligations hereunder, have been
paid in full and the Commitments shall have terminated:
8.1 Nature of Business.
The Borrower will not materially alter the character of its
business from that conducted as of the Closing Date.
8.2 Consolidation and Merger.
The Borrower will not (a) enter into any transaction of
merger, or (b) consolidate, liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution); provided that, so
long as no Default or Event of Default shall exist or be caused
thereby, a Person may be merged or consolidated with or into the
Borrower so long as the Borrower shall be the continuing or
surviving corporation.
8.3 Sale or Lease of Assets.
Within any twelve month period, the Borrower will not, nor
will it permit any Subsidiary to, convey, sell, lease, transfer
or otherwise dispose of assets, business or operations with a net
book value in excess of 25% of Total Assets as calculated as of
the end of the most recent fiscal quarter.
8.4 Arm's-Length Transactions.
The Borrower will not, nor will it permits its Subsidiaries
to, enter into any transaction or series of transactions, whether
or not in the ordinary course of business, with any officer,
director or Affiliate other than on terms and conditions
substantially as favorable as would be obtainable in a comparable
arm's-length transaction with a Person other than an officer,
director or Affiliate.
8.5 Fiscal Year; Organizational Documents.
The Borrower will not (a) change its fiscal year or (b) in
any manner that would reasonably be expected to materially
adversely affect the rights of the Lenders, change its
organizational documents or its bylaws; it being understood that
the Borrower's shareholders may approve an amendment to the
Borrower's Articles of Incorporation to permit the issuance of
Preferred Securities.
8.6 Liens.
The Borrower will not, nor will it permit any of its
Material Subsidiaries to, contract, create, incur, assume or
permit to exist any Lien with respect to any of its property or
assets of any kind (whether real or personal, tangible or
intangible), whether now owned or after acquired, except for the
following: (a) Liens securing Borrower Obligations, (b) Liens
for taxes not yet due or Liens for taxes being contested in good
faith by appropriate action and for which adequate reserves, if
required, determined in accordance with GAAP have been
established (and as to which the property subject to any such
Lien is not yet subject to foreclosure, sale or loss on account
thereof), (c) Liens in respect of property imposed by law arising
in the ordinary course of business such as materialmen's,
mechanics', warehousemen's, carrier's, landlords' and other
nonconsensual statutory Liens which are not yet due and payable,
which have been in existence less than 90 days or which are being
contested in good faith by appropriate action and for which
adequate reserves, if required, determined in accordance with
GAAP have been established (and as to which the property subject
to any such Lien is not yet subject to foreclosure, sale or loss
on account thereof), (d) pledges or deposits made in the ordinary
course of business to secure payment of worker's compensation
insurance, unemployment insurance, pensions or social security
programs, (e) Liens arising from good faith deposits in
connection with or to secure performance of tenders, bids,
leases, government contracts, performance and return-of-money
bonds and other similar obligations incurred in the ordinary
course of business (other than obligations in respect of the
payment of borrowed money), (f) Liens arising from good faith
deposits in connection with or to secure performance of statutory
obligations and surety and appeal bonds, (g) easements, rights-of-
way, restrictions (including zoning restrictions), minor defects
or irregularities in title and other similar charges or
encumbrances not, in any material respect, impairing the use of
the encumbered property for its intended purposes, (h) judgment
Liens that would not constitute an Event of Default, (i) Liens
arising by virtue of any statutory or common law provision
relating to banker's liens, rights of setoff or similar rights as
to deposit accounts or other funds maintained with a creditor
depository institution, (j) any Lien on any assets securing
indebtedness incurred or assumed for the purpose of financing all
or any part of the cost of acquiring such assets; provided that
such Lien attaches to such asset concurrently with or within 90
days after the acquisition thereof, (k) any Lien on any asset of
any Person existing at the time such Person is merged or
consolidated with or into the Borrower or one of its Subsidiaries
and not created in contemplation of such event, (l) any Lien
existing on any asset prior to the acquisition thereof by the
Borrower or one of its Subsidiaries and not created in
contemplation of such acquisition, (m) any Lien (whether such
Lien applies to current assets or after-acquired property, or
both) on any assets of the Borrower or such Material Subsidiary
created pursuant to the 1957 Indenture or the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇;
provided that any Lien on any assets of the Borrower or such
Material Subsidiary that are specifically excluded as collateral
under such Indentures shall not be deemed to be a Permitted Lien
hereunder, (n) any Lien (whether such Lien applies to current
assets or after-acquired property, or both) on any Fixed Assets
of the Borrower or such Material Subsidiaries created or arising
at any time pursuant to or under (i) Section 4.08 of each of the
1987 Note Purchase Agreements and the 1989 Note Purchase
Agreement, (ii) Section 4.8 of each of the 1991 Note Purchase
Agreement, the 1992 Note Purchase Agreement and the 1994 Note
Purchase Agreement or (iii) any similar provision utilizing the
same or a similar cash flow-to-debt test, contained in any other
loan agreement that the Borrower may enter into after the
Effective Date, which agreement grants a loan or extends credit
to the Borrower with a maturity date in excess of one year,
(n) any Lien on the assets of the Borrower pursuant to
Section 803 of the 1998 Indenture or Section 803 of the 2000
Indenture, if placed on the property of the Borrower on a pro
rata basis only with other Liens that may be placed on the
properties of the Borrower in the future, (o) Liens on Fixed
Assets not otherwise permitted by this Credit Agreement securing
indebtedness in the aggregate (at the time such Liens are
created) not in excess of five percent (5%) of Consolidated Net
Property, and (p) any extension, renewal or replacement (or
successive extensions, renewals or replacements), as a whole or
in part, of any Liens referred to in the foregoing clauses (a)
through (o), for amounts not exceeding the principal amount of
the indebtedness secured by the Lien so extended, renewed or
replaced; provided that such extension, renewal or replacement
Lien is limited to all or a part of the same property or assets
that were covered by the Lien extended, renewed or replaced (plus
improvements on such property or assets).
SECTION 9.
EVENTS OF DEFAULT
9.1 Events of Default.
An Event of Default shall exist upon the occurrence of any
of the following specified events (each an "Event of Default"):
(a) PAYMENT. The Borrower shall default in the
payment (i) when due of any principal of any of the Loans or
(ii) within one Business Day of when due of any interest on
the Loans or of any fees or other amounts owing hereunder,
under any of the other Credit Documents or in connection
herewith.
(b) REPRESENTATIONS. Any representation, warranty or
statement made or deemed to be made by the Borrower herein,
in any of the other Credit Documents, or in any statement or
certificate delivered or required to be delivered pursuant
hereto or thereto shall prove untrue in any material respect
on the date as of which it was deemed to have been made.
(c) COVENANTS. The Borrower shall:
(i) default in the due performance or observance
of any term, covenant or agreement contained in
Sections 7.2, 7.3, 7.4, 7.5, 7.9 or 8.1 through 8.6
inclusive; or
(ii) default in the due performance or observance
by it of any term, covenant or agreement contained in
Section 7.1 and such default shall continue unremedied
for a period of five Business Days after the earlier of
the Borrower becoming aware of such default or notice
thereof given by the Administrative Agent; or
(iii) default in the due performance or
observance by it of any term, covenant or agreement
(other than those referred to in subsections (a), (b),
(c)(i), or (c)(ii) of this Section 9.1) contained in
this Credit Agreement or any other Credit Document and
such default shall continue unremedied for a period of
at least 30 days after the earlier of the Borrower
becoming aware of such default or notice thereof given
by the Administrative Agent.
(d) CREDIT DOCUMENTS. The Borrower shall default in
the due performance or observance of any term, covenant or
agreement in any of the other Credit Documents and such
default shall continue unremedied for a period of at least
30 days after the earlier of the Borrower becoming aware of
such default or notice thereof given by the Administrative
Agent or (ii) any Credit Document shall fail to be in full
force and effect or the Borrower shall so assert or any
Credit Document shall fail to give the Administrative Agent
and/or the Lenders the rights, powers and privileges
purported to be created thereby.
(e) BANKRUPTCY, ETC. The occurrence of any of the
following with respect to the Borrower or any of its
Material Subsidiaries: (i) a court or governmental agency
having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Borrower or any of its
Material Subsidiaries in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or appoint a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar
official of the Borrower or any of its Material Subsidiaries
or for any substantial part of its property or order the
winding up or liquidation of its affairs; or (ii) an
involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect is commenced
against the Borrower or any of its Material Subsidiaries and
such petition remains unstayed and in effect for a period of
60 consecutive days; or (iii) the Borrower or any of its
Material Subsidiaries shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law,
or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of such Person or any
substantial part of its property or make any general
assignment for the benefit of creditors; or (iv) the
Borrower or any of its Material Subsidiaries shall admit in
writing its inability to pay its debts generally as they
become due or any action shall be taken by such Person in
furtherance of any of the aforesaid purposes.
(f) DEFAULTS UNDER OTHER AGREEMENTS. With respect to
(x) any secured indebtedness of the Borrower or (y) any
other indebtedness in excess of $20,000,000 (other than
indebtedness outstanding under this Credit Agreement) of the
Borrower (A) the Borrower shall (1) default in any payment
(beyond the applicable grace period with respect thereto, if
any) with respect to any such indebtedness, or (2) default
(after giving effect to any applicable grace period) in the
observance or performance of any covenant or agreement
relating to such indebtedness or contained in any instrument
or agreement evidencing, securing or relating thereto, or
any other event or condition shall occur or condition exist,
the effect of which default or other event or condition is
to cause, or permit, the holder of the holders of such
indebtedness (or trustee or agent on behalf of such holders)
to cause (determined without regard to whether any notice or
lapse of time is required) any such indebtedness to become
due prior to its stated maturity; or (B) any such
indebtedness shall be declared due and payable, or required
to be prepaid other than by a regularly scheduled required
prepayment prior to the stated maturity thereof; or (C) any
such indebtedness shall mature and remain unpaid.
(g) JUDGMENTS. One or more judgments, orders, or
decrees shall be entered against the Borrower involving a
liability of $20,000,000 or more, in the aggregate, (to the
extent not paid or covered by insurance provided by a
carrier who has acknowledged coverage) and such judgments,
orders or decrees shall continue unsatisfied, undischarged
and unstayed for a period ending on the first to occur of
(i) the last day on which such judgment, order or decree
becomes final and unappealable and, where applicable, with
the status of a judicial lien or (ii) 60 days; provided that
if such judgment, order or decree provides for periodic
payments over time then the Borrower shall have a grace
period of 30 days with respect to each such periodic
payment.
(h) ERISA. The occurrence of any of the following
events or conditions if any of the same would be reasonably
expected to result in a liability of an amount greater than
or equal to $20,000,000: (A) any "accumulated funding
deficiency," as such term is defined in Section 302 of ERISA
and Section 412 of the Code, whether or not waived, shall
exist with respect to any Plan, or any lien shall arise on
the assets of the Borrower or any ERISA Affiliate in favor
of the PBGC or a Plan; (B) a Termination Event shall occur
with respect to a Single Employer Plan, which is, in the
reasonable opinion of the Administrative Agent, likely to
result in the termination of such Plan for purposes of Title
IV of ERISA; (C) a Termination Event shall occur with
respect to a Multiemployer Plan or Multiple Employer Plan,
which is, in the reasonable opinion of the Administrative
Agent, likely to result in (i) the termination of such Plan
for purposes of Title IV of ERISA, or (ii) the Borrower or
any ERISA Affiliate incurring any liability in connection
with a withdrawal from, reorganization of (within the
meaning of Section 4241 of ERISA), or insolvency (within the
meaning of Section 4245 of ERISA) of such Plan; or (D) any
prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility shall occur which would be reasonably
expected to subject the Borrower or any ERISA Affiliate to
any liability under Sections 406, 409, 502(i), or 502(l) of
ERISA or Section 4975 of the Code, or under any agreement or
other instrument pursuant to which the Borrower or any ERISA
Affiliate has agreed or is required to indemnify any person
against any such liability.
(i) CHANGE OF CONTROL. The occurrence of any Change
of Control.
9.2 Acceleration; Remedies.
Upon the occurrence and during the continuation of an Event
of Default, the Administrative Agent may, with the consent of the
Required Lenders, and shall, upon the request and direction of
the Required Lenders, by written notice to the Borrower take any
of the following actions without prejudice to the rights of the
Administrative Agent or any Lender to enforce its claims against
the Borrower, except as otherwise specifically provided for
herein:
(i) TERMINATION OF COMMITMENTS. Declare the
Commitments terminated whereupon the Commitments shall be
immediately terminated.
(ii) ACCELERATION OF LOANS. Declare the unpaid amount
of all Borrower Obligations to be due whereupon the same
shall be immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.
(iii) ENFORCEMENT OF RIGHTS. Enforce any and all
rights and interests created and existing under the Credit
Documents, including, without limitation, all rights of set-
off.
Notwithstanding the foregoing, if an Event of Default specified
in Section 9.1(e) shall occur, then the Commitments shall
automatically terminate and all Loans, all accrued interest in
respect thereof, all accrued and unpaid fees and other
indebtedness or obligations owing to the Lenders and the
Administrative Agent hereunder shall immediately become due and
payable without the giving of any notice or other action by the
Administrative Agent or the Lenders.
Notwithstanding the fact that enforcement powers reside primarily
with the Administrative Agent, each Lender has, to the extent
permitted by law, a separate right of payment and shall be
considered a separate "creditor" holding a separate "claim"
within the meaning of Section 101(5) of the Bankruptcy Code or
any other insolvency statute.
9.3 Allocation of Payments After Event of Default.
Notwithstanding any other provisions of this Credit
Agreement, after the occurrence of an Event of Default, all
amounts collected or received by the Administrative Agent or any
Lender on account of amounts outstanding under any of the Credit
Documents shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket
costs and expenses (including without limitation reasonable
attorneys' fees) of the Administrative Agent or any of the
Lenders in connection with enforcing the rights of the
Lenders under the Credit Documents, pro rata as set forth
below;
SECOND, to payment of any fees owed to the
Administrative Agent, or any Lender, pro rata as set forth
below;
THIRD, to the payment of all accrued interest payable
to the Lenders hereunder, pro rata as set forth below;
FOURTH, to the payment of the outstanding principal
amount of the Loans, pro rata as set forth below;
FIFTH, to all other obligations which shall have become
due and payable under the Credit Documents and not repaid
pursuant to clauses "FIRST" through "FOURTH" above; and
SIXTH, to the payment of the surplus, if any, to
whoever may be lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be
applied in the numerical order provided until exhausted prior to
application to the next succeeding category and (b) each of the
Lenders shall receive an amount equal to its pro rata share
(based on the proportion that the then outstanding Loans held by
such Lender bears to the aggregate then outstanding Loans) of
amounts available to be applied.
SECTION 10
AGENCY PROVISIONS
10.1 Appointment.
Each Lender hereby designates and appoints Bank of America,
N.A. as agent of such Lender to act as specified herein and the
other Credit Documents, and each such Lender hereby authorizes
the Administrative Agent, as the agent for such Lender, to take
such action on its behalf under the provisions of this Credit
Agreement and the other Credit Documents and to exercise such
powers and perform such duties as are expressly delegated by the
terms hereof and of the other Credit Documents, together with
such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere herein
and in the other Credit Documents, the Administrative Agent shall
not have any duties or responsibilities, except those expressly
set forth herein and therein, or any fiduciary relationship with
any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be
read into this Credit Agreement or any of the other Credit
Documents, or shall otherwise exist against the Administrative
Agent. The provisions of this Section are solely for the benefit
of the Administrative Agent and the Lenders and the Borrower
shall not have any rights as a third party beneficiary of the
provisions hereof. In performing its functions and duties under
this Credit Agreement and the other Credit Documents, the
Administrative Agent shall act solely as agent of the Lenders and
does not assume and shall not be deemed to have assumed any
obligation or relationship of agency or trust with or for the
Borrower. Any agent named herein (other than the Administrative
Agent) shall have no duties or obligations whatsoever under this
Credit Agreement or the other Credit Documents.
10.2 Delegation of Duties.
The Administrative Agent may execute any of its duties
hereunder or under the other Credit Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence
or misconduct of any agents or attorneys-in-fact selected by it
with reasonable care.
10.3 Exculpatory Provisions.
Neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates
shall be liable to any Lender for any action lawfully taken or
omitted to be taken by it or such Person under or in connection
herewith or in connection with any of the other Credit Documents
(except for its or such Person's own gross negligence or willful
misconduct), or responsible in any manner to any of the Lenders
for any recitals, statements, representations or warranties made
by the Borrower contained herein or in any of the other Credit
Documents or in any certificate, report, statement or other
document referred to or provided for in, or received by the
Administrative Agent under or in connection herewith or in
connection with the other Credit Documents, or enforceability or
sufficiency therefor of any of the other Credit Documents, or for
any failure of the Borrower to perform its obligations hereunder
or thereunder. The Administrative Agent shall not be responsible
to any Lender for the effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Credit
Agreement, or any of the other Credit Documents or for any
representations, warranties, recitals or statements made herein
or therein or made by the Borrower in any written or oral
statement or in any financial or other statements, instruments,
reports, certificates or any other documents in connection
herewith or therewith furnished or made by the Administrative
Agent to the Lenders or by or on behalf of the Borrower to the
Administrative Agent or any Lender or be required to ascertain or
inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained herein
or therein or as to the use of the proceeds of the Loans or of
the existence or possible existence of any Default or Event of
Default or to inspect the properties, books or records of the
Borrower. The Administrative Agent is not a trustee for the
Lenders and owes no fiduciary duty to the Lenders.
10.4 Reliance on Communications.
The Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing,
resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it
in good faith to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation,
counsel to the Borrower, independent accountants and other
experts selected by the Administrative Agent with reasonable
care). The Administrative Agent may deem and treat the Lenders
as the owner of its interests hereunder for all purposes unless a
written notice of assignment, negotiation or transfer thereof
shall have been filed with the Administrative Agent in accordance
with Section 11.3(b). The Administrative Agent shall be fully
justified in failing or refusing to take any action under this
Credit Agreement or under any of the other Credit Documents
unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder or under any of
the other Credit Documents in accordance with a request of the
Required Lenders (or to the extent specifically provided in
Section 11.6, all the Lenders) and such request and any action
taken or failure to act pursuant thereto shall be binding upon
all the Lenders (including their successors and assigns).
10.5 Notice of Default.
The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received
notice from a Lender or the Borrower referring to the Credit
Document, describing such Default or Event of Default and stating
that such notice is a "notice of default." In the event that the
Administrative Agent receives such a notice, the Administrative
Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by
the Required Lenders.
10.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates has made any
representations or warranties to it and that no act by the
Administrative Agent or any affiliate thereof hereinafter taken,
including any review of the affairs of the Borrower, shall be
deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent that it has, independently and without
reliance upon the Administrative Agent or any other Lender, and
based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the
business, assets, operations, property, financial and other
conditions, prospects and creditworthiness of the Borrower and
made its own decision to make its Extensions of Credit hereunder
and enter into this Credit Agreement. Each Lender also
represents that it will, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Credit
Agreement, and to make such investigation as it deems necessary
to inform itself as to the business, assets, operations,
property, financial and other conditions, prospects and
creditworthiness of the Borrower. Except for notices, reports
and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative
Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the
business, operations, assets, property, financial or other
conditions, prospects or creditworthiness of the Borrower which
may come into the possession of the Administrative Agent or any
of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates.
10.7 Indemnification.
Each Lender agrees to indemnify the Administrative Agent in
its capacity as such (to the extent not reimbursed by the
Borrower and without limiting the obligation of the Borrower to
do so), ratably according to its Commitment Percentage, from and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time
(including without limitation at any time following the payment
in full of the Borrower Obligations) be imposed on, incurred by
or asserted against the Administrative Agent in its capacity as
such in any way relating to or arising out of this Credit
Agreement or the other Credit Documents or any documents
contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent under or in connection
with any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Administrative Agent. If
any indemnity furnished to the Administrative Agent for any
purpose shall, in the opinion of the Administrative Agent, be
insufficient or become impaired, the Administrative Agent may
call for additional indemnity and cease, or not commence, to do
the acts indemnified against until such additional indemnity is
furnished. The agreements in this Section 10.7 shall survive the
payment of the Borrower Obligations and all other amounts payable
hereunder and under the other Credit Documents and the
termination of the Commitments.
10.8 Administrative Agent in Its Individual Capacity.
The Administrative Agent and its Affiliates may make loans
to, accept deposits from and generally engage in any kind of
business with the Borrower as though the Administrative Agent
were not Administrative Agent hereunder. With respect to the
Loans made and all Borrower Obligations owing to it, the
Administrative Agent shall have the same rights and powers under
this Credit Agreement as any Lender and may exercise the same as
though it were not the Administrative Agent, and the terms
"Lender" and "Lenders" shall include the Administrative Agent in
its individual capacity.
10.9 Successor Agent.
The Administrative Agent may, at any time, resign upon 20
days written notice to the Lenders. Upon any such resignation,
the Required Lenders shall have the right to appoint a successor
Administrative Agent, which successor shall be reasonably
acceptable to the Borrower; provided that the Borrower shall have
no right to approve such successor during the existence and
continuation of a Default or Event of Default. If no successor
Administrative Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days
after the notice of resignation, then the retiring
Administrative Agent shall select a successor Administrative
Agent; provided such successor is an Eligible Assignee (or if no
Eligible Assignee shall have been so appointed by the retiring
Administrative Agent and shall have accepted such appointment,
then the Lenders shall perform all obligations of the retiring
Administrative Agent hereunder until such time, if any, as a
successor Administrative Agent shall have been appointed and
shall have accepted such appointment as provided for above).
Upon the acceptance of any appointment as an Administrative
Agent hereunder by a successor, 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 as an
Administrative Agent, as appropriate, under this Credit Agreement
and the other Credit Documents and the provisions of this Section
10 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was an Administrative Agent under this
Credit Agreement.
SECTION 11.
MISCELLANEOUS
11.1 Notices.
Except as otherwise expressly provided herein, all notices
and other communications shall have been duly given and shall be
effective (a) when delivered, (b) when transmitted via telecopy
(or other facsimile device), (c) the Business Day following the
day on which the same has been delivered to a reputable national
overnight air courier service, or (d) the third Business Day
following the day on which the same is sent by certified or
registered mail, postage prepaid, in each case to the respective
parties at the address or telecopy numbers set forth on Schedule
11.1, or at such other address as such party may specify by
written notice to the other parties hereto.
11.2 Right of Set-Off.
In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuation of
an Event of Default and the commencement of remedies described in
Section 9.2, each Lender is authorized at any time and from time
to time, without presentment, demand, protest or other notice of
any kind (all of which rights being hereby expressly waived), to
set-off and to appropriate and apply any and all deposits
(general or special) and any other indebtedness at any time held
or owing by such Lender (including, without limitation branches,
agencies or Affiliates of such Lender wherever located) to or for
the credit or the account of the Borrower against obligations and
liabilities of the Borrower to the Lenders hereunder, under the
Notes or the other Credit Documents, irrespective of whether the
Administrative Agent or the Lenders shall have made any demand
hereunder and although such obligations, liabilities or claims,
or any of them, may be contingent or unmatured, and any such set-
off shall be deemed to have been made immediately upon the
occurrence of an Event of Default even though such charge is made
or entered on the books of such Lender subsequent thereto. The
Borrower hereby agrees that any Person purchasing a participation
in the Loans and Commitments hereunder pursuant to Section
11.3(c) may exercise all rights of set-off with respect to its
participation interest as fully as if such Person were a Lender
hereunder.
11.3 Benefit of Agreement.
(a) GENERALLY. This Credit Agreement shall be binding
upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto;
provided that the Borrower may not assign and transfer any
of its interests without the prior written consent of the
Lenders; and provided further that the rights of each Lender
to transfer, assign or grant participations in its rights
and/or obligations hereunder shall be limited as set forth
below in this Section 11.3.
(b) ASSIGNMENTS. Each Lender may assign to one or
more Eligible Assignees all or a portion of its rights and
obligations under this Credit Agreement (including, without
limitation, all or a portion of its Loans, its Notes, and
its Commitments); provided, however, that:
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to
another Lender or an assignment of all of a Lender's
rights and obligations under this Credit Agreement, any
such partial assignment shall be in an amount at least
equal to $5,000,000 (or, if less, the remaining amount
of the Commitment being assigned by such Lender) and an
integral multiple of $1,000,000 in excess thereof;
(iii) each such assignment by a Lender shall
be of a constant, and not varying, percentage of all of
its rights and obligations under this Credit Agreement
and the Notes; and
(iv) the parties to such assignment shall execute
and deliver to the Administrative Agent for its
acceptance an Assignment Agreement in substantially the
form of Exhibit 11.3(b), together with a processing fee
from the assignor of $3,500.
Upon execution, delivery, and acceptance of such Assignment
Agreement, the assignee thereunder shall be a party hereto
and, to the extent of such assignment, have the obligations,
rights, and benefits of a Lender hereunder and the assigning
Lender shall, to the extent of such assignment, relinquish
its rights and be released from its obligations under this
Credit Agreement. Upon the consummation of any assignment
pursuant to this Section 11.3(b), the assignor, the
Administrative Agent and the Borrower shall make appropriate
arrangements so that, if required, new Notes are issued to
the assignor and the assignee. If the assignee is not
incorporated under the laws of the United States of America
or a state thereof; it shall deliver to the Borrower and the
Administrative Agent certification as to exemption from
deduction or withholding of taxes in accordance with
Section 4.4.
By executing and delivering an assignment agreement in
accordance with this Section 11.3(b), the assigning Lender
thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties
hereto as follows: (A) such assigning Lender warrants that
it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim created
by such assigning Lender and the assignee warrants that it
is an Eligible Assignee; (B) except as set forth in clause
(A) above, 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 Credit Agreement, any of the other
Credit Documents or any other instrument or document
furnished pursuant hereto or thereto, or the execution,
legality, validity, enforceability, genuineness, sufficiency
or value of this Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished
pursuant hereto or thereto or the financial condition of the
Borrower or the performance or observance by the Borrower of
any of its obligations under this Credit Agreement, any of
the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto; (C) such
assignee represents and warrants that it is legally
authorized to enter into such assignment agreement; (D) such
assignee confirms that it has received a copy of this Credit
Agreement, the other Credit Documents and such other
documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such
assignment agreement; (E) such assignee will independently
and without reliance upon the Administrative 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 Credit Agreement and
the other Credit Documents; (F) such assignee appoints and
authorizes the Administrative Agent to take such action on
its behalf and to exercise such powers under this Credit
Agreement or any other Credit Document as are delegated to
the Administrative Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental
thereto; and (G) such assignee agrees that it will perform
in accordance with their terms all the obligations which by
the terms of this Credit Agreement and the other Credit
Documents are required to be performed by it as a Lender.
(c) REGISTER. The Administrative Agent shall maintain
a copy of each Assignment Agreement 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 Loans 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 Credit 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) ACCEPTANCE. Upon its receipt of an Assignment
Agreement executed by the parties thereto, together with any
Note subject to such assignment and payment of the
processing fee, the Administrative Agent shall, if such
Assignment Agreement has been completed and is in
substantially the form of Exhibit 11.3(b), (i) accept such
Assignment Agreement, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof
to the parties thereto.
(e) PARTICIPATIONS. Each Lender may sell
participations to one or more Persons in all or a portion of
its rights, obligations or rights and obligations under this
Credit Agreement (including all or a portion of its
Commitment, its Notes and its Loans); provided, however,
that (i) such Lender's obligations under this Credit
Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) the participant
shall be entitled to the benefit of the yield protection
provisions contained in Sections 4.1 through 4.4, inclusive,
and the right of set-off contained in Section 11.2, and (iv)
the Borrower shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and
obligations under this Credit Agreement, and such Lender
shall retain the sole right to enforce the obligations of
the Borrower relating to its Loans and its Notes and to
approve any amendment, modification, or waiver of any
provision of this Credit Agreement (other than amendments,
modifications, or waivers decreasing the amount of principal
of or the rate at which interest is payable on such Loans or
Notes, extending any scheduled principal payment date or
date fixed for the payment of interest on such Loans or
Notes, or extending its Commitment).
(f) NONRESTRICTED ASSIGNMENTS. Notwithstanding any
other provision set forth in this Credit Agreement, any
Lender may at any time assign and pledge all or any portion
of its Loans and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any
Operating Circular issued by such Federal Reserve Bank. No
such assignment shall release the assigning Lender from its
obligations hereunder.
(g) INFORMATION. Any Lender may furnish any
information concerning the Borrower in the possession of
such Lender from time to time to assignees and participants
(including prospective assignees and participants).
11.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Administrative Agent
or any Lender in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of
dealing between the Borrower and the Administrative Agent or any
Lender shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or
under any other Credit Document preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder. The rights and remedies
provided herein are cumulative and not exclusive of any rights or
remedies which the Administrative Agent or any Lender would
otherwise have. No notice to or demand on the Borrower in any
case shall entitle the Borrower to any other or further notice or
demand in similar or other circumstances or constitute a waiver
of the rights of the Administrative Agent or the Lenders to any
other or further action in any circumstances without notice or
demand.
11.5 Payment of Expenses, etc.
The Borrower agrees to: (i) pay all reasonable out-of-
pocket costs and expenses of the Administrative Agent and Banc of
America Securities LLC ("BAS") in connection with (A) the
negotiation, preparation, execution and delivery and
administration of this Credit Agreement and the other Credit
Documents and the documents and instruments referred to therein
(including, without limitation, the reasonable fees and expenses
of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC, special counsel to the Administrative
Agent) and (B) any amendment, waiver or consent relating hereto
and thereto including, but not limited to, any such amendments,
waivers or consents resulting from or related to any work-out,
renegotiation or restructure relating to the performance by the
Borrower under this Credit Agreement, (ii) pay all reasonable out-
of-pocket costs and expenses of the Administrative Agent and the
Lenders in connection with (A) enforcement of the Credit
Documents and the documents and instruments referred to therein
(including, without limitation, in connection with any such
enforcement, the reasonable fees and disbursements of counsel for
the Administrative Agent and each of the Lenders (including the
allocated cost of internal counsel)) and (B) any bankruptcy or
insolvency proceeding of the Borrower and (iii) indemnify the
Administrative Agent, BAS and each Lender, its officers,
directors, employees, representatives and agents from and hold
each of them harmless against any and all losses, liabilities,
claims, damages or expenses incurred by any of them as a result
of, or arising out of, or in any way related to, or by reason of,
any investigation, litigation or other proceeding (whether or not
the Administrative Agent, BAS or any Lender is a party thereto)
related to the entering into and/or performance of any Credit
Document or the use of proceeds of any Loans (including other
extensions of credit) hereunder or the consummation of any other
transactions contemplated in any Credit Document, including,
without limitation, the reasonable fees and disbursements of
counsel (including the allocated cost of internal counsel)
incurred in connection with any such investigation, litigation or
other proceeding (but excluding any such losses, liabilities,
claims, damages or expenses to the extent incurred by reason of
gross negligence or willful misconduct on the part of the Person
to be indemnified).
11.6 Amendments, Waivers and Consents.
Neither this Credit Agreement, nor any other Credit Document
nor any of the terms hereof or thereof may be amended, changed,
waived, discharged or terminated unless such amendment, change,
waiver, discharge or termination is in writing and signed by the
Required Lenders and the Borrower; provided that no such
amendment, change, waiver, discharge or termination shall without
the consent of each Lender affected thereby:
(a) extend the Maturity Date, or postpone or extend
the time for any payment or prepayment of principal;
(b) reduce the rate or extend the time of payment of
interest (other than as a result of waiving the
applicability of any post-default increase in interest
rates) thereon or fees or other amounts payable hereunder;
(c) reduce or waive the principal amount of any Loan;
(d) increase or extend the Commitment of a Lender (it
being understood and agreed that a waiver of any Default or
Event of Default or a waiver of any mandatory reduction in
the Commitments shall not constitute a change in the terms
of any Commitment of any Lender);
(e) release the Borrower from its obligations under
the Credit Documents;
(f) amend, modify or waive any provision of this
Section 11.6 or Section 3.6, 3.8, 9.1(a), 11.2, 11.3 or
11.5.
(g) reduce any percentage specified in, or otherwise
modify, the definition of Required Lenders; or
(h) consent to the assignment or transfer by the
Borrower of any of its rights and obligations under (or in
respect of) the Credit Documents.
No provision of Section 10 may be amended or modified without the
consent of the Administrative Agent.
Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (x) each
Lender is entitled to vote as such Lender sees fit on any
reorganization plan that affects the Loans, and each Lender
acknowledges that the provisions of Section 1126(c) of the
Bankruptcy Code supersedes the unanimous consent provisions set
forth herein and (y) the Required Lenders may consent to allow
the Borrower to use cash collateral in the context of a
bankruptcy or insolvency proceeding.
11.7 Counterparts/Telecopy.
This Credit Agreement may be executed in any number of
counterparts, each of which where so executed and delivered shall
be an original, but all of which shall constitute one and the
same instrument. Delivery of executed counterparts by telecopy
shall be as effective as an original and shall constitute a
representation that an original will be delivered.
11.8 Headings.
The headings of the sections and subsections hereof are
provided for convenience only and shall not in any way affect the
meaning or construction of any provision of this Credit
Agreement.
11.9 Defaulting Lender.
Each Lender understands and agrees that if such Lender is a
Defaulting Lender then it shall not be entitled to vote on any
matter requiring the consent of the Required Lenders or to object
to any matter requiring the consent of all the Lenders; provided,
however, that all other benefits and obligations under the Loan
Documents shall apply to such Defaulting Lender.
11.10 Survival of Indemnification and Representations
and Warranties.
All indemnities set forth herein and all representations and
warranties made herein shall survive the execution and delivery
of this Credit Agreement, the making of the Loans, and the
repayment of the Loans and other obligations and the termination
of the Commitments hereunder.
11.11 Governing Law; Venue.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT
DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
(b) Any legal action or proceeding with respect to
this Credit Agreement or any other Credit Document may be
brought in the courts of the State of New York or of the
United States for the Southern District of New York, and, by
execution and delivery of this Credit Agreement, the
Borrower hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the
jurisdiction of such courts. The Borrower further
irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified
mail, postage prepaid, to it at the address for notices
pursuant to Section 11.1, such service to become effective
10 days after such mailing. Nothing herein shall affect the
right of a Lender to serve process in any other manner
permitted by law or to commence legal proceedings or to
otherwise proceed against the Borrower in any other
jurisdiction. The Borrower agrees that a final judgment in
any action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law; provided that nothing
in this Section 11.11(b) is intended to impair the
Borrower's right under applicable law to appeal or seek a
stay of any judgment.
(c) The Borrower hereby irrevocably waives any
objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Credit Agreement
or any other Credit Document in the courts referred to in
subsection (a) hereof and hereby further irrevocably waives
and agrees not to plead or claim in any such court that any
such action or proceeding brought in any such court has been
brought in an inconvenient forum.
11.12 Waiver of Jury Trial.
EACH OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
11.13 Severability.
If any provision of any of the Credit Documents is
determined to be illegal, invalid or unenforceable, such
provision shall be fully severable and the remaining provisions
shall remain in full force and effect and shall be construed
without giving effect to the illegal, invalid or unenforceable
provisions.
11.14 Further Assurances.
The Borrower agrees, upon the request of the Administrative
Agent, to promptly take such actions, as reasonably requested, as
are necessary to carry out the intent of this Credit Agreement
and the other Credit Documents.
11.15 Entirety.
This Credit Agreement together with the other Credit
Documents represent the entire agreement of the parties hereto
and thereto, and supersede all prior agreements and
understandings, oral or written, if any, including any commitment
letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
11.16 Binding Effect; Continuing Agreement.
(a) This Credit Agreement shall become effective at
such time when all of the conditions set forth in Section
5.1 have been satisfied or waived by the Lenders and it
shall have been executed by the Borrower, the Administrative
Agent and the Lenders, and thereafter this Credit Agreement
shall be binding upon and inure to the benefit of the
Borrower, the Administrative Agent and each Lender and their
respective successors and assigns.
(b) This Credit Agreement shall be a continuing
agreement and shall remain in full force and effect until
all Loans, interest, fees and other Borrower Obligations
have been paid in full and all Commitments have been
terminated. Upon termination, the Borrower shall have no
further obligations (other than the indemnification
provisions that survive) under the Credit Documents;
provided that should any payment, in whole or in part, of
the Borrower Obligations be rescinded or otherwise required
to be restored or returned by the Administrative Agent or
any Lender, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, then the Credit
Documents shall automatically be reinstated and all amounts
required to be restored or returned and all costs and
expenses incurred by the Administrative Agent or any Lender
in connection therewith shall be deemed included as part of
the Borrower Obligations.
Each of the parties hereto has caused a counterpart of this
Credit Agreement to be duly executed and delivered as of the date
first above written.
BORROWER: ATMOS ENERGY CORPORATION,
A Texas and Virginia corporation
By: ___________________________________
Name:___________________________________
Title:__________________________________
LENDERS: BANK OF AMERICA, N.A.
individually in its capacity as a
Lender and in its capacity as
Administrative Agent
By:___________________________________
Name:_________________________________
Title:________________________________
FLEET NATIONAL BANK
By:___________________________________
Name:_________________________________
Title:________________________________
THE FUJI BANK, LIMITED
By:___________________________________
Name:_________________________________
Title:________________________________
KBC BANK N.V.
By:___________________________________
Name:_________________________________
Title:________________________________
FIRST UNION NATIONAL BANK
By:___________________________________
Name:_________________________________
Title:________________________________
BANK ONE, NA
By:___________________________________
Name:_________________________________
Title:________________________________
SOCIETE GENERALE NEW YORK BRANCH
By:___________________________________
Name:_________________________________
Title:________________________________
Schedule 1.1
Commitment Percentages
Tranche A Tranche B
Term Loan Term Loan Total Commitment
Lenders Commitment Commitment Commitments Percentage
Bank of America, N.A. $22,259,504.89 $85,699,093.83 $107,958,598.72 22.2595048907 %
Bank One, NA $21,434,762.62 $82,523,836.10 $103,958,598.72 21.4347626227 %
Societe Generale New
York Branch $18,089,171.98 $69,643,312.10 $87,732,484.08 18.0891719753 %
Fleet National Bank $12,738,853.50 $49,044,585.99 $61,783,439.49 12.7388535031 %
First Union National
Bank $12,738,853.50 $49,044,585.99 $61,783,439.49 12.7388535031 %
The Fuji Bank, Limited $ 6,369,426.75 $24,522,293.00 $30,891,719.75 6.3694267526 %
KBC Bank N.V. $ 6,369,426.75 $24,522,293.00 $30,891,719.75 6.3694267526 %
TOTAL $100,000,000.00 $385,000,000.00 $485,000,000.00 100%
Schedule 6.20
Secured Indebtedness
Outstanding
As of
06/30/00
First Mortgage Bonds:
Series J, 9.4% due 2021 (issued under the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇) $17,000,000
Series P, 10.43% due 2017 (issued under the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇) 21,250,000
Series Q, 9.75% due 2020 (issued under the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇) 20,000,000
Series R, 11.32% due 2004 (issued under the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇) 10,720,000
Series T, 9.32% due 2021 (issued under the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇) 18,000,000
Series U, 8.77% due 2022 (issued under the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇) 20,000,000
Series V, 7.5% due 2007 (issued under the 1959 Indenture) 10,000,000
Senior secured storage term notes, 7.45% due in installments
through 2007 6,963,648
Rental property fixed rate term note, 7.9% due in installments
through 2013 1,702,312
------------
Total Secured Indebtedness $125,635,960
============
Schedule 6.21
Subsidiaries
Atmos Energy Marketing, LLC
Atmos Energy Services, Inc.
Enertrust, Inc.
Energas Energy Services Trust
Enermart Energy Services Trust
Egasco, LLC
Trans Louisiana Energy Services, Inc.
United Cities Energy Services, Inc.
Greeley Energy Services, Inc.
WKG Energy Services, Inc.
Trans Louisiana Industrial Gas Company, Inc.
Atmos Leasing, Inc.
Atmos Propane, Inc.
United Cities Propane Gas, LLC
United Cities Propane Gas, Inc.
Atmos Storage, Inc.
UCG Storage, Inc.
WKG Storage, Inc.
Trans Louisiana Gas Storage, Inc.
Atmos Exploration & Production, Inc.
Atmos Non-Regulated Shared Services, Inc.
* Each of these subsidiaries is 100% owned by its parent.
** No Subsidiary of the Borrower currently qualifies as a
Material Subsidiary as that term is defined in the Credit
Agreement.
Schedule 11.1
Notices
Atmos Energy Corporation
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Atmos Energy Corporation
1800 Three Lincoln Centre
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Atmos Energy Corporation
700 Three Lincoln Centre
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Administrative Agent
▇▇▇▇ De ▇▇ ▇▇▇▇▇
Bank of America, N.A.
Bank of America Plaza
▇▇▇ ▇▇▇▇ ▇▇.
Mailcode: TX1-492-14-12
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Lenders:
Bank of America, N.A.
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Bank of America, N.A.
Bank of America Corporate Center
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Fleet National Bank
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
The Fuji Bank, Limited
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
The Fuji Bank Limited
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
KBC Bank N.V.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
KBC Bank N.V.
Atlanta Representative ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
First Union National Bank
Chanue Bynes
First Union National Bank
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 704-383-7999
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇
First Union National Bank
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Bank One, NA
▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇
Bank One, NA
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Societe Generale New York Branch
▇▇▇▇▇ ▇▇▇▇
Societe Generale New York Branch
1221 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Exhibit 2.2
FORM OF NOTICE OF BORROWING
TO: BANK OF AMERICA, N.A., as Administrative Agent
Bank of America Plaza
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
RE: Term Credit Agreement dated as of August ___, 2000
among Atmos Energy Corporation (the "Borrower"), the
Lenders named therein and Bank of America, N.A., as
Administrative Agent for the Lenders (as the same may
be amended, modified, extended or restated from time to
time, the "Credit Agreement")
DATE: ____________, 200__
1. This Notice of Borrowing is made pursuant to the terms of
the Credit Agreement. All capitalized terms used herein
unless otherwise defined shall have the meanings set forth
in the Credit Agreement.
2. Please be advised that the Borrower is requesting [a Tranche
A Term Loan][the Tranche B Term Loan] in the amount of
$__________ to be funded on ____________, 200__ at the
interest rate option set forth in paragraph 3 below.
3. If the requested Loan is a Tranche A Term Loan, subsequent
to the funding of the requested Loan, (a) the Lenders will
have funded a total of ____ Tranche A Term Loans to the
Borrower, which is less than or equal to six and (b) the sum
of the amount of Tranche A Term Loans outstanding will be
$________________, which is less than or equal to the
Tranche A Term Loan Commitment.
4. If the requested Loan is the Tranche B Term Loan, (a) the
Lenders have not previously funded the Tranche B Term Loan
and (b) the amount of such Loan requested is less than or
equal to the Tranche B Term Loan Commitment.
5. The interest rate option applicable to the requested Loan
shall be:
a. ________ the Base Rate
b. ________ the Adjusted Eurodollar Rate for an Interest
Period of:
________ one month
________ two months
________ three months
________ six months
6. As of the date on which funds are to be advanced, all
representations and warranties contained in the Credit
Agreement and in the other Credit Documents will be true and
correct in all material respects.
7. As of the date on which funds are to be advanced, no Default
or Event of Default will exist or be continuing or will be
caused by the making of the Loan pursuant to this Notice of
Borrowing.
8. The Debt Rating of the Borrower is _____ from S&P, which is
higher than or equal to BBB, and ____ from ▇▇▇▇▇'▇, which is
higher than or equal to Baa2.
9. If the requested Loan is the Tranche B Term Loan, the
Acquisition has been consummated on terms substantially
similar in all material respects to those set forth in the
Purchase and Sale Agreement as in effect on April 13, 2000,
other than any changes that have been deemed by the
Administrative Agent, on or before the date hereof, not to
materially adversely affect the rights of the Borrower and
its Subsidiaries or the rights of the Lenders under the
Credit Agreement.
ATMOS ENERGY CORPORATION,
a Texas and Virginia corporation
By: _____________________________
Name:_____________________________
Title:____________________________
Exhibit 2.4
FORM OF NOTICE OF CONTINUATION/CONVERSION
TO: BANK OF AMERICA, N.A., as Administrative Agent
Bank of America Plaza
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
RE: Term Credit Agreement dated as of August ___, 2000
among Atmos Energy Corporation (the "Borrower"), the
Lenders named therein and Bank of America, N.A., as
Administrative Agent for the Lenders (as the same may
be amended, modified, extended or restated from time to
time, the "Credit Agreement")
DATE: ___________, 200__
-----------------------------------------------------------------
1. This Notice of Continuation/Conversion is made pursuant to
the terms of the Credit Agreement. All capitalized terms
used herein unless otherwise defined shall have the meanings
set forth in the Credit Agreement.
2. Please be advised that the Borrower is requesting that a
portion of the current outstanding Loans in the amount of
$__________ currently accruing interest at ________ be
continued or converted as of ___________, 200__ at the
interest rate option set forth in paragraph 3 below.
3. The interest rate option applicable to the continuation or
conversion of all or part of the existing Loans (as set
forth above) shall be:
a. _______ the Base Rate
b. _______ the Adjusted Eurodollar Rate for an Interest
Period of:
________ one month
________ two months
________ three months
________ six months
ATMOS ENERGY CORPORATION,
a Texas and Virginia corporation
By: _____________________________
Name:_____________________________
Title:____________________________
Exhibit 2.7 (a)
FORM OF
TRANCHE A TERM LOAN NOTE
__________, 200__
FOR VALUE RECEIVED, ATMOS ENERGY CORPORATION, a Texas and
Virginia corporation (the "Borrower"), hereby promises to pay to
the order of ____________________ (the "Lender"), at the office
of Bank of America, N.A. (the "Administrative Agent") as set
forth in that certain Term Credit Agreement dated as of August
___, 2000 among the Borrower, the Lenders named therein
(including the Lender) and the Administrative Agent (as the same
may be amended, modified, extended or restated from time to time,
the "Credit Agreement") (or at such other place or places as the
holder of this Tranche A Loan Note may designate), the aggregate
amount of all Tranche A Term Loans made by the Lender under the
Credit Agreement (and not otherwise repaid), in lawful money and
in immediately available funds, on the dates and in the principal
amounts provided in the Credit Agreement, and to pay interest on
the unpaid principal amount of each Tranche A Term Loan made by
the Lender, at such office, in like money and funds, for the
period commencing on the date of each Tranche A Term Loan until
each Tranche A Term Loan shall be paid in full, at the rates per
annum and on the dates provided in the Credit Agreement.
This Note is one of the Tranche A Term Loan Notes referred
to in the Credit Agreement and evidences Tranche A Term Loans
made by the Lender thereunder. The Lender shall be entitled to
the benefits of the Credit Agreement. Capitalized terms used in
this Tranche A Term Loan Note have the respective meanings
assigned to them in the Credit Agreement and the terms and
conditions of the Credit Agreement are expressly incorporated
herein and made a part hereof.
The Credit Agreement provides for the acceleration of the
maturity of the Tranche A Term Loans evidenced by this Tranche A
Term Loan Note upon the occurrence of certain events (and for
payment of collection costs in connection therewith) and for
prepayments of Tranche A Term Loans upon the terms and conditions
specified therein. In the event this Tranche A Term Loan Note is
not paid when due at any stated or accelerated maturity, the
Borrower agrees to pay, in addition to the principal and
interest, all costs of collection, including reasonable attorney
fees.
Except as permitted by Section 11.3(b) of the Credit
Agreement, this Tranche A Term Loan Note may not be assigned by
the Lender to any other Person.
THIS TRANCHE A TERM LOAN NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrower has caused this Tranche A
Term Loan Note to be executed as of the date first above written.
ATMOS ENERGY CORPORATION,
a Texas and Virginia corporation
By: _____________________________
Name:_____________________________
Title:____________________________
Exhibit 2.7 (b)
FORM OF
TRANCHE B TERM LOAN NOTE
___________, 200__
FOR VALUE RECEIVED, ATMOS ENERGY CORPORATION, a Texas and
Virginia corporation (the "Borrower"), hereby promises to pay to
the order of ____________________ (the "Lender"), at the office
of Bank of America, N.A. (the "Administrative Agent") as set
forth in that certain Term Credit Agreement dated as of August
___, 2000 among the Borrower, the Lenders named therein
(including the Lender) and the Administrative Agent (as the same
may be amended, modified, extended or restated from time to time,
the "Credit Agreement") (or at such other place or places as the
holder of this Tranche B Loan Note may designate), the aggregate
amount of all Tranche B Term Loans made by the Lender under the
Credit Agreement (and not otherwise repaid), in lawful money and
in immediately available funds, on the dates and in the principal
amounts provided in the Credit Agreement, and to pay interest on
the unpaid principal amount of each Tranche B Term Loan made by
the Lender, at such office, in like money and funds, for the
period commencing on the date of each Tranche B Term Loan until
each Tranche B Term Loan shall be paid in full, at the rates per
annum and on the dates provided in the Credit Agreement.
This Note is one of the Tranche B Term Loan Notes referred
to in the Credit Agreement and evidences Tranche B Term Loans
made by the Lender thereunder. The Lender shall be entitled to
the benefits of the Credit Agreement. Capitalized terms used in
this Tranche B Term Loan Note have the respective meanings
assigned to them in the Credit Agreement and the terms and
conditions of the Credit Agreement are expressly incorporated
herein and made a part hereof.
The Credit Agreement provides for the acceleration of the
maturity of the Tranche B Term Loans evidenced by this Tranche B
Term Loan Note upon the occurrence of certain events (and for
payment of collection costs in connection therewith) and for
prepayments of Tranche B Term Loans upon the terms and conditions
specified therein. In the event this Tranche B Term Loan Note is
not paid when due at any stated or accelerated maturity, the
Borrower agrees to pay, in addition to the principal and
interest, all costs of collection, including reasonable attorney
fees.
Except as permitted by Section 11.3(b) of the Credit
Agreement, this Tranche B Term Loan Note may not be assigned by
the Lender to any other Person.
THIS TRANCHE B TERM LOAN NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrower has caused this Tranche B
Term Loan Note to be executed as of the date first above written.
ATMOS ENERGY CORPORATION,
a Texas and Virginia corporation
By: _____________________________
Name:_____________________________
Title:____________________________
Exhibit 7.1 (c)
FORM OF OFFICER'S CERTIFICATE
TO: BANK OF AMERICA, N.A., as Administrative Agent
Bank of America Plaza
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
RE: Term Credit Agreement dated as of August ___, 2000
among Atmos Energy Corporation (the "Borrower"), the
Lenders named therein and Bank of America, N.A., as
Administrative Agent for the Lenders (as the same may
be amended, modified, extended or restated from time to
time, the "Credit Agreement")
DATE: _____________, 200__
-----------------------------------------------------------------
Pursuant to the terms of the Credit Agreement, I,
__________________________, _____ ______________ of the Borrower,
hereby certify on behalf of the Borrower that, as of the
quarter/year ending ______________, 200__, the statements below
are accurate and complete in all material respects (all
capitalized terms used herein unless otherwise defined shall have
the meanings set forth in the Credit Agreement):
a. Attached hereto as Schedule I are calculations
demonstrating compliance by the Borrower with the financial
covenant set forth in Section 7.2 of the Credit Agreement,
as of the end of the fiscal period cited above.
b. No Default or Event of Default exists under the
Credit Agreement, except as indicated on a separate page
attached hereto, together with an explanation of the action
taken or proposed to be taken by the Borrower with respect
thereto.
c. The quarterly/annual financial statements for the
fiscal period cited above which accompany this certificate
are true and correct and have been prepared in accordance
with GAAP (in the case of any quarterly financial
statements, subject to changes resulting from audit and
normal year-end audit adjustments).
ATMOS ENERGY CORPORATION
By: _____________________________
Name:_____________________________
Title:____________________________
Schedule I to Officer's Certificate
Compliance with Section 7.2: Debt to Capitalization Ratio
1. Consolidated Funded Debt $___________
2. Consolidated Capitalization $___________
3. Debt to Capitalization Ratio: (Line 1 / Line 2) ____________
Maximum Allowed: For the fiscal period cited above, Line 3
shall be less than or equal to ___________.
Exhibit 11.3 (b)
FORM OF ASSIGNMENT AGREEMENT
Reference is made to that certain Term Credit Agreement,
dated as of August ____, 2000, among Atmos Energy Corporation
(the "Borrower"), the Lenders party thereto and Bank of America,
N.A., as Administrative Agent for the Lenders (as the same may be
amended, modified, extended or restated from time to time, the
"Credit Agreement"). Capitalized terms used herein shall have
the meanings ascribed thereto in the Credit Agreement.
1. The Assignor hereby sells and assigns to the Assignee,
without recourse and without representation and warranty except
as expressly set forth herein, and the Assignee hereby purchases
and assumes from the Assignor, without recourse and without
representation and warranty except as expressly set forth herein,
the interests set forth below (the "Assigned Interest") in the
Assignor's rights and obligations under the Credit Agreement,
including, without limitation, the interests set forth below in
the Commitment Percentage of the Assignor on the Effective Date
(as defined below) and the Loans owing to the Assignor in
connection with the Assigned Interest which are outstanding on
the Effective Date. The purchase of the Assigned Interest shall
be at par (unless otherwise agreed to by the Assignor and the
Assignee) and periodic payments made with respect to the Assigned
Interest which (a) accrued prior to the Effective Date shall be
remitted to the Assignor and (b) accrue from and after the
Effective Date shall be remitted to the Assignee.
2. The Assignor (a) warrants to the Assignee that it is
the legal and beneficial owner of the Assigned Interest and that
the Assigned Interest is free and clear of any adverse claim
created by the Assignor; (b) 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 Documents or any other document or instrument furnished
pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit
Documents or any document or instrument furnished pursuant
thereto; (c) 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 Documents or any document or
instrument furnished pursuant thereto and (d) if the Assignor is
hereby assigning all of its Commitments, the Assignor attaches
the Notes held by the Assignor and requests that the
Administrative Agent exchange such Notes for new Notes in favor
of the Assignee.
3. The Assignee (a) confirms that it is legally authorized
to enter into this Assignment Agreement; (b) confirms that it has
received a copy of the Credit Agreement, the other Credit
Documents and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision
to enter into this Assignment Agreement; (c) agrees that it will,
independently and without reliance upon the Administrative 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 and the other Credit Documents; (d)
confirms that it is an Eligible Assignee; (e) appoints and
authorizes the Administrative Agent to take such action on its
behalf and to exercise such powers under the Credit Documents as
are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto;
(f) agrees that it will perform in accordance with their terms
all of the obligations which by the terms of the Credit Agreement
and the other Credit Documents are required to be performed by it
as a Lender; and (g) attaches any U.S. Internal Revenue Service
or other forms required under Section 4.4.
4. Following the execution of this Assignment Agreement,
it will be delivered to the Administrative Agent, together with
the transfer fee required pursuant to Section 11.3(b) of the
Credit Agreement, if any, for acceptance and recording by the
Administrative Agent. The effective date for this Assignment
Agreement (the "Effective Date") shall be the date of acceptance
hereof by the Administrative Agent and the Borrower, as
applicable, unless otherwise specified herein.
5. Upon the consent of the Borrower and the Administrative
Agent, as applicable, as of the Effective Date, (a) the Assignee
shall be a party to the Credit Agreement and the other Credit
Documents and, to the extent provided in this Assignment
Agreement, have the rights and obligations of a Lender thereunder
and (b) the Assignor shall, to the extent provided in this
Assignment Agreement, relinquish its rights and be released from
its obligations under the Credit Agreement and the other Credit
Documents.
6. This Assignment Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
7. This Assignment 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.
8. Terms of Assignment
(a) Date of Assignment: ________________
(b) Legal Name of Assignor: ________________
(c) Legal Name of Assignee: ________________
(d) Effective Date of Assignment: ________________
(e) Commitment Percentage assigned: _______________%
(f) Commitment Percentage of
Assignor after Assignment _______________%
(g) Total Tranche A Term Loans
outstanding as of Effective Date $_______________
(h) Principal Amount of Tranche A Term Loans
assigned on Effective Date (the amount set
forth in (g) multiplied by the percentage set
forth in (e)) $________________
(i) Amount of Tranche B Term Loan
outstanding as of Effective Date $________________
(j) Principal Amount of Tranche B Term Loan
assigned on Effective Date (the amount set
forth in (i) multiplied by the percentage set
forth in (e)) $________________
(k) Tranche A Term Loan Commitment $________________
(l) Principal Amount of Tranche A Term Loan
Commitment assigned on the Effective Date
(the amount set forth in (k) multiplied by the
percentage set forth in (e)) $________________
(m) Tranche B Term Loan Commitment $________________
(n) Principal Amount of Tranche B Term Loan
Commitment assigned on the Effective Date
(the amount set forth in (k) multiplied by the
percentage set forth in (e)) $________________
The terms set forth above are hereby agreed
to as of the date first above written:
_______________________, as Assignor
By: ______________________________
Name:______________________________
Title:_____________________________
____________________, as Assignee
By: ______________________________
Name:______________________________
Title:_____________________________
CONSENTED TO (if applicable):
ATMOS ENERGY CORPORATION
By:_____________________________
Name:___________________________
Title:__________________________
BANK OF AMERICA, N.A.,
as Administrative Agent
By:_____________________________
Name:___________________________
Title:__________________________