EXHIBIT 10.12
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$400,000,000
CREDIT AGREEMENT
Dated as of November __, 1997
Among
ELECTRIC LIGHTWAVE, INC.
as Borrower
CITIZENS UTILITIES COMPANY
as Parent Guarantor
and
THE LENDERS NAMED HEREIN
as Lenders
and
CITIBANK, N.A.
as Administrative Agent
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T A B L E O F C O N T E N T S
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Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms........................................ 1
SECTION 1.02. Computation of Time Periods.................................. 14
SECTION 1.03. Accounting Terms............................................. 14
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances............................................... 14
SECTION 2.02. Making the A Advances........................................ 15
SECTION 2.03. The B Advances............................................... 16
SECTION 2.04. Certain Fees................................................. 21
SECTION 2.05. Changes in and Extensions of the
Commitments.......................................... 21
SECTION 2.06. Repayment of A Advances...................................... 23
SECTION 2.07. Interest..................................................... 23
SECTION 2.08. Additional Interest on Eurodollar Rate
Advances............................................. 24
SECTION 2.09. Interest Rate Determinations; Changes in
Rating Systems....................................... 25
SECTION 2.10. Voluntary Conversion and Continuation of
A Advances........................................... 27
SECTION 2.11. Prepayments of A Advances.................................... 28
SECTION 2.12. Increased Costs.............................................. 28
SECTION 2.13. Illegality................................................... 29
SECTION 2.14. Payments and Computations.................................... 30
SECTION 2.15. Taxes........................................................ 32
SECTION 2.16. Sharing of Payments, Etc..................................... 34
SECTION 2.17. Replacement of Lenders....................................... 35
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. All Borrowings............................................... 36
SECTION 3.02. First Borrowing.............................................. 36
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Organization; Powers; Governmental
Approvals............................................ 38
SECTION 4.02. Financial Statements. ...................................... 38
SECTION 4.03. No Material Adverse Change................................... 39
SECTION 4.04. Title to Properties; Possession Under
Leases............................................... 39
(i)
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SECTION 4.05. Ownership of Subsidiaries.................................... 40
SECTION 4.06. Litigation; Compliance with Laws............................. 40
SECTION 4.07. Agreements................................................... 40
SECTION 4.08. Federal Reserve Regulations.................................. 40
SECTION 4.09. Investment Company Act; Public Utility
Holding Company Act.................................. 40
SECTION 4.10. Use of Proceeds.............................................. 41
SECTION 4.11. Tax Returns.................................................. 41
SECTION 4.12. No Material Misstatements.................................... 41
SECTION 4.13. Employee Benefit Plans....................................... 41
SECTION 4.14. Insurance.................................................... 42
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Existence, Businesses and Properties......................... 42
SECTION 5.02. Financial Statements, Reports, etc........................... 43
SECTION 5.03. Litigation and other Notices................................. 44
SECTION 5.04. Maintaining Records.......................................... 45
SECTION 5.05. Use of Proceeds.............................................. 45
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Liens........................................................ 46
SECTION 6.02. Ownership of the Principal Subsidiaries...................... 46
SECTION 6.03. Asset Sales.................................................. 46
SECTION 6.04. Mergers...................................................... 47
SECTION 6.05. Restrictions on Dividends.................................... 47
SECTION 6.06. Transactions with Affiliates................................. 48
SECTION 6.07. Minimum Consolidated Net Worth............................... 48
ARTICLE VII
EVENTS OF DEFAULT
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01. Authorization and Action..................................... 51
SECTION 8.02. Administrative Agent's Reliance, Etc......................... 52
SECTION 8.03. Citibank and Affiliates...................................... 52
SECTION 8.04. Lender Credit Decision....................................... 53
SECTION 8.05. Indemnification.............................................. 53
SECTION 8.06. Successor Administrative Agent............................... 53
(ii)
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc.............................................. 54
SECTION 9.02. Notices, Etc................................................. 55
SECTION 9.03. No Waiver; Remedies.......................................... 55
SECTION 9.04. Costs, Expenses and Indemnification.......................... 56
SECTION 9.05. Right of Set-off............................................. 57
SECTION 9.06. Binding Effect............................................... 58
SECTION 9.07. Assignments, Designations and
Participations....................................... 58
SECTION 9.08. Governing Law; Submission to
Jurisdiction......................................... 63
SECTION 9.09. Severability................................................. 63
SECTION 9.10. Execution in Counterparts.................................... 63
SECTION 9.11. Survival..................................................... 63
SECTION 9.12. Waiver of Jury Trial......................................... 64
SECTION 9.13. Substitution of Lender....................................... 64
SECTION 9.14. Confidentiality.............................................. 65
ARTICLE X
GUARANTEE
SECTION 10.01 The Guarantee................................................ 65
SECTION 10.02 Obligations Unconditional.................................... 66
SECTION 10.03 Reinstatement................................................ 67
SECTION 10.04 Subrogation.................................................. 67
SECTION 10.05 Remedies..................................................... 67
SECTION 10.07 Continuing Guarantee......................................... 68
SECTION 10.08 General Limitation on Guarantee
Obligations.......................................... 68
SECTION 10.09 Effectiveness of Guarantee................................... 68
ARTICLE XI
SUBORDINATION OF CERTAIN INTERCOMPANY OBLIGATIONS
SECTION 11.01. Certain Definitions
SECTION 11.02 Subordination of Subordinated
Obligations.......................................... 69
SECTION 11.03 Payment of Proceeds Upon Dissolution......................... 69
SECTION 11.04 No Prepayment................................................ 71
SECTION 11.05 Subrogation.................................................. 72
SECTION 11.06 Provisions Solely to Define Relative
Rights............................................... 72
SECTION 11.07 No Waiver of Subordination Provisions........................ 72
SECTION 11.08 Termination.................................................. 73
(iii)
EXHIBITS
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Exhibit A-1 - Form of A Note
Exhibit A-2 - Form of B Note
Exhibit B-1 - Form of Notice of A Borrowing
Exhibit B-2 - Form of Notice of B Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E - Form of Opinion of Assistant General
Counsel of the Borrower
Exhibit F - Form of Opinion of Special New York
Counsel to the Administrative Agent
(iv)
CREDIT AGREEMENT, dated as of November __, 1997, among ELECTRIC
LIGHTWAVE, INC., a Delaware corporation (the "Borrower"), CITIZENS UTILITIES
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COMPANY, a Delaware corporation (the "Parent Guarantor"), the subsidiaries of
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the Parent Guarantor (the "Subsidiary Guarantors" and, together with the Parent
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Guarantor, the "Guarantors") listed on the signature pages hereof under the
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caption the "SUBSIDIARY GUARANTORS", the banks (the "Banks") listed on the
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signature pages hereof under the caption "BANKS", and CITIBANK, N.A., a national
banking corporation, as administrative agent (in such capacity, the
"Administrative Agent").
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The Borrower and the Parent Guarantor have requested the Banks to
extend credit to the Borrower in order to enable the Borrower to borrow on a
revolving credit basis, on and after the date hereof and at any time and from
time to time prior to the Commitment Termination Date (as hereinafter defined) a
principal amount not in excess of $400,000,000 at any time outstanding. The
Borrower and the Parent Guarantor have also requested the Banks to provide a
procedure pursuant to which the Borrower may invite the Banks to bid on an
uncommitted basis on short-term borrowings by the Borrower. The proceeds of
such borrowings are to be used to repay certain intercompany indebtedness owing
to the Parent Guarantor, to provide working capital and for other general
corporate purposes of the Borrower. The Subsidiary Guarantors have agreed to
guarantee the Borrower's obligations hereunder until such time as the Parent
Guarantor receives regulatory approval to guarantee such obligations, at which
time the obligations of the Parent Guarantor hereunder shall become effective
and the Subsidiary Guarantors' obligations hereunder shall terminate. The Banks
are willing to extend such credit to the Borrower on the terms and subject to
the conditions herein set forth.
Accordingly, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
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following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"A Advance" means an advance by a Lender to the Borrower as part of an
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A Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance,
each of which shall be a "Type" of A Advance.
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Credit Agreement
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"A Borrowing" means (a) a borrowing consisting of simultaneous A
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Advances of the same Type having the same Interest Period and (b) other
than for purposes of Sections 2.02 and 3.02, (i) the simultaneous
Conversion of A Advances of one Type to A Advances of the other Type
(having, in the case of Conversions into Eurodollar Rate Advances, the same
Interest Period) and (ii) the simultaneous Continuation of Eurodollar Rate
Advances as Eurodollar Rate Advances having the same Interest Period.
"A Note" means a promissory note of the Borrower payable to the order
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of any Lender, in substantially the form of Exhibit A-1 hereto, evidencing
the aggregate indebtedness of the Borrower to such Lender resulting from
the A Advances made by such Lender.
"Advance" means an A Advance or a B Advance.
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"Administrative Fees" has the meaning assigned to such term in Section
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2.04(b).
"Administrative Questionnaire" means an administrative questionnaire
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furnished by each Bank to the Administrative Agent in connection with the
execution and delivery of this Agreement.
"Affiliate" means, when used with respect to a specified person,
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another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled or is under common Control with
the person specified.
"Applicable Facility Fee Rate" means:
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(i) 5 basis points per annum at such times as (A) the Senior Debt of
the Parent Guarantor shall be rated at least Aa3 by ▇▇▇▇▇'▇ or at least AA-
by S&P, or (B) the Parent Guarantor's outstanding commercial paper shall be
rated at least P1 by ▇▇▇▇▇'▇ and at least A1 by S&P;
(ii) 8 basis points per annum at such time as (A) the Senior Debt of
the Parent Guarantor shall be rated less than Aa3 by ▇▇▇▇▇'▇ and less than
AA- by S&P but at least Baa3 by ▇▇▇▇▇'▇ and at least BBB- by S&P, and (B)
the Parent Guarantor's outstanding commercial paper shall be rated P2 by
▇▇▇▇▇'▇ or A2 by S&P; and
(iii) 22.5 basis points per annum at all other times.
Credit Agreement
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Any change in the Applicable Facility Fee Rate shall be effective on the
date on which the applicable rating agency announces the applicable change
in rating.
"Applicable Lending Office" means, with respect to each Lender, such
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Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and, in the case of a B Advance, the office of such Lender notified
by such Lender to the Administrative Agent as its Applicable Lending Office
with respect to such B Advance.
"Applicable Margin" means:
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(i) 13 basis points per annum with respect to Eurodollar Rate
Advances at such times as (A) the Senior Debt of the Parent Guarantor shall
be rated at least Aa3 by ▇▇▇▇▇'▇ or at least AA- by S&P, or (B) the Parent
Guarantor's outstanding commercial paper shall be rated at least Pl by
▇▇▇▇▇'▇ and at least Al by S&P;
(ii) 17 basis points per annum with respect to Eurodollar Rate
Advances at such times as (A) the Senior Debt of the Parent Guarantor shall
be rated less than Aa3 by ▇▇▇▇▇'▇ and less than AA- by S&P but shall be
rated at least Baa3 by ▇▇▇▇▇'▇ and at least BBB- by S&P, and (B) the Parent
Guarantor's outstanding commercial paper shall be rated P2 by ▇▇▇▇▇'▇ or A2
by S&P; and
(iii) 52.5 basis points per annum with respect to Eurodollar Rate
Advances at all other times.
Any change in the Applicable Margin shall be effective on the date on which
the applicable rating agency announces the applicable change in rating.
"Approval Date" means the date on which the Parent Guarantor delivers
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to the Administrative Agent evidence reasonably satisfactory to the
Administrative Agent that the Parent Guarantor has received the FERC
Approval and the VPSB Approval.
"Assignment and Acceptance" means an assignment and acceptance entered
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into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit C hereto.
"B Advance" means an advance by a Lender to the Borrower as part of a
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B Borrowing resulting from the auction bidding procedure described in
Section 2.03.
Credit Agreement
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"B Borrowing" means a borrowing consisting of simultaneous B Advances
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from each of the Lenders whose offer to make one or more B Advances as part of
such borrowing has been accepted by the Borrower under the auction bidding
procedure described in Section 2.03.
"B Note" means a promissory note of the Borrower payable to the order
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of any Lender, in substantially the form of Exhibit A-2 hereto, evidencing
the indebtedness of the Borrower to such Lender resulting from a B Advance
made by such Lender.
"B Reduction" has the meaning specified in Section 2.01.
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"Base Rate" means, for any period, a fluctuating interest rate per
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annum in effect from time to time which rate per annum shall at all times
be equal to the higher of:
(a) the rate of interest announced publicly by Citibank in New
York, New York from time to time as Citibank's base rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate
for such period.
"Base Rate Advance" means an A Advance which bears interest as
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provided in Section 2.07(a)(i) or 2.07(b)(i)(x).
"Board" means the Board of Governors of the Federal Reserve System of
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the United States.
"Borrowing" means an A Borrowing or a B Borrowing.
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"Business Day" means a day of the year on which banks are not required
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or authorized to close in New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advance, on which dealings are carried on in
the London interbank market.
"Capital Lease Obligations" of any person means the obligations of
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such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under
GAAP and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such
time determined in accordance with GAAP.
Credit Agreement
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A "Change in Control" shall be deemed to have occurred if (a) any
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person or group (within the meaning of Rule 13d-5 of the Securities and
Exchange Commission as in effect on the date hereof) shall own directly or
indirectly, beneficially or of record, shares representing more than 49% of
the aggregate ordinary voting power represented by the issued and
outstanding capital stock of the Parent Guarantor; or (b) a majority of the
seats (other than vacant seats) on the board of directors of the Parent
Guarantor shall at any time have been occupied by persons who were neither
(i) nominated by the management of the Parent Guarantor nor (ii) appointed
by directors so nominated; or (c) any person or group shall otherwise
directly or indirectly Control the Parent Guarantor.
"Closing Date" means the date of the first Borrowing hereunder or such
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earlier date as the parties may agree.
"Code" means the Internal Revenue Code of 1986, as the same may be
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amended from time to time.
"Commitment" has the meaning specified in Section 2.01.
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"Commitment Termination Date" means the fifth anniversary of the date
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hereof or such later date to which the Commitment Termination Date is
extended pursuant to Section 2.05(c), provided in each case that if such
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date is not a Business Day, then the Commitment Termination Date shall be
the immediately preceding Business Day.
"Consolidated Net Worth" means, as at any date of determination, the
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consolidated stockholders' equity of the Parent Guarantor and its
consolidated Subsidiaries, as determined on a consolidated basis in
conformity with GAAP consistently applied.
"Consolidated Tangible Assets" of any person means total assets of
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such person and its consolidated Subsidiaries, determined on a consolidated
basis, less goodwill, patents, trademarks and other assets classified as
intangible assets in accordance with GAAP.
"Continuation", "Continue" and "Continued" each refers to a
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continuation of Eurodollar Rate Advances from one Interest Period to the
next Interest Period pursuant to Section 2.10.
"Control" means the possession, directly or indirectly, of the power
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to direct or cause the direction of the management or policies of a person,
whether through the ownership of voting securities, by contract or
otherwise,
Credit Agreement
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and "Controlling" and "Controlled" shall have meanings correlative thereto.
"Convert", "Conversion" and "Converted" each refers to a conversion of
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Advances of one Type into Advances of the other Type pursuant to Section
2.09 or 2.10.
"Default" means any event or condition which upon notice, lapse of
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time, or both would constitute an Event of Default.
"Designated Bidder" means (a) an Eligible Assignee or (b) a special
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purpose corporation which is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its business and
that issues (or the parent of which issues) commercial paper rated at least
P-1 by ▇▇▇▇▇'▇ or A-1 by S&P (or a comparable rating from a successor of
either of them), that, in either case, (i) is organized under the laws of
the United States or any State thereof, (ii) shall have become a party
hereto pursuant to Section 9.07(d), (e) and (f), and (iii) is not otherwise
a Lender.
"Designation Agreement" means a designation agreement entered into by
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a Lender (other than a Designated Bidder) and a Designated Bidder, and
accepted by the Administrative Agent, in substantially the form of Exhibit
D hereto.
"Domestic Lending Office" means, with respect to any Lender, the
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office of such Lender specified as its "Domestic Lending Office" in the
Administrative Questionnaire of such Lender or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office of
such Lender as such Lender may from time to time specify to the Borrower
and the Administrative Agent.
"Effective Date" means the earliest date as of which the conditions
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precedent to effectiveness set forth in Section 3.01 shall have been
satisfied or waived.
"Eligible Assignee" means:
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(a) a commercial bank organized under the laws of the United States,
or any State thereof, and having total assets in excess of $100,000,000;
(b) a savings and loan association or savings bank organized under
the laws of the United States, or any State thereof, and having total
assets in excess of $100,000,000;
Credit Agreement
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(c) a commercial bank organized under the laws of any other country
which is a member of the OECD or has concluded special lending arrangements
with the International Monetary Fund associated with its General
Arrangements to Borrow or of the Cayman Islands, or a political subdivision
of any such country, and having total assets in excess of $100,000,000,
provided that such bank is acting through a branch or agency located in the
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United States;
(d) the central bank of any country which is a member of the OECD;
(e) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership or other entity)
which is engaged in making, purchasing or otherwise investing in commercial
loans in the ordinary course of its business, and having total assets in
excess of $100,000,000;
(f) a Lender; and
(g) an Affiliate of a Lender;
provided that neither the Borrower nor any Affiliate of the Borrower shall
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qualify as an Eligible Assignee.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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the same may be amended from time to time, and the regulations promulgated
and the rulings issued thereunder.
"ERISA Affiliate" means each trade or business (whether or not
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incorporated) which together with the Parent Guarantor or a Subsidiary of
the Parent Guarantor would be deemed to be a "single employer" within the
meaning of Section 4001(b)(1) of ERISA.
"ERISA Termination Event" means (i) a "Reportable Event" described in
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Section 4043 of ERISA (other than a "Reportable Event" not subject to the
provision for 30-day notice to the PBGC under such regulations), or (ii)
the withdrawal of the Parent Guarantor or any of its ERISA Affiliates from
a Plan during a plan year in which it was a "substantial employer" as
defined in Section 4001(a)(2) of ERISA, or (iii) the filing of a notice of
intent to terminate a Plan or the treatment of a Plan amendment as a
termination under Section 4041 of ERISA, or (iv) the institution of
proceeding to terminate a Plan by the PBGC or (v) any other event or
condition which might constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any
Plan.
Credit Agreement
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"Eurocurrency Liabilities" has the meaning assigned to that term in
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Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
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office of such Lender specified as its "Eurodollar Lending Office" in the
Administrative Questionnaire of such Lender or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office is
specified, its Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the Borrower and the
Administrative Agent.
"Eurodollar Rate" means, with respect to any Eurodollar Rate Advance
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for any Interest Period, the rate (rounded upward to the nearest 1/16 of
1%) appearing on Page 3750 of the Dow ▇▇▇▇▇ Markets Service (or on any
successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations
of interest rates applicable to dollar deposits in the London interbank
market) at approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event
that such rate is not available at such time for any reason, then the
"Eurodollar Rate" with respect to such Eurodollar Rate Advance for such
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Interest Period shall be the average (rounded upward to the nearest 1/16 of
1%) of the rates at which dollar deposits of $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London
offices of the Reference Banks in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period.
"Eurodollar Rate Advance" means an A Advance which bears interest as
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provided in Section 2.07(a)(ii) or 2.07(b)(i)(y).
"Eurodollar Rate Reserve Percentage" of any Lender for any Interest
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Period for any Eurodollar Rate Advance means the effective rate (expressed
as a percentage) at which reserve requirements (including, without
limitation, emergency, supplemental and other marginal reserve
requirements) are imposed on such Lender during such Interest Period (or if
more than one such percentage shall be so applicable, the daily average of
such percentages for
Credit Agreement
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those days in such Interest Period during which any such percentage shall
be so applicable) under regulations issued from time to time by the Board
of Governors of the Federal Reserve System (or any successor) with respect
to liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"Event of Default" has the meaning assigned to such term in Article
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VII.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
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from time to time.
"Excluded Period" means, with respect to any additional amount payable
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under Section 2.12, the period falling prior to the applicable Lender's
delivery of a certificate referenced in Section 2.12(a) or 2.12(b), as
applicable, with respect to such additional amount.
"Facility Fee" has the meaning assigned to such term in Section
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2.04(a).
"Federal Funds Rate" means, for any period, a fluctuating interest
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rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"Fees" means the Facility Fee and the Administrative Fees.
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"FERC Approval" means the approval by the Federal Energy Regulatory
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Commission required for the obligations of the Parent Guarantor's
obligations under Article X to be effective.
"Financial Officer" of any corporation shall mean the President, Chief
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Financial Officer, Chief Executive Officer or Treasurer of such
corporation.
"First Mortgage Bond Indentures" means (i) the First Mortgage and
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Collateral Trust Indenture, dated as of March 1, 1947, from the Parent
Guarantor to The Marine Midland
Credit Agreement
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Trust Company of New York, as Trustee, [and (ii) the Mortgage and Deed of
Trust Indenture, dated as of June 1, 1962, from the Parent Guarantor to
Manufacturers Hanover Trust Company, as Trustee,] as the same have been and
may from time to time be amended or supplemented and in effect.
"GAAP" means generally accepted accounting principles, applied on a
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consistent basis.
"Governmental Approval" means any authorization, consent, approval,
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license, franchise, lease, ruling, tariff, rate, permit, certificate,
exemption of, or filing or registration with, any Governmental Authority
required in connection with the execution, delivery or performance by any
Obligor of this Agreement or the Notes.
"Governmental Authority" means any Federal, state, local or foreign
----------------------
court or governmental agency, authority, instrumentality or regulatory
body.
"Indebtedness" of any person means, without duplication, (a) all
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obligations of such person for borrowed money or with respect to deposits
or advances of any kind, (b) all obligations of such person evidenced by
bonds, debentures, notes or similar instruments, (c) all obligations of
such person upon which interest charges are customarily paid, (d) all
obligations of such person under conditional sale or other title retention
agreements relating to property or assets purchased by such person, (e) all
obligations of such person issued or assumed as the deferred purchase price
of property or services, (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
person, whether or not the obligations secured thereby have been assumed,
(g) all Capital Lease Obligations of such person, (h) all obligations of
such person in respect of interest rate protection agreements, foreign
currency exchange agreements or other interest or exchange rate hedging
arrangements, (i) all obligations of such person as an account party in
respect of letters of credit and bankers' acceptances and (j) any
obligation, contingent or otherwise, of such person guaranteeing or having
the economic effect of guaranteeing any Indebtedness of any other person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of such person, direct or indirect (i) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or to purchase (or to advance or supply funds for the purchase
of) any security for the payment of such Indebtedness, (ii) to purchase
property, securities or
Credit Agreement
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services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness or (iii) to maintain working capital, equity
capital or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness;
provided, however, that the term Indebtedness shall not include
endorsements for collection or deposit, in either case in the ordinary
course of business.
"Interest Period" means, with respect to any Eurodollar Rate Advance,
---------------
the period beginning on the date such Eurodollar Rate Advance is made or
Continued, or Converted from a Base Rate Advance, and ending on the last
day of the period selected by the Borrower pursuant to the provisions
below. The duration of each such Interest Period shall be one, two, three
or six or (with the consent of all of the Lenders) nine or twelve months,
as the Borrower may, upon notice received by the Administrative Agent not
later than 11:00 A.M. (New York City time) on the third Business Day prior
to the first day of such Interest Period, select; provided, however, that:
-------- -------
(i) the Borrower may not select any Interest Period that ends
after the Termination Date;
(ii) each Interest Period that begins on the last Business Day of
a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall
end on the last Business Day of the appropriate subsequent calendar
month; and
(iii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day, provided that, if such extension would cause the last
--------
day of such Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur on the next
preceding Business Day.
"Lenders" means the Banks listed on the signature pages hereof, each
-------
person that shall become a party hereto pursuant to Section 9.07(a), (b)
and (c), and, except when used in reference to an A Advance, an A
Borrowing, an A Note, a Commitment or a related term, each Designated
Bidder.
"Lien" means, with respect to any asset (a) any mortgage, deed of
----
trust, lien, pledge, encumbrance, charge, or security interest in or on
such asset, (b) the interest
Credit Agreement
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of a vendor or a lessor under any conditional sale agreement, capital
lease, or title retention agreement relating to such asset and (c) in the
case of securities, any purchase option, call, or similar right of a third
party with respect to such securities.
"Loan Documents" shall mean this Agreement and the Notes.
--------------
"Majority Lenders" means at any time Lenders holding more than 50% of
----------------
the then aggregate unpaid principal amount of the A Advances held by
Lenders, or, if no such principal amount is then outstanding, Lenders
having more than 50% of the Commitments.
"Margin Regulations" means Regulations G, U and X of the Board.
------------------
"Material Adverse Effect" means a materially adverse effect on the
-----------------------
business, assets, operations, condition, financial or otherwise, or results
of operations of (i) prior to the Approval Date, the Obligors taken as a
whole or (ii) on and after the Approval Date, the Parent Guarantor and the
Subsidiaries taken as a whole.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor
-------
thereto.
"Note" means an A Note or a B Note.
----
"Notice of A Borrowing" has the meaning specified in Section 2.02(a).
---------------------
"Notice of B Borrowing" has the meaning specified in Section 2.03(a).
---------------------
"Obligors" means the Borrower and the Guarantors.
--------
"OECD" means the Organization for Economic Cooperation and
----
Development.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
----
defined in ERISA.
"person" means any natural person, corporation, business, trust, joint
------
venture, association, company, partnership, or government, or any agency or
political subdivision thereof.
"Plan" means any pension plan (including a multiemployer plan) subject
----
to the provisions of Title IV of
Credit Agreement
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ERISA or Section 412 of the Code which is maintained for or to which
contributions are made for employees of the Parent Guarantor or any ERISA
Affiliate.
"Principal Subsidiaries" means any Subsidiary of the Parent Guarantor
----------------------
whose Consolidated Tangible Assets comprise in excess of 40% of the
Consolidated Tangible Assets of the Parent Guarantor and its consolidated
Subsidiaries as of the date hereof or at any time hereafter. In any event,
the term "Principal Subsidiaries" includes (a) the Borrower and (b) prior
to the Approval Date, the Subsidiary Guarantors.
"Rating Agencies" means S&P, Moody's and, if either or both of the
---------------
foregoing rating agencies shall not rate any long-term senior indebtedness
of any Principal Subsidiary, a nationally-recognized securities rating
agency or agencies selected by the Parent Guarantor and approved by the
Lenders.
"Reference Banks" means Citibank, ________ and ________.
---------------
"Register" has the meaning specified in Section 9.07(g).
--------
"S&P" means Standard & Poor's Ratings Services or any successor
---
thereto.
"Senior Debt" means so long as any bonds issued pursuant to the First
-----------
Mortgage Bond Indentures shall be outstanding and rated by a Rating Agency,
such bonds, and at all other times, the most senior, unsecured, non-credit
enhanced, long-term Indebtedness of the Parent Guarantor then outstanding.
"subsidiary" means, with respect to any person (herein referred to as
----------
the "parent"), any corporation, partnership, association, or other business
entity (a) of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power
or more than 50% of the general partnership interests are, at the time any
determination is being made, owned, Controlled, or held, or (b) which is,
at the time any determination is made, otherwise Controlled by the parent
or one or more subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Parent Guarantor.
----------
Credit Agreement
----------------
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"Termination Date" means the Commitment Termination Date or the
----------------
earlier date of termination in whole of the Commitments pursuant to Section
2.05(a) or Article VII.
"VPSB Approval" means the approval by the Vermont Public Service Board
-------------
required for the obligations of the Parent Guarantor's obligations under
Article X to be effective.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
---------------------------
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
SECTION 1.03. Accounting Terms. Except as otherwise expressly
----------------
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided,
however, that, for purposes of determining compliance with any covenant set
forth in Article V, such terms shall be construed in accordance with GAAP as in
effect on the date of this Agreement applied on a basis consistent with the
application used in preparing the Parent Guarantor's audited financial
statements referred to in Section 4.02.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances.
--------------
(a) Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make A Advances to the Borrower from time to time on
any Business Day during the period from the date hereof until the Termination
Date in an aggregate amount not to exceed at any time outstanding the amount set
opposite such Lender's name on the signature pages hereof or, if such Lender has
entered into any Assignment and Acceptance, set forth for such Lender in the
Register, as such amount may be reduced pursuant to Section 2.05(a) (such
Lender's "Commitment"), provided that the aggregate amount of the Commitments of
---------- --------
the Lenders shall be deemed used from time to time to the extent of the
aggregate amount of the B Advances then outstanding and such deemed use of the
aggregate amount of the Commitments shall be deemed applied to the Lenders
ratably according to their respective Commitments (such deemed use of the
aggregate amount of the Commitments being a "B Reduction").
-----------
Credit Agreement
----------------
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(b) Each A Borrowing (i) shall (except as otherwise provided in
Sections 2.09(f) and (g)) be in an aggregate amount not less than $10,000,000 or
an integral multiple of $1,000,000 in excess thereof and (ii) shall consist of A
Advances of the same Type (and, if such Advances are Eurodollar Rate Advances,
having the same Interest Period) made, Continued or Converted on the same day by
the Lenders ratably according to their respective Commitments. Within the
limits of each Lender's Commitment, the Borrower may from time to time borrow,
prepay pursuant to Section 2.11(b) and reborrow under this Section 2.01.
SECTION 2.02. Making the A Advances.
---------------------
(a) Each A Borrowing shall be made on notice, given not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed A Borrowing (in the case of an A Borrowing consisting of Eurodollar
Rate Advances) or given not later than 11:00 A.M. (New York City time) on the
Business Day of the proposed A Borrowing (in the case of an A Borrowing
consisting of Base Rate Advances), by the Borrower to the Administrative Agent,
which shall give to each Lender prompt notice thereof by telecopier, telex or
cable. Each such notice of an A Borrowing (a "Notice of A Borrowing") shall be
---------------------
by telecopier, telex or cable, in substantially the form of Exhibit B-1 hereto,
specifying therein the requested (i) date of such A Borrowing, (ii) Type of A
Advances comprising such A Borrowing, (iii) aggregate amount of such A
Borrowing, and (iv) in the case of an A Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such A Advance. Each Lender shall,
before 1:00 P.M. (New York City time) on the date of such A Borrowing, make
available for the account of its Applicable Lending Office to the Administrative
Agent at its address referred to in Section 9.02, in same day funds, such
Lender's ratable portion of such A Borrowing. After the Administrative Agent's
receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Administrative Agent will make such funds available to
the Borrower at the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
the Borrower may not select Eurodollar Rate Advances for any A Borrowing unless
the aggregate principal amount of such is $10,000,000 or an integral multiple of
$1,000,000 in excess thereof.
(c) Each Notice of A Borrowing shall be irrevocable and binding on
the Borrower. In the case of any A Borrowing which the related Notice of A
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower
shall indemnify each Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill, on or
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----------------
- 16 -
before the date specified in such Notice of A Borrowing, the applicable
conditions set forth in Article III, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the A Advance to be made by such Lender as part of such A
Borrowing. The Borrower shall pay amounts owing to any Lender pursuant to this
Section 2.02(c) within 30 days after receipt from such Lender of a certificate
setting forth in reasonable detail the calculation of the amount such Lender is
entitled to claim under this Section 2.02(c) (which certificate shall be
conclusive and binding for all purposes, absent manifest error).
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any A Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such A
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such A Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Administrative Agent, at (i) in the case
of the Borrower, the interest rate applicable at the time to A Advances
comprising such A Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Lender's A
Advance as part of such A Borrowing for purposes of this Agreement (and such A
Advance shall be deemed to have been made by such Lender on the date on which
such amount is so repaid to the Administrative Agent).
(e) The failure of any Lender to make the A Advance to be made by it
as part of any A Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its A Advance on the date of such A Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the A
Advance to be made by such other Lender on the date of any A Borrowing.
SECTION 2.03. The B Advances.
--------------
Credit Agreement
----------------
- 17 -
(a) Each Lender severally agrees that the Borrower may request B
Borrowings under this Section 2.03 from time to time on any Business Day during
the period from the date hereof until the date occurring 30 days prior to the
Termination Date in the manner set forth below; provided that, following the
--------
making of each B Borrowing, the aggregate amount of the Advances then
outstanding shall not exceed the aggregate amount of the Commitments of the
Lenders (computed without regard to any B Reduction). The following procedures
shall apply:
(i) The Borrower may request a B Borrowing under this Section 2.03 by
delivering to the Administrative Agent, by telecopier, telex or cable, a
notice of a B Borrowing (a "Notice of B Borrowing"), in substantially the
---------------------
form of Exhibit B-2 hereto, specifying the date and aggregate amount of the
proposed B Borrowing, the maturity date for repayment of each B Advance to
be made as part of such B Borrowing (which maturity date may not be earlier
than the date occurring 30 days after the date of such B Borrowing or later
than the Termination Date), the interest payment date or dates relating
thereto, and any other terms to be applicable to such B Borrowing, not
later than 10:00 A.M. (New York City time):
(A) at least one Business Day prior to the date of the proposed
B Borrowing, if the Borrower shall specify in the Notice of B
Borrowing that the rates of interest to be offered by the Lenders
shall be fixed rates per annum (such Borrowing, a "Fixed Rate B
------------
Borrowing") and
---------
(B) at least four Business Days prior to the date of the
proposed B Borrowing, if the Borrower shall instead specify in the
Notice of B Borrowing the basis to be used by the Lenders in
determining the rates of interest to be offered by them (such
Borrowing, a "Specified Basis B Borrowing").
---------------------------
Simultaneously with each such request, the Borrower shall pay to the
Administrative Agent, for the Administrative Agent's account, a non-
refundable fee in the amount heretofore agreed between the Borrower and the
Administrative Agent. Promptly following the Administrative Agent's
receipt of such request and the fee referred to in the preceding sentence,
the Administrative Agent shall notify each Lender of such request for a B
Borrowing received by it from the Borrower by sending such Lender a copy of
the related Notice of B Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more
Credit Agreement
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B Advances to the Borrower as part of such proposed B Borrowing at a rate
or rates of interest specified by such Lender in its sole discretion, by
notifying the Administrative Agent (which shall give prompt notice thereof
to the Borrower), before 10:00 A.M. (New York City time) (A) on the date of
such proposed B Borrowing (in the case of a Fixed Rate B Borrowing) and (B)
three Business Days before the date of such proposed B Borrowing (in the
case of a Specified Basis B Borrowing), of the minimum amount and maximum
amount of each B Advance which such Lender would be willing to make as part
of such proposed B Borrowing (which amounts may, subject to the proviso to
the first sentence of this Section 2.03(a), exceed such Lender's
Commitment, if any), the rate or rates of interest therefor and such
Lender's Applicable Lending Office with respect to such B Advance; provided
--------
that if the Administrative Agent in its capacity as a Lender shall, in its
sole discretion, elect to make any such offer, it shall notify the Borrower
of such offer before 9:30 A.M. (New York City time) on the date on which
notice of such election is to be given to the Administrative Agent by the
other Lenders. If any Lender shall elect not to make such an offer, such
Lender shall so notify the Administrative Agent, before 10:00 A.M. (New
York City time) on the date on which notice of such election is to be given
to the Administrative Agent by the other Lenders, and such Lender shall not
be obligated to, and shall not, make any B Advance as part of such B
Borrowing; provided that the failure by any Lender to give such notice
--------
shall not cause such Lender to be obligated to make any B Advance as part
of such proposed B Borrowing.
(iii) The Borrower shall, in turn, (A) before 11:00 A.M. (New York City
time) on the date of such proposed B Borrowing (in the case of a Fixed Rate
B Borrowing) and (B) before 1:00 P.M. (New York City time) three Business
Days before the date of such proposed B Borrowing (in the case of a
Specified Basis B Borrowing), either:
(x) cancel such B Borrowing by giving the Administrative Agent
notice to that effect, or
(y) in its sole discretion, (1) accept one or more of the offers
made by any Lender or Lenders pursuant to paragraph (ii) above by
giving notice to the Administrative Agent of the amount of each B
Advance to be made by each Lender as part of such B Borrowing
(provided that (I) the amount of each such B Advance shall be equal to
---------
or greater than the minimum amount, and equal to or less than the
maximum amount, notified to the Borrower by the Administrative Agent
on behalf of such Lender for such B Advance pursuant to
Credit Agreement
----------------
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paragraph (ii) above and (II) such offers, if accepted, must be
accepted in ascending order of the rates of interest specified by the
offering Lenders in their respective notices delivered pursuant to
paragraph (ii) above (in each case beginning with the lowest rate so
offered) and, if offers are made by two or more Lenders with the same
rates of interest for a greater aggregate principal amount than the
amount in respect of which offers are accepted, then the principal
amount of B Advances in respect of which such offers are accepted
shall be allocated by the Borrower among such Lenders as nearly as
possible (in integral multiples of $1,000,000) in proportion to the
aggregate maximum principal amount of such offers by such Lenders),
and (2) reject any remaining offers made by Lenders pursuant to
paragraph (ii) above by giving the Administrative Agent notice to that
effect.
(iv) If the Borrower notifies the Administrative Agent that such B
Borrowing is canceled pursuant to paragraph (iii)(x) above, the
Administrative Agent shall give prompt notice thereof to the Lenders and
such B Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, the Administrative
Agent shall in turn promptly notify (A) each Lender that has made an offer
as described in paragraph (ii) above, of the date and aggregate amount of
such B Borrowing and whether or not any offer or offers made by such Lender
pursuant to paragraph (ii) above have been accepted by the Borrower, (B)
each Lender that is to make a B Advance as part of such B Borrowing, of the
amount of each B Advance to be made by such Lender as part of such B
Borrowing, and (C) each Lender that is to make a B Advance as part of such
B Borrowing, upon receipt, that the Administrative Agent has received forms
of documents appearing to fulfill the applicable conditions set forth in
Article III. Each Lender that is to make a B Advance as part of such B
Borrowing shall, before 12:00 noon (New York City time) on the date of such
B Borrowing specified in the notice received from the Administrative Agent
pursuant to clause (A) of the preceding sentence or any later time when
such Lender shall have received notice from the Administrative Agent
pursuant to clause (C) of the preceding sentence, make available for the
account of its Applicable Lending Office to the Administrative Agent at its
address referred to in Section 9.02 such Lender's portion of such B
Borrowing, in same day funds. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by the Administrative
Agent of such funds, the
Credit Agreement
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Administrative Agent will make such funds available to the Borrower at the
Administrative Agent's aforesaid address. Promptly after each B Borrowing
the Administrative Agent will notify each Lender of the amount of the B
Borrowing, the consequent B Reduction and the dates upon which such B
Reduction commenced and will terminate.
(b) On or before the date of (but prior to) such B Borrowing (in the
case of a Specified Basis B Borrowing) or as promptly as practicable after the
date of such B Borrowing (in the case of a Fixed Rate B Borrowing), the Borrower
shall execute and deliver to the Administrative Agent a B Note payable to the
order of each Lender participating in such Borrowing for each of the B Advances
to be made by such Lender as part of such B Borrowing, in a principal amount
equal to the principal amount of the B Advance to be evidenced thereby and
otherwise on such terms as were agreed to for such B Advance in accordance with
this Section 2.03. The indebtedness of the Borrower resulting from each B
Advance made to the Borrower as part of a B Borrowing shall be evidenced by a
separate B Note of the Borrower payable to the order of the Lender making such B
Advance.
(c) Each B Borrowing shall be in an aggregate amount not less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof, but no B
Borrowing shall be made if, following the making of such B Borrowing, the
Borrower would not be in compliance with the limitation set forth in the proviso
to the first sentence of subsection (a) above.
(d) Within the limits and on the conditions set forth in this Section
2.03, the Borrower may from time to time borrow under this Section 2.03, repay
pursuant to subsection (e) below, and reborrow under this Section 2.03.
(e) The Borrower shall repay to the Administrative Agent for the
account of each Lender which has made a B Advance, or each other holder of a B
Note, on the maturity date of each B Advance (such maturity date being that
specified by the Borrower for repayment of such B Advance in the related Notice
of B Borrowing delivered pursuant to subsection (a)(i) above and provided in the
B Note evidencing such B Advance), the then unpaid principal amount of such B
Advance. The Borrower shall have no right to prepay any principal amount of any
B Advance.
(f) The Borrower shall pay interest on the unpaid principal amount of
each B Advance from the date of such B Advance to the date the principal amount
of such B Advance is repaid in full, at the rate of interest for such B Advance
specified by the Lender making such B Advance in its notice with respect thereto
delivered pursuant to subsection (a)(ii) above, payable on the interest payment
date or dates specified by the
Credit Agreement
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Borrower for such B Advance in the related Notice of B Borrowing delivered
pursuant to subsection (a)(i) above, as provided in the B Note evidencing such B
Advance.
SECTION 2.04. Certain Fees.
------------
(a) Facility Fee. The Borrower agrees to pay to the Administrative
------------
Agent for the account of each Lender (other than the Designated Bidders) a
facility fee (the "Facility Fee") on the average daily amount (whether used or
------------
unused) of such Lender's Commitment from the date on which the Borrower signs
this Agreement (in the case of each Bank) and from the effective date specified
in the Assignment and Acceptance pursuant to which it became a Lender (in the
case of each such Lender) until the Termination Date at a rate per annum equal
to the Applicable Facility Fee Rate as in effect from time to time. Accrued
Facility Fee shall be paid on the last Business Day of each March, June,
September and December and on the Termination Date.
(b) Administrative Agent's Fee. The Borrower acknowledges its
--------------------------
agreement to pay to the Administrative Agent, for the Administrative Agent's own
account, administrative fees (the "Administrative Fees") at the times and in the
-------------------
amounts heretofore agreed between the Borrower and the Administrative Agent.
SECTION 2.05. Changes in and Extensions of the Commitments.
--------------------------------------------
(a) Commitment Reductions. The Borrower shall have the right, upon
---------------------
at least three Business Days' notice to the Administrative Agent, to terminate
in whole or reduce ratably in part the unused portions of the respective
Commitments of the Lenders, provided that the aggregate amount of the
--------
Commitments of the Lenders shall not be reduced to an amount which is less than
the aggregate principal amount of the Advances then outstanding, and provided
--------
further that each partial reduction shall be in an aggregate amount of
-------
$10,000,000 or an integral multiple of $1,000,000 in excess thereof.
(b) The Borrower shall have the right from time to time, without the
consent of the Lenders, to effect an increase in the aggregate Commitments
hereunder by adding as parties to this Agreement one or more other banks
satisfactory to the Administrative Agent (each such added bank being herein
called an "Additional Lender") and/or by allowing one or more Lenders to
-----------------
increase their Commitments hereunder (so that such added and increased
Commitments shall in the aggregate equal the aggregate amount of the increase in
Commitments effected pursuant hereto). Notwithstanding the foregoing, no
increase in the aggregate
Credit Agreement
----------------
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Commitments hereunder pursuant to this paragraph (b) shall be effective unless:
(i) each Additional Lender shall have entered into an agreement
in form and substance satisfactory to the Borrower and the Administrative
Agent pursuant to which such Additional Lender undertakes a Commitment and,
upon the effectiveness of such agreement (the date of the effectiveness of
any such agreement being hereinafter referred to as the "Increased
---------
Commitment Date"), such Additional Lender shall be a "Lender" for all
---------------
purposes of this Agreement;
(ii) the Borrower shall have given the Administrative Agent
notice of such increase at least five Business Days prior to the relevant
Increased Commitment Date;
(iii) any increase in the Commitments hereunder, and any
Commitment of an Additional Lender, shall be in a minimum amount of
$25,000,000 or an integral multiple of $25,000,000 in excess thereof;
(iv) no increase in the Commitments hereunder shall result in
the aggregate amount of the Commitments exceeding $400,000,000;
(v) no Lender's Commitment shall be increased without the prior
express written consent of such Lender;
(vi) on such Increased Commitment Date, either (i) no A Advances
shall be outstanding hereunder and no Notice of A Borrowing shall be
pending or (ii) any outstanding A Advances shall be converted to B Advances
and no notice of borrowing of A Advances shall be pending;
(vii) no Event of Default shall have occurred and be continuing
on and as of the date of the notice referred to in clause (ii) above or on
such Increased Commitment Date;
(viii) no Lender may increase its Commitment hereunder unless
all of the Lenders shall have been given the same opportunity to increase
their Commitments, and the aggregate amount of the increase offered to all
of the Lenders shall be allocated among them pro rata according to the
respective increases that they have agreed to accept; and
Credit Agreement
----------------
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(ix) there shall not have occurred any ratable reduction of the
Commitments pursuant to Section 2.05(a) hereof on or prior to such
Increased Commitment Date.
(c) Commitment Extensions. The Borrower may, by notice to the
---------------------
Administrative Agent (which shall promptly notify the Lenders) not less than 60
days and not more than 180 days prior to each anniversary of the Effective Date,
request that the Lenders (other than the Designated Bidders) extend the
Commitment Termination Date for an additional one-year period from the
Commitment Termination Date then in effect hereunder (the "Existing Commitment
-------------------
Termination Date"). Each such Lender, acting in its sole discretion, shall, by
----------------
notice to the Borrower and the Administrative Agent given no later than the date
(herein, the "Consent Date") that is 20 days after the date of such extension
------------
request (or, if such date is not a Business Day, the next succeeding Business
Day), advise the Borrower and the Administrative Agent whether or not such
Lender agrees to such extension; provided that each Lender that determines not
--------
to extend the Commitment Termination Date (a "Non-Extending Lender") shall
--------------------
notify the Administrative Agent (which shall notify the Lenders) of such fact
promptly after such determination (but in any event no later than the Consent
Date) and any Lender that does not advise the Borrower on or before the Consent
Date shall be deemed to be a Non-Extending Lender. The election of any Lender
to agree to such extension shall not obligate any other Lender to so agree. If
and only if each of the Lenders has advised the Borrower and the Administrative
Agent of its agreement to extend the Commitment Termination Date as aforesaid on
or prior to the Consent Date, then the Commitment Termination Date shall be
extended automatically, without any other action by any person, to the date that
is one year after the Existing Commitment Termination Date. The Administrative
Agent will promptly notify the Borrower and the Lenders of each extension of the
Commitment Termination Date pursuant to this Section 2.05(b).
SECTION 2.06. Repayment of A Advances. The Borrower hereby promises
-----------------------
to pay to the Administrative Agent for account of each Lender the entire
outstanding principal amount of such Lender's A Advances, and each A Advance
shall mature, on the Termination Date.
SECTION 2.07. Interest.
--------
(a) Ordinary Interest. The Borrower shall pay interest on the unpaid
-----------------
principal amount of each A Advance made by each Lender, from the date of such A
Advance until such principal amount shall be paid in full, at the following
rates per annum:
(i) Base Rate Advances. If such A Advance is a Base Rate Advance, a
------------------
rate per annum equal to the Base Rate in
Credit Agreement
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effect from time to time, payable quarterly in arrears on the last Business
Day of each March, June, September and December and on the date such Base
Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. If such A Advance is a Eurodollar Rate
------------------------
Advance, a rate per annum for each Interest Period for such A Advance equal
to the sum of the Eurodollar Rate for such Interest Period plus the
----
Applicable Margin for Eurodollar Rate Advances as in effect from time to
time, payable on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on the day which occurs
three months after the first day of such Interest Period, and on the date
such Eurodollar Rate Advance shall be Continued, Converted or paid in full.
(b) Default Interest. The Borrower shall pay interest on the unpaid
----------------
principal amount of each A Advance and B Advance that is not paid when due
(whether at stated maturity, by acceleration or otherwise), and on the unpaid
amount of any interest, fee or other amount payable hereunder that is not paid
when due, payable on demand, at a rate per annum during the period from the due
date thereof to the date on which such amount is paid in full equal to:
(i) in the case of any amount of principal of such Advance:
(x) in the case of any Base Rate Advance, 2% plus the rate which
----
would otherwise be applicable to such Advance, and
(y) in the case of any Eurodollar Rate Advance, for the balance
of the then current Interest Period, 2% plus the rate which would
----
otherwise be applicable to such Advance for such Interest Period and,
thereafter, 2% plus the Base Rate as in effect from time to time, and
----
(ii) in the case of all other amounts, 2% plus the Base Rate as in
----
effect from time to time.
SECTION 2.08. Additional Interest on Eurodollar Rate Advances. The
-----------------------------------------------
Borrower shall pay to each Lender, so long as such Lender shall be required
under regulations of the Board to maintain reserves with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities (or the
equivalent), additional interest on the unpaid principal amount of each
Eurodollar Rate Advance of such Lender, from the date of such Eurodollar Rate
Advance until such principal amount is paid in full, at an interest rate per
annum equal at all times to the
Credit Agreement
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remainder obtained by subtracting (i) the Eurodollar Rate for the then-current
Interest Period for such Eurodollar Rate Advance from (ii) the rate obtained by
dividing such Eurodollar Rate by a percentage equal to 100% minus the Eurodollar
-----
Rate Reserve Percentage of such Lender for such Interest Period, payable on each
date on which interest is payable on such Eurodollar Rate Advance. Any Lender
wishing to require payment of such additional interest shall so notify the
Borrower and the Administrative Agent and shall furnish to the Borrower at least
five Business Days prior to each date on which interest is payable on the
Eurodollar Rate Advances of such Lender a certificate (which certificate shall
be conclusive and binding for all purposes, absent manifest error) setting forth
the basis for such assertion and the amount to which such Lender is then
entitled under this Section (which shall be consistent with such Lender's good
faith estimate of the level at which the related reserves are being maintained
by it).
SECTION 2.09. Interest Rate Determinations; Changes in Rating
-----------------------------------------------
Systems.
-------
(a) If the second sentence of the definition of "Eurodollar Rate" in
Section 1.01 is applicable, each Reference Bank agrees to furnish to the
Administrative Agent timely information for the purpose of determining each
Eurodollar Rate. If any one or more of the Reference Banks shall not furnish
such timely information to the Administrative Agent for the purpose of
determining any such interest rate, the Administrative Agent shall determine
such interest rate on the basis of timely information furnished by the remaining
Reference Banks (subject to clause (c) below).
(b) The Administrative Agent shall give prompt notice to the Borrower
and the Lenders of the applicable interest rate determined by the Administrative
Agent for the purpose of Section 2.07 and the applicable rate, if any, furnished
by each Reference Bank for the purpose of determining the applicable interest
rate under Section 2.07(a)(ii).
(c) If the second sentence of the definition of "Eurodollar Rate" in
Section 1.01 is applicable and fewer than two Reference Banks furnish timely
information to the Administrative Agent for determining the Eurodollar Rate for
any Interest Period for any Eurodollar Rate Advances,
(i) the Administrative Agent shall forthwith notify the Borrower and
the Lenders that the interest rate cannot be determined for such Eurodollar
Rate Advances for such Interest Period,
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(ii) each Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate
Advance, and
(iii) the obligation of the Lenders to make or Continue, or to Convert
A Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the Majority
Lenders notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Majority Lenders of making, funding or maintaining their respective Eurodollar
Rate Advances for such Interest Period, the Administrative Agent shall forthwith
so notify the Borrower and the Lenders, whereupon
(i) each Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate
Advance, and
(ii) the obligation of the Lenders to make or Continue, or to Convert
A Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and such Lenders that the
circumstances causing such suspension no longer exist.
(e) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders and
such Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(f) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any A Borrowing shall be reduced, by
prepayment or otherwise, to less than $5,000,000, such A Advances shall
automatically Convert into Base Rate Advances.
(g) Upon the occurrence and during the continuance of any Event of
Default and upon notice from the Administrative Agent to the Borrower at the
request of the Majority Lenders, (x) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (y) the obligation of the Lenders to make
or Continue, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
Credit Agreement
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(h) If the rating system of either ▇▇▇▇▇'▇ or S&P shall change, or if
either such rating agency shall cease to be in the business of rating corporate
debt obligations, the Borrower and the Administrative Agent (on behalf of the
Lenders) shall negotiate in good faith to amend the references to specific
ratings in this Agreement to reflect such changed rating system or the non-
availability of ratings from such rating agency (provided that any such
--------
amendment to such specific ratings shall in no event be effective without the
approval of the Majority Lenders).
SECTION 2.10. Voluntary Conversion and Continuation of A Advances.
---------------------------------------------------
(a) Optional Conversion. The Borrower may on any Business Day, upon
-------------------
notice given to the Administrative Agent not later than 11:00 A.M. (New York
City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.09 and 2.13, Convert all
or any portion of the outstanding A Advances of one Type comprising part of the
same A Borrowing into A Advances of the other Type; provided that (i) any
--------
Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in an
amount not less than the minimum amount specified in Section 2.02(b) and (ii) in
the case of any such Conversion of a Eurodollar Rate Advance into a Base Rate
Advance on a day other than the last day of an Interest Period therefor, the
Borrower shall reimburse the Lenders in respect thereof pursuant to Section
9.04(c). Each such notice of a Conversion shall, within the restrictions
specified above, specify (x) the date of such Conversion, (y) the A Advances to
be Converted, and (z) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for each such A Advance. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
(b) Continuations. The Borrower may, on any Business Day, upon
-------------
notice given to the Administrative Agent not later than 11:00 A.M. (New York
City time) on the third Business Day prior to the date of the proposed
Continuation and subject to the provisions of Sections 2.09 and 2.13, Continue
all or any portion of the outstanding Eurodollar Rate Advances comprising part
of the same A Borrowing for one or more Interest Periods; provided that (i)
--------
Eurodollar Rate Advances so Continued and having the same Interest Period shall
be in an amount not less than the minimum amount specified in Section 2.02(b)
and (ii) in the case of any such Continuation on a day other than the last day
of an Interest Period therefor, the Borrower shall reimburse the Lenders in
respect thereof pursuant to Section 9.04(c). Each such notice of a Continuation
shall, within the restrictions specified above, specify (x) the date of such
Continuation, (y) the Eurodollar Rate Advances to be Continued and (y) the
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----------------
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duration of the initial Interest Period (or Interest Periods) for the Eurodollar
Rate Advances subject to such Continuation. Each notice of Continuation shall
be irrevocable and binding on the Borrower.
SECTION 2.11. Prepayments of A Advances.
-------------------------
(a) The Borrower shall have no right to prepay any principal amount
of any A Advances other than as provided in subsection (b) below.
(b) The Borrower may, upon at least one Business Day's notice to the
Administrative Agent stating the proposed date and aggregate principal amount of
the prepayment, and if such notice is given the Borrower shall, prepay the
outstanding principal amounts of the Advances comprising part of the same A
Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however, that
-------- -------
(x) each partial prepayment shall be in an aggregate principal amount not less
than $10,000,000 or integral multiples of $1,000,000 in excess thereof and (y)
in the case of any such prepayment of a Eurodollar Rate Advance on a day other
than the last day of an Interest Period therefor, the Borrower shall reimburse
the Lenders in respect thereof pursuant to Section 9.04(c).
SECTION 2.12. Increased Costs.
---------------
(a) If, due to either (i) the introduction of or any change (other
than any change by way of imposition or increase of reserve requirements
included in the Eurodollar Rate Reserve Percentage) in or in the interpretation
of (to the extent any such introduction or change occurs after the date hereof)
any law or regulation or (ii) the compliance with any guideline or request of
any central bank or other governmental authority adopted or made after the date
hereof (whether or not having the force of law), there shall be any increase in
the cost to any Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances, the Borrower shall from time to time, within 30 days
after delivery by such Lender to the Borrower (with a copy to the Administrative
Agent) of a certificate as to the amount of (and specifying in reasonable detail
the basis for) such increased cost, pay (subject to Section 2.12(c)) to the
Administrative Agent for the account of such Lender the amount of the increased
costs set forth in such certificate (which certificate shall be conclusive and
binding for all purposes, absent manifest error); provided that, before making
--------
any such demand, each Lender agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to designate a
different Applicable Lending Office if the making of such a designation would
avoid the need for, or reduce the
Credit Agreement
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amount of, such increased cost and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
(b) If any Lender (other than a Designated Bidder) determines that
compliance with any law or regulation enacted or introduced after the date
hereof or any guideline or request of any central bank or other governmental
authority adopted or made after the date hereof (whether or not having the force
of law) affects or would affect the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and that
the amount of such capital is increased by or based upon the existence of such
Lender's commitment to lend hereunder and other commitments of this type, then,
within 30 days after delivery by such Lender to the Borrower (with a copy to the
Administrative Agent) of a certificate as to (and specifying in reasonable
detail the basis for) the Additional Amounts (as hereinafter defined) requested
by such Lender, the Borrower shall pay (subject to Section 2.12(c)) to the
Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, the amount specified in such certificate (which
certificate shall be conclusive and binding for all purposes, absent manifest
error). For purposes hereof, the "Additional Amounts" that may be requested by
------------------
any Lender under this Section 2.12(b) means such amounts as such Lender shall
reasonably determine to be sufficient to compensate such Lender or any
corporation controlling such Lender for any costs that such Lender reasonably
determines are attributable to the maintenance by such Lender (or such
corporation) of capital in respect of its commitments to lend hereunder (such
compensation to include, without limitation, an amount equal to any reduction of
the rate of return on assets or equity of such Lender (or such corporation) to a
level below that which such Lender (or such corporation) could have achieved but
for the enactment or introduction of such law or regulation or the adoption or
making of such guideline or request).
(c) The Borrower shall not be obligated to pay any additional amounts
arising pursuant to clauses (a) and (b) of this Section 2.12 that are
attributable to the Excluded Period with respect to such additional amount;
provided, that if an applicable law, rule, regulation, guideline or request
--------
shall be adopted or made on any date and shall be applicable to the period (a
"Retroactive Period") prior to the date on which such law, rule, regulation,
-------------------
guideline or request is adopted or made, the limitation on the Borrower's
obligations to pay such additional amounts hereunder shall not apply to the
additional amounts payable in respect of such Retroactive Period.
SECTION 2.13. Illegality. (a) Notwithstanding any other provision
----------
herein, if any change in any law or regulation or
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in the interpretation thereof by any governmental authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Rate Advance or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Rate Advance,
then, by written notice to the Borrower and to the Administrative Agent, such
Lender may:
(i) declare that Eurodollar Rate Advances will not thereafter be
made by such Lender hereunder, whereupon any request by the Borrower for
a Eurodollar Rate Advance shall, as to such Lender only, be deemed a
request for a Base Rate Advance (or for a Conversion thereto pursuant to
Section 2.10(a)) unless such declaration shall be subsequently
withdrawn; and
(ii) require that all outstanding Eurodollar Rate Advances made by
it be Converted to Base Rate Loans, in which event all such Eurodollar
Rate Advances shall be automatically Converted to Base Rate Loans as of
the effective date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Rate Advances that would have been made by such Lender or
the Converted Eurodollar Rate Advances 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 Rate Advances.
(b) For purposes of this Section 2.13, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Rate Advance, if lawful on the
last day of the Interest Period currently applicable to such Eurodollar Rate
Advance; in all other cases such notice shall be effective on the date of
receipt by the Borrower.
SECTION 2.14. Payments and Computations.
-------------------------
(a) The Borrower shall make each payment hereunder and under the Notes
without set-off or counterclaim not later than 11:00 A.M. (New York City time)
on the day when due in U.S. dollars to the Administrative Agent at its address
referred to in Section 9.02 in same day funds. The Administrative Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal, interest or Facility Fees ratably (other than amounts payable
pursuant to Section 2.03, 2.08, 2.12 or 2.15) to the Lenders for the account of
their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender
Credit Agreement
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for the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 9.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Administrative Agent shall make
all payments hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such Assignment
and Acceptance shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves.
(b) All computations of interest based on Citibank's base rate and of
Facility Fees shall be made by the Administrative Agent on the basis of a year
of 365 or 366 days, as the case may be, and all computations of interest based
on the Eurodollar Rate or the Federal Funds Rate shall be made by the
Administrative Agent, and all computations of interest pursuant to Section 2.08
shall be made by a Lender, on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or Facility Fees are payable.
Each determination by the Administrative Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder or under the Notes would be due on a
day other than a Business Day, such due date shall be extended to the next
succeeding Business Day, and any such extension of such due date shall in such
case be included in the computation of payment of interest or Facility Fee, as
the case may be; provided, however, if such extension would cause payment of
-------- -------
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such payment in full, the Administrative Agent
may assume that the Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Lender on such due date an amount
equal to the amount then due such Lender. If and to the extent that the
Borrower shall not have so made such payment in full to the Administrative
Agent, each Lender shall repay to the Administrative Agent forthwith on demand
such amount distributed to such Lender together with interest thereon, for each
day from the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Administrative Agent, at the Federal Funds
Rate.
Credit Agreement
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SECTION 2.15. Taxes.
-----
(a) Any and all payments by the Borrower hereunder or under the Notes
shall be made, in accordance with Section 2.14, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding, in
---------
the case of each Lender and the Administrative Agent, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction under the laws of
which such Lender or the Administrative Agent (as the case may be) is organized
or any political subdivision thereof and, in the case of each Lender, taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction of
such Lender's Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes"). If the Borrower
-----
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any Note to any Lender or the Administrative Agent,
(i) the sum payable shall be increased as may be necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 2.15) such Lender or the Administrative Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law. Each Lender
represents and warrants that no Taxes will be incurred on the date hereof in
connection with the execution and delivery of the Loan Documents.
(b) In addition, the Borrower agrees to pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under the Notes or from
the execution, delivery or registration of, or otherwise with respect to, this
Agreement or the Notes (hereinafter referred to as "Other Taxes"). Each Lender
-----------
represents and warrants that no Other Taxes will be incurred on the date hereof
in connection with the execution and delivery of the Loan Documents.
(c) The Borrower will indemnify each Lender and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes and Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.15) paid by such Lender or the Administrative Agent
(as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. Such Lender will use
reasonable efforts to contest such a Tax or
Credit Agreement
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Other Tax that is, in its opinion, incorrectly asserted. This indemnification
shall be made within 30 days from the date such Lender or the Administrative
Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
will furnish to the Administrative Agent, at its address referred to in Section
9.02, the original or a certified copy of a receipt evidencing payment thereof.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement (in the case of each Bank) and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender (in the case of each other
Lender), and from time to time thereafter if requested in writing by the
[Administrative Agent] (but only so long as such Lender remains lawfully able to
do so), shall provide the [Administrative Agent] with Internal Revenue Service
form 1001 or 4224, as appropriate, or any successor form prescribed by the
Internal Revenue Service, certifying that such Lender is entitled to benefits
under an income tax treaty to which the United States is a party which reduces
the rate of withholding tax on payments of interest or certifying that the
income receivable pursuant to this Agreement is effectively connected with the
conduct of a trade or business in the United States. If the form provided by a
Lender at the time such Lender first becomes a party to this Agreement indicates
a United States interest withholding tax rate in excess of zero, withholding tax
at such rate shall be considered excluded from "Taxes" as defined in Section
2.15(a).
(f) For any period with respect to which a Lender has failed to provide
the [Administrative Agent] with the appropriate form described in Section
2.15(e) (other than if such failure is due to a change in law occurring
subsequent to the date on which a form originally was required to be provided,
or if such form otherwise is not required under the first sentence of subsection
(e) above), such Lender shall not be entitled to indemnification under Section
2.15(a) with respect to Taxes imposed by the United States; provided, however,
-------- -------
that should a Lender become subject to Taxes because of its failure to deliver a
form required hereunder, the Borrower shall take such steps as the Lender shall
reasonably request to assist the Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable pursuant to this
Section 2.15 shall use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office(s) if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts
Credit Agreement
----------------
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that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
(h) If a Lender or the Administrative Agent (as the case may be) shall
become aware that it is entitled to claim a Refund (as hereinafter defined) from
a taxing authority, such Lender or the Administrative Agent shall promptly
notify the Borrower of the availability of such Refund and shall, within 30 days
after receipt of a written request by the Borrower, make a claim to such taxing
authority for such Refund at the Borrower's expense if, in the judgment of such
Lender or the Administrative Agent (as the case may be), the making such claim
will not be otherwise disadvantageous to it; provided that nothing in this
--------
Section 2.15(h) shall require any Lender or the Administrative Agent to
institute any administrative, judicial or other proceeding (other than the
filing of a claim for any such Refund) to obtain any such Refund. If a Lender
or the Administrative Agent (as the case may be) receives a Refund from a taxing
authority, it shall promptly pay to the Borrower the amount so received (but
only to the extent of indemnity payments made, or additional amounts paid, by
the Borrower under this Section 2.15 with respect to the Taxes or Other Taxes
giving rise to such Refund), net of all reasonable out-of-pocket expenses
(including the net amount of taxes, if any, imposed on such Lender or the
Administrative Agent with respect to such Refund) of such Lender or
Administrative Agent, and without interest (other than interest paid by the
relevant taxing authority with respect to such Refund); provided, however, that
-------- -------
the Borrower, upon the request of such Lender or the Administrative Agent, shall
repay the amount paid over to the Borrower (plus penalties, interest and other
charges) to such Lender or the Administrative Agent in the event such Lender or
the Administrative Agent is required to repay such Refund to such taxing
authority. Nothing contained in this Section 2.15 shall require any Lender or
the Administrative Agent to make available any of its tax returns (or any other
information that it deems to be confidential or proprietary). For purposes of
this Section 2.15(h), a "Refund" means a refund of Taxes or Other Taxes (other
------
than any such refund in the form of a tax credit) for which a Lender or the
Administrative Agent, as the case may be, has been indemnified by the Borrower
(or with respect to which the Borrower has paid additional amounts) pursuant to
this Section 2.15, provided that the entitlement to such refund arises solely
--------
from a manifest error in the amount of such Taxes or Other Taxes so paid.
SECTION 2.16. Sharing of Payments, Etc. If any Lender shall obtain any
-------------------------
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the A Advances made by it (other than
pursuant to Section 2.08, 2.12 or 2.15) in excess of its ratable share of
payments on
Credit Agreement
----------------
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account of the A Advances obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participations in the A Advances
made by them as shall be necessary to cause such purchasing Lender to share the
excess payment ratably with each of them, provided, however, that if all or any
-------- -------
portion of such excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section 2.16 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such participation.
ARTICLE III
CONDITIONS OF LENDING
The obligations of the Lenders to make Advances hereunder are subject to
the satisfaction of the following conditions:
SECTION 3.01. All Borrowings. On the date of each Borrowing:
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.02 or 2.03, as applicable;
(b) The representations and warranties set forth in Article IV shall be
true and correct in all material respects on and as of the date of such
Borrowing with the same effect as though made on and as of such date,
except to the extent such representations and warranties expressly relate
to an earlier date;
(c) The Borrower shall be in compliance with all of the terms and
provisions set forth herein and in each other Loan Document on its part to
be observed or performed, and at the time of, and immediately after such
Borrowing, no Event of Default or Default shall have occurred and be
continuing; and
(d) Each Lender that shall not have previously received an appropriate
Note shall have received a duly executed B Note or A Note, as applicable,
payable to its order.
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Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date of such Borrowing as to the matters specified in
paragraphs (b) and (c) of this Section 3.01.
SECTION 3.02. First Borrowing. On the Closing Date:
(a) Each Lender shall have received a duly executed B Note and A Note;
(b) The Administrative Agent shall have received a favorable written
opinion of either the general counsel or the corporate secretary (provided
that such corporate secretary is an attorney admitted to practice law, and
is in good standing, in a jurisdiction within the United States of America)
of the Parent Guarantor, dated the Closing Date and addressed to the
Lenders, to the effect set forth in Exhibit E hereto, and the Parent
Guarantor hereby instructs such counsel to deliver such opinion to the
Administrative Agent;
(c) The Administrative Agent shall have received a favorable written
opinion of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Administrative
Agent, to the effect set forth in Exhibit F hereto;
(d) All legal matters incident to this Agreement and the borrowings
hereunder shall be satisfactory to the Administrative Agent and the
Lenders;
(e) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments thereto,
of each Obligor, certified as of a recent date by the Secretary of State of
the state of its organization, and a certificate as to the good standing of
each Obligor as of a recent date, from such Secretary of State; (ii) a
certificate of the Secretary or Assistant Secretary of each Obligor dated
the Closing Date and certifying (A) that attached thereto is a true and
complete copy of the by-laws of such Obligor as in effect on the Closing
Date and at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of Directors of such
Obligor authorizing the execution, delivery and performance of the Loan
Documents to which it is a party and (in the case of the Borrower) the
borrowings hereunder, and that such resolutions have not been modified,
rescinded, or amended and are in full force and effect, (C) that the
certificate or articles of incorporation of such Obligor have not been
amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above, and
(D) as to the incumbency
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and specimen signature of each officer executing any Loan Document or any
other document delivered in connection herewith on behalf of such Obligor;
(iii) a certificate of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the certificate
pursuant to (ii) above; and (iv) such other documents as the Administrative
Agent or the Lenders may reasonably request;
(f) The Administrative Agent shall have received a certificate, dated
the Closing Date and signed by a Financial Officer of the Parent Guarantor,
confirming compliance with the conditions precedent set forth in paragraphs
(b) and (c) of Section 3.01; and
(g) The Administrative Agent shall have received all Fees and other
amounts due and payable on or prior to the Closing Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Parent Guarantor represents and warrants to each of the Lenders that:
SECTION 4.01. Organization; Powers; Governmental Approvals. (a) The
--------------------------------------------
Parent Guarantor and each Principal Subsidiary (i) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted and
(iii) is qualified to do business in every jurisdiction where such qualification
is required, except where the failure so to qualify would not have a material
adverse effect on the condition, financial condition or otherwise, results of
operations, business, assets, operations, or prospects of the Parent Guarantor
and its Subsidiaries taken as a whole. Each Obligor's execution, delivery and
performance of this Agreement are within its corporate powers, have been duly
authorized by all necessary action and do not violate or create a default under
law, its constituent documents, or any contractual provision binding upon it.
This Agreement and (in the case of the Borrower) the Notes constitute legal,
valid and binding obligations of each Obligor enforceable against it in
accordance with their respective terms (except as such enforceability may be
limited by applicable bankruptcy, reorganization, insolvency, moratorium and
other laws affecting the rights of creditors generally and general principles of
equity).
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(b) All Governmental Approvals (other than, until the Approval Date, the
FERC Approval and the VPSB Approval) have been duly obtained, are in full force
and effect without having been amended or modified in any manner that may impair
the ability of any Obligor to perform its obligations under this Agreement or
the Notes, and are not the subject of any pending or overtly threatened appeal,
stay or other challenge. No Interest Period requested with respect to any
Borrowing extends beyond the latest date permitted for Borrowings by any
Governmental Approval then in effect.
SECTION 4.02. Financial Statements. The Parent Guarantor has furnished
--------------------
to the Lenders, for itself and its Principal Subsidiaries, their most recent
filings with the Securities and Exchange Commission on Forms 10-K and 10-Q.
Such Forms 10-K and 10-Q, taken together with any subsequent filings by the
Parent Guarantor and its Principal Subsidiaries with the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended, furnished to
each Lender prior to the date hereof, do not contain any untrue statement of a
material fact or omit to state a material fact necessary to make any statement
therein, in light of the circumstances under which it was made, not misleading.
Each of the financial statements in such Forms 10-K and 10-Q, and each such
subsequent filing, has been, and each of the financial statements to be
furnished pursuant to Section 5.02 will be, prepared in accordance with GAAP
applied consistently with prior periods, except as therein noted, and fairly
presents or will fairly present in all material respects the consolidated
financial position of the Parent Guarantor or Principal Subsidiary, as the case
may be, as of the date thereof and the results of the operations of the Parent
Guarantor and the Subsidiaries or Principal Subsidiary, as the case may be, for
the period then ended.
SECTION 4.03. No Material Adverse Change. From the date of the Parent
--------------------------
Guarantor's most recent financial statements contained in its Annual Report on
Form 10-K for the fiscal year ended December 31, 1996 furnished to the Lenders
pursuant to Section 4.02 through the date of the initial Borrowing, and except
as described in the Parent Guarantor's Quarterly Reports on Form 10-Q for the
quarterly periods ended June 30, 1997 and September 30, 1997 furnished to the
Lenders pursuant to Section 4.02 prior to the date hereof, there has been no
material adverse change in, and there has occurred no event or condition which
is likely to result in a material adverse change in, the condition, financial or
otherwise, results of operations, business, assets or operations of (i) prior to
the Approval Date, the Obligors taken as a whole or (ii) on and after the
Approval Date, the Parent Guarantor and the Subsidiaries taken as a whole.
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SECTION 4.04. Title to Properties; Possession Under Leases. (a) To the
--------------------------------------------
best of the Parent Guarantor's knowledge, each of the Parent Guarantor and the
Principal Subsidiaries has good and marketable title to, or valid leasehold
interests in, all its material properties and assets and licenses, easements,
rights of way and other rights to use, except for minor defects in title that do
not interfere with its ability to conduct its business as currently conducted or
to utilize such properties and assets for their intended purposes. All such
material properties and assets are free and clear of Liens, other than Liens
expressly permitted by Section 6.01.
(b) Each of the Parent Guarantor and the Principal Subsidiaries has
complied with all obligations under all material leases to which it is a party
and all such leases are in full force and effect, except where such failure to
comply or maintain such leases in full force and effect would not have a
Material Adverse Effect. Each of the Parent Guarantor and the Subsidiaries
enjoys peaceful and undisturbed possession under all such material leases except
where such failure would not have a Material Adverse Effect.
SECTION 4.05. Ownership of Subsidiaries. The Parent Guarantor owns,
-------------------------
free and clear of any Lien (other than Liens expressly permitted by Section
6.01), all of the issued and outstanding shares of common stock of each of the
Principal Subsidiaries.
SECTION 4.06. Litigation; Compliance with Laws. (a) There is no
--------------------------------
action, suit, or proceeding, or any governmental investigation or any
arbitration, in each case pending or, to the knowledge of the Parent Guarantor,
threatened against the Parent Guarantor or any of the Subsidiaries or any
material property of any thereof before any court or arbitrator or any
governmental or administrative body, agency, or official on the date hereof or
the date of the initial Borrowing which (i) challenges the validity of this
Agreement or the Notes or (ii), except as disclosed in the Parent Guarantor's
Annual Report on Form 10-K for the fiscal year ended December 31, 1996 or its
Quarterly Reports on Form 10-Q for the quarterly periods ended June 30, 1997 and
September 30, 1997 furnished to the Lenders pursuant to Section 4.02 prior to
the date hereof, may have a Material Adverse Effect.
(b) Neither the Parent Guarantor nor any of the Subsidiaries is in
violation of any law, rule, or regulation, or in default with respect to any
judgment, writ, injunction or decree of any Governmental Authority, where such
violation or default could reasonably be anticipated to result in a Material
Adverse Effect.
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SECTION 4.07. Agreements. (a) Neither the Parent Guarantor nor any of
----------
the Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted, or could reasonably be anticipated to
result, in a Material Adverse Effect.
(b) Neither the Parent Guarantor nor any of the Subsidiaries is in
default in any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could reasonably be anticipated
to result in a Material Adverse Effect.
SECTION 4.08. Federal Reserve Regulations. No part of the proceeds of
---------------------------
the Advances will be used, whether directly or indirectly, and whether
immediately, incidentally, or ultimately, for any purpose which entails a
violation of, or which is inconsistent with, the provisions of the Margin
Regulations.
SECTION 4.09. Investment Company Act; Public Utility Holding Company
------------------------------------------------------
Act. Neither the Parent Guarantor nor any of the Subsidiaries is (a) an
---
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 4.10. Use of Proceeds. The Borrower will use the proceeds of
---------------
the Advances only for the purposes specified in Section 5.05.
SECTION 4.11. Tax Returns. Each of the Parent Guarantor and the
-----------
Subsidiaries has filed or caused to be filed all Federal, state and local tax
returns required to have been filed by it and has paid or caused to be paid all
taxes shown to be due and payable on such returns or on any assessments received
by it, except taxes that are being contested in good faith by appropriate
proceedings and for which the Parent Guarantor shall have set aside on its books
adequate reserves.
SECTION 4.12. No Material Misstatements. No statement, information,
-------------------------
report, financial statement, exhibit, or schedule furnished by or on behalf of
the Parent Guarantor to the Administrative Agent, the Co-Administrative Agent or
any Lender in connection with the syndication or negotiation of this Agreement
or included herein or delivered pursuant hereto contained, contains, or will
contain any material misstatement of fact or intentionally omitted, omits, or
will omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were, are, or will be made,
not misleading.
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SECTION 4.13. Employee Benefit Plans. (a) Each Plan is in compliance
----------------------
with ERISA, except for such noncompliance that has not resulted, and could not
reasonably be anticipated to result, in a Material Adverse Effect.
(b) No Plan has an accumulated or waived funding deficiency within the
meaning of Section 412 or Section 418B of the Code, except for any such
deficiency that has not resulted, and could not reasonably be anticipated to
result, in a Material Adverse Effect.
(c) No proceedings have been instituted to terminate any Plan, except
for such proceedings where the termination of a Plan has not resulted, and could
not reasonably be anticipated to result, in a Material Adverse Effect.
(d) Neither the Parent Guarantor nor any Subsidiary or ERISA Affiliate
has incurred any liability to or on account of a Plan under ERISA (other than
obligations to make contributions in accordance with such Plan), and no
condition exists which presents a material risk to the Parent Guarantor or any
Subsidiary of incurring such a liability, except for such liabilities that have
not resulted, and could not reasonably be anticipated to result, in a Material
Adverse Effect.
SECTION 4.14. Insurance. Each of the Parent Guarantor and the
---------
Principal Subsidiaries maintains insurance with financially sound and reputable
insurers, or self-insurance, with respect to its properties and business against
loss or damage of the kind customarily insured against by reputable companies in
the same or similar business and of such types and in such amounts (with such
deductible amounts) as is customary for such companies under similar
circumstances.
ARTICLE V
AFFIRMATIVE COVENANTS
The Parent Guarantor covenants and agrees with the Administrative Agent and
each Lender that, so long as this Agreement shall remain in effect or the
principal of or interest on any Advance (or any portion thereof), or any other
expenses or amounts payable hereunder, shall be unpaid, the Parent Guarantor
will:
SECTION 5.01. Existence, Businesses and Properties. (a) Preserve and
------------------------------------
maintain, cause each of the Principal Subsidiaries to preserve and maintain, and
cause each other Subsidiary to preserve and maintain (where the failure by any
such other Subsidiary to so preserve and maintain would likely result in a
Material Adverse Effect), its corporate existence, rights and franchises,
provided, however, that the corporate existence of
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any Principal Subsidiary (other than the Borrower) may be terminated if such
termination is not disadvantageous to the Administrative Agent or any Lender;
(b) continue to own all of the outstanding shares of common stock of
each Principal Subsidiary other than the Borrower, and continue to own
outstanding shares of common stock of the Borrower carrying voting power
sufficient to elect a majority of the Board of Directors of the Borrower and
representing at least 51% of the economic interests in the Borrower;
(c) comply, and cause each of the Subsidiaries to comply, in all
material respects, with all applicable laws, rules, regulations and orders;
(d) pay, and cause each of the Subsidiaries to pay, before any such
amounts become delinquent, (i) all taxes, assessments and governmental charges
imposed upon it or upon its property, and (ii) all claims (including, without
limitation, claims for labor, materials, supplies, or services) which might, if
unpaid, become a Lien upon its property, unless, in each case, the validity or
amount thereof is being disputed in good faith, and the Parent Guarantor has
maintained adequate reserves with respect thereto;
(e) keep, and cause each of the Subsidiaries to keep, proper books of
record and account, containing complete and accurate entries of all financial
and business transactions of the Parent Guarantor and such Subsidiary;
(f) continue to carry on, and cause each Principal Subsidiary to
continue to carry on, substantially the same type of business as the Parent
Guarantor or such Principal Subsidiary conducted as of the date hereof and
business reasonably related thereto; and
(g) maintain or cause to be maintained insurance with financially sound
and reputable insurers, or self-insurance, with respect to its properties and
business and the properties and business of the Subsidiaries against loss or
damage of the kinds customarily insured against by reputable companies in the
same or similar businesses, such insurance to be of such types and in such
amounts (with such deductible amounts) as is customary for such companies under
similar circumstances;
provided, however, that the foregoing shall not limit the right of the Parent
Guarantor or any of its Subsidiaries to engage in any transaction not otherwise
prohibited by Section 6.02, 6.03 or 6.04.
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SECTION 5.02. Financial Statements, Reports, etc. In the case of the
-----------------------------------
Parent Guarantor, furnish to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 110 days after the
end of each fiscal year, consolidated balance sheets and the related
statements of income and cash flows of the Parent Guarantor and its
Subsidiaries (the Parent Guarantor and its Subsidiaries being collectively
referred to as the "Companies") as of the close of such fiscal year (which
---------
requirement shall be deemed satisfied by the delivery of the Parent
Guarantor's Annual Report on Form 10-K (or any successor form) for such
year), all audited by KPMG Peat Marwick or other independent public
accountants of recognized national standing and accompanied by an opinion
of such accountants to the effect that such consolidated financial
statements fairly present in all material respects the financial condition
and results of operations of the Companies an a consolidated basis in
accordance with GAAP consistently applied;
(b) within 65 days after the end of each of the first three fiscal
quarters of each fiscal year, consolidated balance sheets and related
statements of income and cash flows of the Companies as of the close of
such fiscal quarter and the then elapsed portion of the fiscal year (which
requirement shall be deemed satisfied by the delivery of the Parent
Guarantor's Quarterly Report on Form 10-Q (or any successor form) for such
quarter), each certified by a Financial officer as fairly presenting the
financial condition and results of operations of the Companies on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments;
(c) promptly upon the mailing or filing thereof copies of all
financial statements, reports and proxy statements mailed to the Parent
Guarantor's public shareholders, and copies of all registration statements
(other than those on Form S-8) and Form 8-K's (to the extent that such Form
8-K's disclose actual or potential adverse developments with respect to the
Parent Guarantor or any of its Subsidiaries that constitute, or could
reasonably be anticipated to constitute, a Material Adverse Effect) filed
with the Securities and Exchange Commission (or any successor thereto) or
any national securities exchange;
(d) prompt notice of any reduction in the credit rating given to the
Parent Guarantor by any Rating Agency;
(e) promptly after (i) the occurrence thereof, notice of any ERISA
Termination Event or "prohibited transaction",
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as such term is defined in Section 4975 of the Code, with respect to any
Plan that results, or could reasonably be anticipated to result, in a
Material Adverse Effect, which notice shall specify the nature thereof and
the Parent Guarantor's proposed response thereto, and (ii) actual knowledge
thereof copies of any notice of PBGC's intention to terminate or to have a
trustee appointed to administer any Plan; and
(f) promptly, from time to time, such other information, regarding
its operations, business affairs and financial condition, or compliance
with the terms of this Agreement, as the Administrative Agent or any Lender
may reasonably request.
SECTION 5.03. Litigation and other Notices. Furnish to the
----------------------------
Administrative Agent and each Lender prompt written notice of the following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) proposed to be taken with
respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any governmental
authority, against the Parent Guarantor or any of the Subsidiaries which is
reasonably likely to be adversely determined and which, if adversely
determined, could reasonably be anticipated to result in a Material Adverse
Effect; and
(c) any development with respect to the Parent Guarantor or any
Subsidiary that has resulted in, or could reasonably be anticipated to
result in, a Material Adverse Effect.
SECTION 5.04. Maintaining Records. Maintain all financial records in
-------------------
accordance with GAAP and, upon reasonable notice, permit any Lender to visit and
inspect the financial records of the Parent Guarantor at reasonable times and as
often as requested and to make extracts from and copies of such financial
records, and permit any representatives designated by any Lender to discuss the
affairs, finances and condition of the Parent Guarantor with the appropriate
officers thereof and, with the Parent Guarantor's consent (which shall not be
unreasonably withheld), the independent accountants therefor; provided, however,
that if the Parent Guarantor shall so require, a single representative shall be
appointed by the Majority Lenders to exercise the rights granted under this
Section 5.04.
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SECTION 5.05. Use of Proceeds. Use the proceeds of the Advances only
---------------
for the purposes set forth in the preamble of this Agreement; provided, however,
that no such proceeds shall be used directly or indirectly in connection with
(i) the acquisition of in excess of 5% of any class of equity security that is
registered pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), (ii) any transaction subject to the requirements
of Section 13 of the Exchange Act or (iii) any transaction subject to the
requirements of Section 14 of the Exchange Act with respect to which proxies,
consents or authorizations, as the case may be, are being sought by any person
(as defined in the Exchange Act) other than the majority of the board of
directors of the issuer of the securities in respect of which such proxies,
consents or authorizations are being sought.
ARTICLE VI
NEGATIVE COVENANTS
The Parent Guarantor covenants and agrees with each Lender and the
Administrative Agent that, so long as this Agreement shall remain in effect or
the principal of or interest on any Advance (or any portion thereof), or any
other expenses or amounts payable hereunder, shall be unpaid, it will not:
SECTION 6.01. Liens. Create, incur, assume, or suffer to exist, or
-----
permit any of the Principal Subsidiaries to create, incur, assume, or suffer to
exist, any Lien on any of its property now owned or hereafter acquired to secure
any Indebtedness of the Parent Guarantor or any such Principal Subsidiary, other
than (a) Liens incurred or deposits made in the ordinary course of business to
secure surety and appeal bonds, leases, return-of-money bonds and other similar
obligations (exclusive of obligations of the payment of borrowed money); (b)
Liens created under or in connection with the First Mortgage Bond Indentures or
any other indentures governing the issuance of mortgage bonds by the Parent
Guarantor; (c) pledges or deposits to secure the utility obligations of the
Parent Guarantor incurred in the ordinary course of business; (d) Liens upon or
in property now owned or hereafter acquired to secure Indebtedness incurred
solely for the purpose of financing the acquisition, construction or improvement
of any property, provided that such Indebtedness shall not exceed the fair
market value of the property being acquired, constructed or improved; (e) Liens
on the assets of any Principal Subsidiary to secure the repayment of project
financing for such Principal Subsidiary; (f) Liens on the assets of any Person
merged or consolidated with or into (in accordance with Section 6.04) the Parent
Guarantor or any Principal Subsidiary that were in effect at the time of such
merger or consolidation; and (g) Liens securing Indebtedness of
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the Parent Guarantor or of any Principal Subsidiary to the U.S. Rural
Electrification Administration (or any successor agency) or to the U.S. Rural
Telephone Bank (or any successor agency); provided, however, that the Parent
Guarantor or any Principal Subsidiary may create, incur, assume or suffer to
exist other Liens (in addition to Liens excepted by the foregoing clauses (a)
through (g)) on its assets so long as the assets subject to such Liens do not
represent in the aggregate more than 30% of the Parent Guarantor's Consolidated
Tangible Assets.
SECTION 6.02. Ownership of the Principal Subsidiaries. Sell, assign,
---------------------------------------
pledge, or otherwise transfer or dispose of any shares of common stock, voting
stock, or stock convertible into voting or common stock of any Principal
Subsidiary except to another Subsidiary or (in the case of stock of the
Borrower) if such transaction would not result in a violation of Section
5.01(b).
SECTION 6.03. Asset Sales. Permit any Principal Subsidiary to sell,
-----------
assign, or otherwise dispose of assets (whether in one transaction or a series
of transactions), if after giving effect to such transaction, (a) such Principal
Subsidiary (if not the Borrower) will have disposed of, in the aggregate, assets
representing more than 25% of such Principal Subsidiary's aggregate Consolidated
Tangible Assets as of the date upon which such Principal Subsidiary first became
a Principal Subsidiary or (b) such Principal Subsidiary (if the Borrower) will
have disposed of, in the aggregate, assets representing more than 25% of such
Principal Subsidiary's aggregate Consolidated Tangible Assets as of the date of
such transaction; provided that any Principal Subsidiary may transfer assets
representing up to 100% of such Principal Subsidiary's Consolidated Tangible
Assets to any other Subsidiary or to the Parent Guarantor.
SECTION 6.04. Mergers. Merge or consolidate with, or sell, assign,
-------
lease, or otherwise dispose of (whether in one transaction or a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to any person, or permit any Principal Subsidiary to do so,
except that (a) any Subsidiary (other than the Borrower) may merge into or,
subject to Section 6.03, transfer assets to the Parent Guarantor or any other
Subsidiary and the Parent Guarantor may merge with any person and (b) the
Borrower may, subject to Section 5.01(b), merge with another Person if,
immediately thereafter and after giving effect thereto, no event shall occur or
be continuing which constitutes an Event of Default or a Default; provided that,
immediately thereafter and after giving effect thereto, no event shall occur or
be continuing which constitutes an Event of Default or a Default and, in the
case of any such merger to which the Parent Guarantor is a party, either the
Parent Guarantor is
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the surviving corporation or the surviving entity (if not the Parent Guarantor)
has a consolidated net worth (as determined in accordance with GAAP) immediately
subsequent to such merger at least equal to the Consolidated Net Worth of the
Parent Guarantor immediately prior to such merger and expressly assumes the
obligations of the Parent Guarantor under the Loan Documents; providing,
however, that notwithstanding the foregoing, the Parent Guarantor and any of the
Principal Subsidiaries may sell assets in the ordinary course of its business
and may sell or otherwise dispose of worn out or obsolete equipment on a basis
consistent with good business practices.
SECTION 6.05. Restrictions on Dividends. Enter into or permit any
-------------------------
Principal Subsidiary to enter into, any contract or agreement (other than with a
governmental regulatory authority having jurisdiction over the Parent Guarantor
or such Principal Subsidiary) restricting the ability of such Principal
Subsidiary to pay dividends or make distributions to the Parent Guarantor in any
manner that would impair the ability of any Obligor to meet its present and
future obligations hereunder or under any Note. The Secretary of the Parent
Guarantor or another officer of the Parent Guarantor satisfactory to the
Administrative Agent shall, prior to entry into any contract or agreement that
could restrict the ability of any Principal Subsidiary to pay dividends or make
distributions to the Parent Guarantor, deliver to the Lenders a certificate
certifying (a) to the absence of any Event of Default or Default after giving
effect to the entry by such Principal Subsidiary into such contract or
agreement, and (b) that such contract or agreement will not impair the ability
of the Parent Guarantor to meet its present and future obligations hereunder or
under any Note.
SECTION 6.06. Transactions with Affiliates. Sell or transfer any
----------------------------
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates, except
that as long as no Default or Event of Default shall have occurred and be
continuing, the Parent Guarantor or any Subsidiary may engage in any of the
foregoing transactions in the ordinary course of business at prices and on terms
and conditions not less favorable to the Parent Guarantor or such Subsidiary
that could be obtained on an arm's-length basis from unrelated third parties or
as otherwise may be required by any Federal or state Governmental Authority.
SECTION 6.07. Minimum Consolidated Net Worth. Permit its Consolidated
------------------------------
Net Worth at any time to be less than $1,000,000,000.
SECTION 6.08. Combined Shareholders' Equity of Subsidiary Guarantors.
------------------------------------------------------
Permit the combined shareholders' equity
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of the Subsidiary Guarantors to be less than 150% of the aggregate principal
amount of the Advances outstanding at any time prior to the Approval Date.
ARTICLE VII
EVENTS OF DEFAULT
In case of the happening of any of the following events ("Events of
---------
Default"):
(a) any representation or warranty made or deemed made in or in
connection with this Agreement or the Borrowings hereunder, or any
representation, warranty, statement, or information contained in any
written report, certificate, financial statement, or other instrument
furnished in connection with or pursuant to this Agreement, shall prove to
have been false or misleading in any material respect when so made, deemed
made, or furnished;
(b) default shall be made in the payment of any principal of any Advance
(or any portion thereof) when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed or for prepayment
thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Advance
(or any portion thereof) or any Fee or any other amount (other than an
amount referred to in (b) above) due under any Loan Document, when and as
the same shall become due and payable, and such default shall continue
unremedied for a period of five Business Days;
(d) default shall be made in the due observance or performance of any
covenant, condition, or agreement contained in Section 5.01(f) or Section
5.05 or in Article VI;
(e) default shall be made in the due observance or performance of any
covenant, condition, or agreement contained herein (other than those
specified in (b), (c), or (d) above) and such default shall continue
unremedied for a period of 30 days after the earlier to occur of (i) the
Parent Guarantor obtaining knowledge thereof and (ii) the date that written
notice thereof shall have been given to the Parent Guarantor by the
Administrative Agent or any Lender;
(f) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of the Parent
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Guarantor or any Principal Subsidiary, or of a substantial part of the
property or assets of the Parent Guarantor or a Principal Subsidiary, under
Title 11 of the United States Code, as now constituted or hereafter
amended, or any other Federal or state bankruptcy, insolvency,
receivership, or similar law, (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator, or similar official for the Parent
Guarantor or any Principal Subsidiary or for a substantial part of the
property or assets of the Parent Guarantor or a Principal Subsidiary, or
(iii) the winding-up or liquidation of the Parent Guarantor or any
Principal Subsidiary; and such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of
the foregoing shall be entered;
(g) the Parent Guarantor or any Principal Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking relief
under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other Federal or state bankruptcy, insolvency,
receivership, or similar law, (ii) consent to the institution of, or fail
to contest in a timely and appropriate manner, any proceeding or the filing
of any petition described in (f) above, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator,
or similar official for the Parent Guarantor or any Principal Subsidiary or
for a substantial part of the property or assets of the Parent Guarantor or
any Principal Subsidiary, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make
a general assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability, or fail generally to pay its debts as they
become due, or (vii) take any action for the purpose of effecting any of
the foregoing;
(h) the Parent Guarantor or any Principal Subsidiary, as the case may
be, fails to pay when due, or within any grace period applicable thereto by
the terms thereof any other Indebtedness of the Parent Guarantor or any
Principal Subsidiary aggregating $50,000,000 or more;
(i) the Parent Guarantor or any Principal Subsidiary shall fail to
observe or perform any covenant or agreement contained in any single
agreement or instrument relating to any Indebtedness in excess of (i)
$75,000,000 in the aggregate, with respect to any Indebtedness issued on a
tax-exempt basis, and (ii) $50,000,000 in the aggregate, with respect to
all other Indebtedness, in each case within any applicable grace period, or
any other event shall occur if the effect of such failure or other event is
to accelerate, or to permit the holder of such Indebtedness or any other
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person to accelerate, the maturity of such Indebtedness; or any such
Indebtedness shall be required to be prepaid (other than by a regularly
scheduled required prepayment or the exercise by the Parent Guarantor or
such Principal Subsidiary of its right to make a voluntary prepayment) in
whole or in part prior to its stated maturity;
(j) a judgment or order for the payment of money in excess of
$50,000,000 and having a Material Adverse Effect shall be rendered against
the Parent Guarantor or any of the Subsidiaries and such judgment or order
shall continue unsatisfied (in the case of a money judgment) and in effect
for a period of 30 days during which execution shall not be effectively
stayed or deferred (whether by action of a court, by agreement, or
otherwise);
(k) a Plan shall fail to maintain the minimum funding standard required
by Section 412(d) of the Code for any plan year or a waiver of such
standard is sought or granted under Section 412(d), or a Plan is or shall
have been terminated or the subject of termination proceedings under ERISA,
or the Parent Guarantor or an ERISA Affiliate has incurred a liability to
or on account of a Plan under Section 4062, 4063, 4064, 4201 or 4204 of
ERISA, and there shall result from any such event or events a Material
Adverse Effect;
(l) there shall have occurred a Change in Control;
(m) the Approval Date shall not have occurred on or before the 90th day
after the date hereof; or
(n) before the Approval Date, the obligations of any Subsidiary
Guarantor under Article X shall be, or shall be asserted by any Obligor to
be, invalid; or on or after the Approval Date, the obligations of the
Parent Guarantor under Article X shall be, or shall be asserted by any
Obligor to be, invalid;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (f) or (g) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Majority Lenders, shall by notice to the Parent Guarantor, take either or both
of the following actions, at the same or different times: (i) terminate
forthwith the Commitments and (ii) declare the Advances then outstanding to be
forthwith due and payable in whole or in part, whereupon the principal of the
Advances so declared to be due and payable, together with accrued interest
thereon and any unpaid accrued Fees and all other liabilities of the Parent
Guarantor accrued hereunder and under any other Loan Document, shall become
forthwith due and payable, without presentment,
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demand, protest, or any other notice of any kind, all of which are hereby
expressly waived by the Parent Guarantor, anything contained herein or in any
other Loan Document to the contrary notwithstanding; and in any event with
respect to the Parent Guarantor described in paragraph (f) or (g) above, the
Commitments shall automatically terminate and the principal of the Advances then
outstanding, together with accrued interest thereon and any unpaid accrued Fees
and all other liabilities of the Parent Guarantor accrued hereunder and under
any other Loan Document, shall automatically become due and payable, without
presentment, demand, protest, or any other notice of any kind, all of which are
hereby expressly waived by the Parent Guarantor, anything contained herein or in
any other Loan Document to the contrary notwithstanding.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01. Authorization and Action. Each Lender hereby appoints
------------------------
and authorizes the Administrative Agent to take such action as administrative
agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. As to any matters not expressly
provided for by this Agreement (including, without limitation, enforcement or
collection of the Notes), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Majority Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that the Administrative Agent shall not be required to take
-------- -------
any action which exposes the Administrative Agent to personal liability or which
is contrary to this Agreement or applicable law. The Administrative Agent
agrees to give to each Lender prompt notice of each notice given to it by any
Obligor pursuant to the terms of this Agreement.
SECTION 8.02. Administrative Agent's Reliance, Etc. Neither the
-------------------------------------
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own negligence or
willful misconduct. Without limitation of the generality of the foregoing, the
Administrative Agent: (i) may treat the payee of any Note as the holder thereof
until the Administrative Agent receives and accepts an Assignment and Acceptance
entered into by the Lender which is the payee of such Note, as assignor, and an
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Eligible Assignee, as assignee, as provided in Section 9.07; (ii) may consult
with legal counsel (including counsel for the any Obligor), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations (whether written or oral) made in or
in connection with this Agreement; (iv) shall not have any duty to ascertain or
to inquire as to the performance or observance of any of the terms, covenants or
conditions of this Agreement on the part of the Borrower or to inspect the
property (including the books and records) of the Borrower or any of its
Subsidiaries; (v) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of this Agreement by acting
upon any notice, consent, certificate or other instrument or writing (which may
be by telecopier, telegram, cable or telex) believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 8.03. Citibank and Affiliates. With respect to its Commitment,
-----------------------
the Advances made by it and the Notes issued to it, Citibank shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not the Administrative Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, and generally engage in any kind
of business with, the Borrower, any of its Subsidiaries and any person who may
do business with or own securities of the Borrower or any such Subsidiary, all
as if Citibank were not the Administrative Agent and without any duty to account
therefor to the Lenders.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges that it
----------------------
has, independently and without reliance upon the Administrative Agent or any
other Lender and based on the financial statements referred to in Section 4.01
and such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
Credit Agreement
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SECTION 8.05. Indemnification. The Lenders agree to indemnify the
---------------
Administrative Agent (to the extent not reimbursed by the Borrower), ratably
according to the respective principal amounts of the Notes then held by them (or
if no Notes are at the time outstanding, ratably according to the respective
amounts of their Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or any action taken or omitted by
the Administrative Agent under this Agreement, provided that no Lender shall be
--------
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent's gross negligence or willful misconduct. Without
limiting the foregoing, each Lender agrees to reimburse the Administrative Agent
promptly upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by the Administrative Agent in connection with
the preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
to the extent that the Administrative Agent is not reimbursed for such expenses
by the Borrower.
SECTION 8.06. Successor Administrative Agent. The Administrative Agent
------------------------------
may resign at any time by giving written notice thereof to the Lenders and the
Borrower and may be removed at any time with or without cause by the Majority
Lenders. Upon any such resignation or removal, the Majority Lenders shall have
the right to appoint a successor Administrative Agent that, unless a Default or
Event of Default shall have occurred and then be continuing, is reasonably
acceptable to the Borrower. If no successor Administrative Agent shall have
been so appointed by the Majority Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's giving of
notice of resignation or the Majority Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, which shall be a
commercial bank organized under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at least
$50,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring
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Administrative Agent's resignation or removal hereunder as Administrative Agent,
the provisions of this Article VIII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision
----------------
of this Agreement or the A Notes, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Majority Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
-------- -------
writing and signed by all the Lenders (other than the Designated Bidders), do
any of the following: (a) waive any of the conditions specified in Section
3.01, (b) increase the Commitments of such Lenders or subject such Lenders to
any additional obligations, (c) reduce the principal of, or interest on, the A
Notes or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the A Notes or any fees
or other amounts payable hereunder, (e) change the percentage of the Commitments
or of the aggregate unpaid principal amount of the A Notes, or the number of
Lenders, which shall be required for the Lenders or any of them to take any
action hereunder or (f) amend this Section 9.01; provided further that no
-------- -------
amendment, waiver or consent shall, unless in writing and signed by each Lender
holding a B Note at such time, (1) reduce the principal of, or interest on, such
B Note or any fees or other amounts payable hereunder or thereunder with respect
thereto, (2) postpone any date fixed for any payment of principal of, or
interest on, such B Note or any fees or other amounts payable hereunder or
thereunder with respect thereto, or (3) subject such Lender to any additional
obligations; and provided further that no amendment, waiver or consent shall,
-------- -------
unless in writing and signed by the Administrative Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any Note. This Agreement and the
Notes constitute the entire agreement of the parties with respect to the subject
matter hereof and thereof.
SECTION 9.02. Notices, Etc. All notices and other communications
-------------
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed, telexed,
cabled or
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delivered, if to any Obligor, at ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President and Treasurer
of the Parent Guarantor, telephone no. (▇▇▇) ▇▇▇-▇▇▇▇, telecopier number (203)
614-4625; if to any Lender (other than a Designated Bidder), at the Domestic
Lending Office specified in the Administrative Questionnaire of such Lender or
in the Assignment and Acceptance pursuant to which it became a Lender; if to any
Designated Bidder, at the Domestic Lending Office specified in the Designation
Agreement pursuant to which it became a Lender; and if to the Administrative
Agent, Citibank, N.A., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, Zone 7, Long Island City, New
York 11120, Attention: ▇▇▇ ▇▇▇▇▇, telephone no. (▇▇▇) ▇▇▇-▇▇▇▇, telecopier no.
(▇▇▇) ▇▇▇-▇▇▇▇; or, as to the Borrower or the Administrative Agent, at such
other address as shall be designated by such party in a written notice to the
other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telecopied, telegraphed, telexed or cabled, be effective when deposited in the
mails, telecopied, delivered to the telegraph company, confirmed by telex
answerback or delivered to the cable company, respectively, except that notices
and communications to the Administrative Agent pursuant to Article II or VII
shall not be effective until received by the Administrative Agent.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
-------------------
Lender or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs, Expenses and Indemnification.
-----------------------------------
(a) The Borrower agrees to pay and reimburse within 30 days after
demand all costs and expenses of the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes and the other documents to be delivered hereunder,
includ ing, without limitation, the reasonable fees and out-of-pocket expenses
of counsel for the Administrative Agent with respect thereto and with respect to
advising the Administrative Agent as to its rights and responsibilities under
this Agreement. The Borrower further agrees to pay on demand all costs and
expenses, if any (including, without limitation, reasonable counsel fees and
expenses of the Administrative Agent and each of the Lenders), incurred by the
Administrative Agent or any Lender in connection with the enforcement (whether
through negotiations,
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legal proceedings or otherwise) of this Agreement, the Notes and the other
documents to be delivered hereunder, including, without limitation, reasonable
counsel fees and expenses in connection with the enforcement of rights under
this Section 9.04(a).
(b) The Borrower hereby indemnifies the Administrative Agent, Citicorp
Securities, Inc., each Lender and each of respective their Affiliates and their
respective officers, directors, employees, agents, advisors and representatives
(each, an "Indemnified Party") from and against any and all claims, damages,
-----------------
losses, liabilities and expenses (including, without limitation, fees and
disbursements of counsel), joint or several, that may be incurred by or asserted
or awarded against any Indemnified Party, in each case arising out of or in
connection with or relating to any investigation, litigation or proceeding or
the preparation of any defense with respect thereto arising out of or in
connection with or relating to this Agreement, the Notes or the transactions
contemplated hereby or thereby or any use made or proposed to be made with the
proceeds of the Advances, whether or not such investigation, litigation or
proceeding is brought by the Borrower, any of its shareholders or creditors, an
Indemnified Party or any other person, or an Indemnified Party is otherwise a
party thereto, and whether or not any of the conditions precedent set forth in
Article III are satisfied or the other transactions contemplated by this
Agreement are consummated, except to the extent such claim, damage, loss,
liability or expense results from such Indemnified Party's negligence or willful
misconduct, or from a violation by such Indemnified Party of any law, order,
regulation or agreement to which such Indemnified Party or its properties is
subject, or from a breach of this Agreement.
The Borrower hereby further agrees that no Indemnified Party shall have
any liability (whether direct or indirect, in contract, tort or otherwise) to
the Borrower for or in connection with or relating to this Agreement, the Notes
or the transactions contemplated hereby or thereby or any use made or proposed
to be made with the proceeds of the Advances, except to the extent such
liability is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's negligence or
willful misconduct; provided that nothing in this paragraph shall be deemed to
--------
constitute a waiver of any claim the Borrower may have, or to exculpate any
person from any liability that such person may have to the Borrower, for breach
by such person of its obligations under this Agreement.
(c) If any payment of principal of, or Conversion or Continuation of,
any Eurodollar Rate Advance is made other than on the last day of an Interest
Period for such Advance, as a result of acceleration of the maturity of the
Notes pursuant to Article VII or for any other reason (other than a payment or
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Conversion pursuant to Section 2.13), the Borrower shall pay (subject to the
last sentence of this Section 9.04(c)) to the Administrative Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses which it may reasonably incur as a result
of such payment, Continuation or Conversion, including, without limitation, any
loss (excluding loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance. The Borrower shall pay amounts owing
to any Lender pursuant to this Section 9.04(c) within 30 days after receipt from
such Lender of a certificate setting forth in reasonable detail the calculation
of the amount such Lender is entitled to claim under this Section 9.04(c) (which
certificate shall be conclusive and binding for all purposes, absent manifest
error).
SECTION 9.05. Right of Set-off. Upon (i) the occurrence and during the
----------------
continuance of any Event of Default under Article VII or (ii) the making of the
request or the granting of the consent specified by Article VII to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Article VII, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender or such Affiliate to or for the credit or the account
of the Borrower (all such deposits and other indebtedness being herein called
"Obligations") against any and all of the obligations of the Borrower now or
------------
hereafter existing under this Agreement and any Note held by such Lender,
whether or not such Lender shall have made any demand under this Agreement or
such Note and although the Obligations may be unmatured. Each Lender agrees
promptly to notify the Borrower after any such set-off and application made by
such Lender or such Affiliate, provided that the failure to give such notice
--------
shall not affect the validity of such set-off and application. The rights of
each Lender and its Affiliate under this Section are in addition to other rights
and remedies (including, without limitation, other rights of set-off) which such
Lender or such Affiliate may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective
--------------
when it shall have been executed by the Borrower and the Administrative Agent
and when the Administrative Agent shall have been notified by each Bank that
such Bank has executed it and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Administrative Agent and each Lender and their
respective successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of the Lenders.
Credit Agreement
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SECTION 9.07. Assignments, Designations and Participations.
--------------------------------------------
(a) Each Lender (other than a Designated Bidder) may, with notice to
and the consent of the Administrative Agent and the Borrower, such consents not
to be unreasonably withheld (but not otherwise), assign to one or more banks or
other entities all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Advances owing to it and the Note or Notes held by it); provided, however,
-------- -------
that (i) no such consent by the Borrower or the Administrative Agent shall be
required in the case of any assignment to an Affiliate of the assigning Lender,
(ii) each such assignment shall be of a constant, and not a varying, percentage
of all rights and obligations of the assigning Lender under this Agreement
(other than any right to make B Advances, B Advances owing to it or B Notes),
(iii) the amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
$10,000,000 and shall be an integral multiple of $1,000,000 unless the Borrower
and the Administrative Agent otherwise agree, (iv) each such assignment shall be
to an Eligible Assignee, (v) the parties to each such assignment shall execute
and deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note or Notes subject
to such assignment, and (vi) the parties to each such assignment (other than
the Borrower) shall deliver to the Administrative Agent a processing and
recordation fee of $3,000. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in
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or in connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as administrative agent on its behalf
and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Administrative
Agent shall, if such Assignment and Acceptance has been completed (and the
Borrower and the Administrative Agent shall have consented to the relevant
assignment to the extent required pursuant to Section 9.07(a)) and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered
Note or Notes (X) a new A Note to the order of such Eligible Assignee in an
amount equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Commitment hereunder, a
new A Note to the order of the assigning Lender in an amount equal to the
Commitment retained by it hereunder and (Y) new B Note or Notes to the order of
such Eligible Assignee in an amount equal to the principal amount of the B
Advances (if any) acquired by it pursuant to such Assignment and Acceptance
Credit Agreement
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and, if the assigning Lender has retained a portion of such B Advances, new B
Note or Notes to the order of the assigning Lender in an amount equal to the
principal amount of the B Advances retained by it hereunder). Such new A Note
or Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered A Note or Notes, and such new B Note or
Notes shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered B Note or Notes. All such Notes shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1 or A-2 hereto, as applicable.
(d) Each Lender (other than the Designated Bidders) may designate one
or more banks or other entities to have a right to make B Advances as a Lender
pursuant to Section 2.03; provided, however, that (i) no such Lender shall be
-------- -------
entitled to make more than two such designations, (ii) each such Lender making
one or more of such designations shall retain the right to make B Advances as a
Lender pursuant to Section 2.03, (iii) each such designation shall be to a
Designated Bidder and (iv) the parties to each such designation shall execute
and deliver to the Administrative Agent, for its acceptance and recording in the
Register, a Designation Agreement. Upon such execution, delivery, acceptance
and recording, from and after the effective date specified in each Designation
Agreement, the designee thereunder shall be a party hereto with a right to make
B Advances as a Lender pursuant to Section 2.03 and the obligations related
thereto.
(e) By executing and delivering a Designation Agreement, the Lender
making the designation thereunder and its designee thereunder confirm and agree
with each other and the other parties hereto as follows: (i) such Lender makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such designee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into the
Designation Agreement; (iv) such designee will, independently and without
reliance upon the Administrative Agent, such designating Lender
Credit Agreement
----------------
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or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such designee confirms that it is a
Designated Bidder; (vi) such designee appoints and authorizes the Administrative
Agent to take such action as administrative agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto; and (vii) such designee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(f) Upon its receipt of a Designation Agreement executed by a
designating Lender and a designee representing that it is a Designated Bidder,
the Administrative Agent shall, if such Designation Agreement has been completed
and is substantially in the form of Exhibit D hereto, (i) accept such
Designation Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(g) The Administrative Agent shall maintain at its address referred to
in Section 9.02 a copy of each Assignment and Acceptance and each Designation
Agreement delivered to and accepted by it and a register for the recordation of
the names and addresses of each of the Lenders and, with respect to Lenders
other than Designated Bidders, the Commitment of, and principal amount of the A
Advances owing to, each such Lender from time to time (the "Register"). The
--------
entries in the Register shall be conclusive and binding for the 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 the purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(h) Each Lender may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Advances owing to it and the Note or Notes held by it); provided, however,
-------- -------
that (i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall remain the holder
of any such Note for all purposes of this Agreement, (iv) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this
Credit Agreement
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Agreement, and (v) no participant under any such participation agreement shall
have any right to approve any amendment or waiver of any provision of this
Agreement or any Note, or to consent to any departure by the Borrower therefrom,
except to the extent that any such amendment, waiver or consent would (x) reduce
the principal of, or interest on, the Notes or any fee or other amounts payable
hereunder, in each case to the extent the same are subject to such
participation, or (y) postpone any date fixed for the payment of principal of,
or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent the same are subject to such participation.
(i) Any Lender may, in connection with any assignment, designation or
participation or proposed assignment, designation or participation pursuant to
this Section 9.07, disclose to the assignee, designee or participant or proposed
assignee, designee or participant, any information relating to the Borrower or
any of its Subsidiaries furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the assignee, designee or
--------
participant or proposed assignee, designee or participant shall agree to
preserve the confidentiality of any confidential information relating to the
Borrower or any such Subsidiary received by it from such Lender on the terms set
forth in Section 9.14.
(j) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and the Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
(k) All amounts payable by the Borrower to any Lender under Sections
2.08, 2.12, 2.15 and 9.04(c) in respect of Advances held by such Lender, and
such Lender's Commitment, shall be determined as if such Lender had not sold or
agreed to sell any participations in such Advances or Commitment and as if such
Lender were funding each of such Advances and Commitments in the same way that
it is funding the portion of such Advances and Commitment in which no
participations have been sold. No assignee or other transferee of any Lender's
rights shall be entitled to receive any greater payment under Section 2.12 than
such Lender would have been entitled to receive with respect to the rights
transferred, unless such transfer is made (i) with the Borrower's prior written
consent, (ii) by reason of the provisions of said Section 2.12 requiring such
Lender to designate a different Applicable Lending Office as provided in said
Section 2.12 or (iii) at a time when the circumstances giving rise to such
greater payment did not exist.
Credit Agreement
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SECTION 9.08. Governing Law; Submission to Jurisdiction. This
-----------------------------------------
Agreement and the Notes shall be governed by, and construed in accordance with,
the law of the State of New York. The Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York state court sitting in New York City
for the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. The Borrower irrevocably
waives, to the fullest extent permitted by applicable law, any objection that it
may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
SECTION 9.09. Severability. In case any provision in this Agreement or
------------
in any Note shall be held to be invalid, illegal or unenforceable, such
provision shall be severable from the rest of this Agreement or such Note, as
the case may be, and the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 9.10. Execution in Counterparts. This Agreement may be
-------------------------
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
SECTION 9.11. Survival. The obligations of the Borrower under Sections
--------
2.08, 2.12, 2.15 and 9.04, and the obligations of the Lenders under Section
8.05, shall survive the repayment of the Advances and the termination of the
Commitments. In addition, each representation and warranty made, or deemed to
be made by any Notice of A Borrowing or Notice of B Borrowing, herein or
pursuant hereto shall survive the making of such representation and warranty,
and no Lender shall be deemed to have waived, by reason of making any Advance,
any Default or Event of Default that may arise by reason of such representation
or warranty proving to have been false or misleading, notwithstanding that such
Lender or the Administrative Agent may have had notice or knowledge or reason to
believe that such representation or warranty was false or misleading at the time
such extension of credit was made.
SECTION 9.12. Waiver of Jury Trial. EACH OF THE BORROWER, THE
--------------------
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Credit Agreement
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SECTION 9.13. Substitution of Lender. If (a) the obligation of any
----------------------
Lender to make, Continue or otherwise maintain Eurodollar Rate Advances has been
suspended pursuant to Section 2.13, (b) any Lender has demanded compensation
under Section 2.12 or 2.15 or (c) any Lender shall fail to consent to an
amendment or a waiver which pursuant to the terms of Section 9.01 requires the
consent of all Lenders and with respect to which the Majority Lenders shall have
granted their consent, the Borrower shall have the right, if no Default or Event
of Default then exists, to replace such Lender (the "Replaced Lender") with one
---------------
or more Eligible Assignee(s), (each, a "Replacement Lender") acceptable to the
------------------
Administrative Agent, provided that:
--------
(i) at the time of any replacement pursuant to this Section 9.13, the
Replacement Lenders shall enter into one or more Assignment and Acceptance
Agreements, pursuant to which such Replacement Lenders shall acquire the
Commitments and outstanding Advances of the Replaced Lender and, in
connection therewith, shall pay to the Replaced Lender in respect thereof
an amount equal to the sum of (A) an amount equal to the principal of, and
all accrued interest on, all outstanding Advances of the Replaced Lender,
(B) an amount equal to all accrued and unpaid Facility Fees owing to the
Replaced Lender and (C) an amount equal to the amount which would be
payable by the Borrower to the Replaced Lender pursuant to Section 9.04(c)
if the Borrower prepaid at the time of such replacement all of the Advances
of such Replaced Lender outstanding at such time; and
(ii) all obligations of the Borrower owing to the Replaced Lender
(other than those specifically described in clause (i) above in respect of
which the assignment purchase price has been, or is concurrently being,
paid) shall be paid in full to such Replaced Lender concurrently with such
replacement.
Upon (I) the execution of the respective Assignment and Assumption Agreements,
(II) the payment of amounts referred to in clauses (i) and (ii) above and (III)
if so requested by a Replacement Lender, delivery to such Replacement Lender of
the appropriate Note or Notes executed by the Borrower, each Replacement Lender
shall become a Lender hereunder and the Replaced Lender shall cease to
constitute a Lender hereunder.
SECTION 9.14. Confidentiality. Each Lender agrees to hold all non-
---------------
public information obtained pursuant to the provisions of this Agreement in
accordance with its customary procedure for handling confidential information of
this nature and in accordance with safe and sound banking practices, provided
--------
that nothing herein shall prevent any Lender from disclosing such information
(i) to any other Lender or to the Administrative
Credit Agreement
----------------
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Agent (or to Citicorp Securities, Inc.), (ii) upon the order of any court or
administrative agency or otherwise to the extent required by statute, rule,
regulation or judicial process, (iii) to bank examiners or upon the request or
demand of any other regulatory agency or authority, (iv) which had been publicly
disclosed other than as a result of a disclosure by the Administrative Agent or
any Lender prohibited by this Agreement, (v) in connection with any litigation
to which any one or more of the Lenders or the Administrative Agent is a party,
or in connection with the exercise of any remedy hereunder or under any Note,
(vi) to such Lender's or Administrative Agent's legal counsel and independent
auditors and accountants and (vii) subject to provisions substantially similar
to those contained in this Section, to any actual or proposed participant or
assignee.
ARTICLE X
GUARANTEE
SECTION 10.01 The Guarantee. Subject to Section 10.09 hereof, the
-------------
Guarantors hereby jointly and severally guarantee to each Lender and the
Administrative Agent and their respective successors and assigns the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the principal of and interest on the Advances made by the Lenders
to, and the Notes held by each Lender of, the Borrower and all other amounts
from time to time owing to the Lenders or the Administrative Agent by the
Borrower under this Agreement and under the Notes strictly in accordance with
the terms thereof (such obligations being herein collectively called the
"Guaranteed Obligations"). Subject to Section 10.09, the Guarantors hereby
-----------------------
further jointly and severally agree that if the Borrower shall fail to pay in
full when due (whether at stated maturity, by acceleration or otherwise) any of
the Guaranteed Obligations, the Guarantors will promptly pay the same, without
any demand or notice whatsoever, and that in the case of any extension of time
of payment or renewal of any of the Guaranteed Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
SECTION 10.02 Obligations Unconditional. Subject to Section 10.09, the
-------------------------
obligations of the Guarantors under Section 10.01 are absolute and
unconditional, joint and several, irrespective of the value, genuineness,
validity, regularity or enforceability of the obligations of the Borrower under
this Agreement, the Notes or any other agreement or instrument referred to
herein or therein, or any substitution, release or exchange of any other
guarantee of or security for any of the Guaranteed Obligations, and, to the
fullest extent permitted by
Credit Agreement
----------------
- 66 -
applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 10.02 that the obligations of the
Guarantors hereunder shall be absolute and unconditional, joint and several,
under any and all circumstances. Without limiting the generality of the
foregoing, but subject to Section 10.09, it is agreed that the occurrence of any
one or more of the following shall not alter or impair the liability of the
Guarantors hereunder which shall remain absolute and unconditional as described
above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or compliance
shall be waived;
(ii) any of the acts mentioned in any of the provisions of this
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this Agreement
or the Notes or any other agreement or instrument referred to herein or
therein shall be waived or any other guarantee of any of the Guaranteed
Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of, the
Administrative Agent or any Lender or Lenders as security for any of the
Guaranteed Obligations shall fail to be perfected.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Administrative
Agent or any Lender exhaust any right, power or remedy or proceed against the
Borrower under this Agreement or the Notes or any other agreement or instrument
referred to herein or therein, or against any other Person under any other
guarantee of, or security for, any of the Guaranteed Obligations.
SECTION 10.03 Reinstatement. Subject to Section 10.09, the obligations
-------------
of the Guarantors under this Article X shall be automatically reinstated if and
to the extent that for any reason any payment by or on behalf of the Borrower in
respect of the Guaranteed Obligations is rescinded or must be otherwise restored
by any holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or
Credit Agreement
----------------
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otherwise and the Guarantors jointly and severally agree that they will
indemnify the Administrative Agent and each Lender on demand for all reasonable
costs and expenses (including, without limitation, fees of counsel) incurred by
the Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
SECTION 10.04 Subrogation. The Guarantors hereby jointly and severally
-----------
agree that until the payment and satisfaction in full of all Guaranteed
Obligations and the expiration and termination of the Commitments of the Lenders
under this Agreement they shall not exercise any right or remedy arising by
reason of any performance by them of their guarantee in Section 10.01, whether
by subrogation or otherwise, against the Borrower or any other guarantor of any
of the Guaranteed Obligations or any security for any of the Guaranteed
Obligations.
SECTION 10.05 Remedies. Subject to Section 10.09, the Guarantors
--------
jointly and severally agree that, as between the Guarantors and the Lenders, the
obligations of the Borrower under this Agreement and the Notes may be declared
to be forthwith due and payable as provided in Article VII (and shall be deemed
to have become automatically due and payable in the circumstances provided in
said Article VII) for purposes of Section 10.01 notwithstanding any stay,
injunction or other prohibition preventing such declaration (or such obligations
from becoming automatically due and payable) as against the Borrower and that,
in the event of such declaration (or such obligations being deemed to have
become automatically due and payable), such obligations (whether or not due and
payable by the Borrower) shall forthwith become due and payable by the
Guarantors for purposes of said Section 10.01.
SECTION 10.06 Instrument for the Payment of Money. Subject to Section
-----------------------------------
10.09, each Guarantor hereby acknowledges that the guarantee in this Article X
constitutes an instrument for the payment of money, and consents and agrees that
any Lender or the Administrative Agent, at its sole option, in the event of a
dispute by such Guarantor in the payment of any moneys due hereunder, shall have
the right to bring motion-action under New York CPLR Section 3213.
SECTION 10.07 Continuing Guarantee. Subject to Section 10.09, the
--------------------
guarantee in this Article X is a continuing guarantee, and shall apply to all
Guaranteed Obligations whenever arising.
Credit Agreement
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SECTION 10.08 General Limitation on Guarantee Obligations. In any
-------------------------------------------
action or proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Subsidiary Guarantor under
Section 10.01 would otherwise be held or determined to be void, invalid or
unenforceable, or subordinated to the claims of any other creditors, on account
of the amount of its liability under said Section 10.01, then, notwithstanding
any other provision hereof to the contrary, the amount of such liability shall,
without any further action by such Subsidiary Guarantor, any Lender, the
Administrative Agent or any other Person, be automatically limited and reduced
to the highest amount that is valid and enforceable and not subordinated to the
claims of other creditors as determined in such action or proceeding.
SECTION 10.09 Effectiveness of Guarantee. Notwithstanding anything
--------------------------
contained herein to the contrary, the Parent Guarantor shall have no obligations
under this Article X until the Approval Date. On the Approval Date, the
obligations of the Parent Guarantor under this Article X shall become effective
and the obligations of the Subsidiary Guarantors under this Article X shall
terminate.
Credit Agreement
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWER
--------
ELECTRIC LIGHTWAVE, INC.
By __________________________
Title:
PARENT GUARANTOR
----------------
CITIZENS UTILITY COMPANY
By __________________________
Title:
SUBSIDIARY GUARANTORS
---------------------
SOUTHWESTERN INVESTMENTS, INC.
By __________________________
Title:
SOUTHWESTERN CAPITAL CORP.
By __________________________
Title:
CU CAPITALCORP
By __________________________
Title:
Credit Agreement
----------------
- 70 -
ADMINISTRATIVE AGENT
CITIBANK, N.A., as
Administrative Agent
By __________________________
Title: Attorney-in-Fact
Commitment BANKS
---------- -----
$350,000,000 CITIBANK, N.A.
By __________________________
Title: Attorney-in-Fact
Credit Agreement
----------------
EXHIBIT A-1
FORM of A NOTE
U.S.$______________ Dated: _________ __, _____
FOR VALUE RECEIVED, the undersigned, ELECTRIC LIGHTWAVE, INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
--------
_________________ (the "Lender") for the account of its Applicable Lending
------
Office (as defined in the Credit Agreement referred to below) on the Termination
Date (as so defined) the principal sum of U.S.$[amount of the Lender's
Commitment in figures] or, if less, the aggregate principal amount of the A
Advances (as defined below) made by the Lender to the Borrower pursuant to the
Credit Agreement then outstanding.
The Borrower promises to pay interest on the unpaid principal amount of
each A Advance from the date of such A Advance until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Citibank, N.A., as Administrative Agent, at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in same day funds. Each A Advance
made by the Lender to the Borrower pursuant to the Credit Agreement, and all
payments made on account of principal thereof, shall be recorded by the Lender
and, prior to any transfer hereof, endorsed on the grid attached hereto which is
part of this Promissory Note; provided that the failure of the Lender to make
--------
any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This Promissory Note is one of the A Notes referred to in, and is
entitled to the benefits of, the Credit Agreement dated as of November __, 1997
(the "Credit Agreement") among the Borrower, the Guarantors referred to therein,
----------------
the Lender and certain other banks parties thereto, and Citibank, N.A., as
Administrative Agent for the Lender and such other banks. The Credit Agreement,
among other things, (i) provides for the making of advances (the "A Advances")
----------
by the Lender to the Borrower from time to time in an aggregate amount not to
exceed at any time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such A Advance being evidenced
by this Promissory Note, and (ii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified.
Form of A Note
--------------
- 2 -
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Promissory Note shall be governed by, and construed in accordance
with, the law of the State of New York, United States.
ELECTRIC LIGHTWAVE, INC.
By__________________________
Title:
Form of A Note
--------------
- 3 -
ADVANCES AND PAYMENTS OF PRINCIPAL
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Amount of Unpaid of
Amount of Principal Paid Principal Notation
Date Advance or Prepaid Balance Made By
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Form of A Note
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EXHIBIT A-2
FORM OF B NOTE
U.S.$______________ Dated: _________ __, _____
FOR VALUE RECEIVED, the undersigned, ELECTRIC LIGHTWAVE, INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
--------
_________________ (the "Lender") for the account of its Applicable Lending
------
Office (as defined in the Credit Agreement referred to below), on
______________, _____, the principal amount of __________ Dollars
($___________).
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a year of _____
days for the actual number of days elapsed).
Interest Payment Date or Dates: ___________________________
Both principal and interest are payable in lawful money of the United
States of America to ______________ or the account of the Lender at the office
of ________________________________, at _____________________, in same day
funds.
This Promissory Note is one of the B Notes referred to in, and is
entitled to the benefits of, the Credit Agreement dated as of November __, 1997
(the "Credit Agreement") among the Borrower, the Guarantors referred to therein,
----------------
the Lender and certain other banks parties thereto, and Citibank, N.A., as
Administrative Agent for the Lender and such other banks. The Credit Agreement,
among other things, contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
Form of B Note
--------------
- 2 -
This Promissory Note shall be governed by, and construed in accordance
with, the law of the State of New York, United States.
ELECTRIC LIGHTWAVE, INC.
By_________________________
Title:
Form of B Note
--------------
EXHIBIT B-1
NOTICE OF A BORROWING
Citibank, N.A., as Administrative
Agent for the Lenders parties
to the Credit Agreement
referred to below
▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
[Date]
Ladies and Gentlemen:
The undersigned, Electric Lightwave, Inc., refers to the Credit
Agreement, dated as of November __, 1997 (the "Credit Agreement", the terms
----------------
defined therein being used herein as therein defined), among the undersigned,
the Guarantors referred to therein, certain Lenders parties thereto and
Citibank, N.A., as Administrative Agent for said Lenders, and hereby gives you
notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests an A Borrowing under the Credit Agreement, and in
that connection sets forth below the information relating to such A Borrowing
(the "Proposed A Borrowing") as required by Section 2.02(a) of the Credit
--------------------
Agreement:
(i) The Business Day of the Proposed A Borrowing is ___________ __,
_____.
(ii) The Type of A Advances comprising the Proposed A Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed A Borrowing is $___________.
[(iv) The initial Interest Period for each A Advance made as part of
the Proposed A Borrowing is ______ month[s]]/1/.
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed A Borrowing:
--------------------
/1/ For Eurodollar Rate Advances only.
Form of Notice of A Borrowing
-----------------------------
- 2-
(A) the representations and warranties contained in Section 4.01
[(other than Section 4.01(e)(iii))]/2/ are correct, before and after giving
effect to the Proposed A Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from such
Proposed A Borrowing or from the application of the proceeds therefrom,
which constitutes a Default or an Event of Default.
Very truly yours,
ELECTRIC LIGHTWAVE, INC.
By___________________________
Title:
---------------------
/2/ Exclude bracketed text if the proposed A Borrowing is the initial Borrowing
under the Credit Agreement.
Form of Notice of A Borrowing
-----------------------------
EXHIBIT B-2
NOTICE OF B BORROWING
Citibank, N.A., as Administrative
Agent for the Lenders parties
to the Credit Agreement
referred to below
▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
[Date]
Ladies and Gentlemen:
The undersigned, Electric Lightwave, Inc., refers to the Credit
Agreement, dated as of November __, 1997 (the "Credit Agreement", the terms
----------------
defined therein being used herein as therein defined), among the undersigned,
the Guarantors referred to therein, certain Lenders parties thereto and
Citibank, N.A., as Administrative Agent for said Lenders, and hereby gives you
notice pursuant to Section 2.03 of the Credit Agreement that the undersigned
hereby requests a B Borrowing under the Credit Agreement, and in that connection
sets forth the terms on which such B Borrowing (the "Proposed B Borrowing") is
--------------------
requested to be made:
(A) Date of B Borrowing _______________________
(B) Amount of B Borrowing _______________________
(C) Maturity Date _______________________
(D) Interest Rate Basis _______________________
(E) Interest Payment Date(s) _______________________
(F) _______________________ _______________________
(G) _______________________ _______________________
(H) _______________________ _______________________
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed B Borrowing:
(a) the representations and warranties contained in Section 4.01
[(other than Section 4.01(e)(iii))]/1/ are correct, before and after giving
effect to the Proposed B Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date;
-----------------------
/1/ Exclude bracketed text if the proposed B Borrowing is the initial Borrowing
under the Credit Agreement.
Form of Notice of B Borrowing
-----------------------------
- 2-
(b) no event has occurred and is continuing, or would result from the
Proposed B Borrowing or from the application of the proceeds therefrom,
which constitutes a Default or an Event of Default; and
(c) the aggregate amount of the Proposed B Borrowing and all other
Borrowings to be made on the same day under the Credit Agreement is within
the aggregate amount of the unused Commitments of the Lenders.
The undersigned hereby confirms that the Proposed B Borrowing is to be
made available to it in accordance with Section 2.03(a)(v) of the Credit
Agreement.
Very truly yours,
ELECTRIC LIGHTWAVE, INC.
By________________________
Title:
Form of Notice of B Borrowing
-----------------------------
EXHIBIT C
ASSIGNMENT AND ACCEPTANCE
Dated ____________ __, _____
Reference is made to the Credit Agreement dated as of November __,
1997 (the "Credit Agreement") among Electric Lightwave, Inc., a Delaware
----------------
corporation (the "Borrower"), the Guarantors (as defined in the Credit
--------
Agreement), the Lenders (as defined in the Credit Agreement) and Citibank, N.A.,
as Administrative Agent for the Lenders (the "Administrative Agent"). Terms
--------------------
defined in the Credit Agreement are used herein with the same meaning.
_____________ (the "Assignor") and _____________ (the "Assignee")
-------- --------
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, that interest in and to
all of the Assignor's rights and obligations under the Credit Agreement as of
the date hereof [(other than in respect of B Advances and B Notes)]/1/ which
represents the percentage interest specified on Schedule 1 of all outstanding
rights and obligations under the Credit Agreement [(other than in respect of B
Advances and B Notes)]/1/, including, without limitation, such interest in the
Assignor's Commitment, the A Advances and B Advances owing to the Assignor, and
the A Note[s] and B Note[s] held by the Assignor. After giving effect to such
sale and assignment, the Assignee's Commitment and the amount of the A Advances
and B Advances owing to the Assignee will be as set forth in Section 2 of
Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (iv) attaches the A Note[s] and B Note[s] referred to in paragraph 1 above
and requests that the Administrative Agent
-------------------------
/1/ Delete bracketed text if B Advances are covered by this Assignment and
Acceptance.
Form of Assignment and Acceptance
---------------------------------
- 2 -
exchange such Note[s] for (X) a new A Note to the order of the Assignee in an
amount equal to the Commitment assumed by it pursuant hereto and a new A Note to
the order of the Assignor in an amount equal to the Commitment retained by it
under the Credit Agreement and (Y) new B Note or Notes to the order of the
Assignee in an amount equal to the principal amount of the B Advances (if any)
acquired by it pursuant hereto and, if the Assignor has retained a portion of
such B Advances, new B Note or Notes to the order of the Assignor in an amount
equal to the principal amount of the B Advances retained by it under the Credit
Agreement, in each case specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Administrative Agent, the Assignor or any other Lender
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Administrative Agent to take such action as
administrative agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (v) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a
Lender; [and] (vi) specifies as its Domestic Lending Office (and address for
notices) and Eurodollar Lending Office the offices set forth beneath its name on
the signature pages hereof [and (vii) attaches the forms prescribed by the
Internal Revenue Service of the United States certifying as to the Assignee's
status for purposes of determining exemption from United States withholding
taxes with respect to all payments to be made to the Assignee under the Credit
Agreement and the Notes or such other documents as are necessary to indicate
that all such payments are subject to such rates at a rate reduced by an
applicable tax treaty]./2/
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee and the consent of the Borrower (to the extent
required pursuant to Section 9.07 of the Credit Agreement), it will be delivered
to the Administrative
--------------------
/2/ If the Assignee is organized under the laws of a jurisdiction outside the
United States.
Form of Assignment and Acceptance
---------------------------------
- 3-
Agent for acceptance and recording by the Administrative Agent. The effective
date of this Assignment and Acceptance shall be the date of acceptance thereof
by the Administrative Agent, unless otherwise specified on Schedule 1 hereto
(the "Effective Date").
--------------
5. Upon such acceptance and recording by the Administrative Agent, as
of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment and Acceptance, have the rights
and obligations of a Lender thereunder and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent,
from and after the Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and Facility Fees with respect thereto) to the Assignee. The Assignor
and Assignee shall make all appropriate adjustments in payments under the Credit
Agreement and the Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
Form of Assignment and Acceptance
---------------------------------
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
Percentage assigned to Assignee _______________%
Assignee's Commitment $______________
Aggregate outstanding principal
amount of A Advances assigned $______________
Principal Amount of A Note
payable to Assignee $______________
Principal Amount of A Note
payable to Assignor $______________
Aggregate outstanding principal
amount of B Advances assigned $______________
Principal Amount of B Note
payable to Assignee $______________
Principal Amount of B Note
payable to Assignor $______________
Effective Date (if other than
date of acceptance by
Administrative Agent)* __________ __, _____
[NAME OF ASSIGNOR], as Assignor
By______________________________
Title:
[NAME OF ASSIGNEE], as Assignee
By______________________________
Title:
Domestic Lending Office:
Eurodollar Lending Office:
* This date should be no earlier than the date of acceptance by the
Administrative Agent.
Form of Assignment and Acceptance
---------------------------------
- 2 -
Accepted this ____ day
of _______, _____
CITIBANK, N.A., as
Administrative Agent
By_____________________
Title:
CONSENTED TO:
ELECTRIC LIGHTWAVE, INC.
By_____________________
Title:
Form of Assignment and Acceptance
---------------------------------
EXHIBIT D
DESIGNATION AGREEMENT
Dated _____________ __, _____
Reference is made to the Credit Agreement dated as of November __,
1997 (the "Credit Agreement") among Electric Lightwave, Inc., a Delaware
----------------
corporation (the "Borrower"), the Guarantors (as defined in the Credit
--------
Agreement), the Lenders (as defined in the Credit Agreement) and Citibank, N.A.,
as Administrative Agent for the Lenders (the "Administrative Agent"). Terms
--------------------
defined in the Credit Agreement are used herein with the same meaning.
____________ (the "Designator") and ____________ (the "Designee")
---------- --------
agree as follows:
1. The Designator hereby designates the Designee, and the Designee
hereby accepts such designation, to have a right to make B Advances pursuant to
Section 2.03 of the Credit Agreement.
2. The Designator makes no representation or warranty and assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto and
(ii) the financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto.
3. The Designee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Designation Agreement; (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Designator or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) confirms that it is a Designated Bidder; (iv)
appoints and authorizes the Administrative Agent to take such action as
administrative agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (v) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a
Lender; and (vi) specifies as its Applicable Lending Office with respect
Form of Designation Agreement
-----------------------------
- 2 -
to B Advances (and address for notices) the offices set forth beneath its name
on the signature pages hereof.
4. Following the execution of this Designation Agreement by the
Designator and its Designee, it will be delivered to the Administrative Agent
for acceptance and recording by the Administrative Agent. The effective date of
this Designation Agreement shall be the date of acceptance thereof by the
Administrative Agent, unless otherwise specified on the signature page hereto
(the "Effective Date").
--------------
5. Upon such acceptance and recording by the Administrative Agent, as
of the Effective Date, the Designee shall be a party to the Credit Agreement
with a right to make B Advances as a Lender pursuant to Section 2.03 of the
Credit Agreement and the rights and obligations of a Lender related thereto.
6. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
Form of Designation Agreement
-----------------------------
- 3 -
IN WITNESS WHEREOF, the parties hereto have caused this Designation
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
Effective Date*: _____________ __, _____
[NAME OF DESIGNATOR]
By________________________
Title:
[NAME OF DESIGNEE]
By________________________
Title:
Applicable Lending
Office (and address
for notices)
__________________________
__________________________
__________________________
__________________________
Accepted this ____ day
of _____________, _____
CITIBANK, N.A., as
Administrative Agent
By______________________
Title:
* This date should be no earlier than the date of acceptance by the
Administrative Agent.
Form of Designation Agreement
-----------------------------
EXHIBIT E
[Form of Opinion of Counsel of the Borrower]
________, 1997
To the Banks party to the
Credit Agreement referred to
below
Citibank, N.A., as Administrative
Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This opinion is rendered in connection with the Credit Agreement (the
"Credit Agreement") dated as of November __, 1997, among the Electric Lightwave,
-----------------
Inc. (the "Borrower"), Citizens Utilities Company (the "Parent Guarantor"), the
-------- ----------------
Subsidiary Guarantors referred to therein, the Lenders referred to therein and
Citibank, N.A., as Administrative Agent, providing for loans to be made by said
Lenders to the Borrower in an aggregate principal amount not exceeding
$400,000,000. Terms defined in the Credit Agreement are used herein as therein
defined.
I am the General Counsel of the Parent Guarantor and, in that capacity in
connection with the foregoing, I have examined the Credit Agreement and the
Notes. I have also examined originals or copies, certified or otherwise
identified to my satisfaction, of such documents, corporate records,
certificates of public officials and other instruments, and have conducted such
other investigations of fact and law, as I have deemed necessary or advisable
for purposes of this opinion.
Based on the foregoing, I am of the opinion that:
1. Each of the Guarantor and the Principal Subsidiaries (a) is a
corporation duly organized, validly existing and in good standing
under the laws of the state of its incorporation, (b) has the
requisite power and authority to own its property and assets and to
carry on its business as now conducted and (c) is qualified to do
business in every jurisdiction where such qualification is required,
except where the failure so to qualify would not have a Material
Adverse Effect.
2. The execution, delivery and performance by each Obligor of the Credit
Agreement and (in the case of the Borrower) the Notes (a) have been
duly authorized by all necessary corporate action on the part of such
Obligor and do not and will not require the consent or approval of
Opinion of Counsel of the Borrower
----------------------------------
- 2 -
shareholders of such Obligor, other than such consents as have been
obtained, (b) will not violate (i) any provision of law, statute, rule
or regulation or the Certificate of Incorporation or the By-Laws of
any Obligor or (ii) any order of any court or of any other agent of
government binding upon any Obligor, (c) will not violate, be in
conflict with, result in a breach of or constitute (alone or with
notice or lapse of time or both) a default under any indenture,
agreement or other instrument to which the Parent Guarantor or any
Principal Subsidiary is a party or by which the Parent Guarantor or
any Principal Subsidiary or any of its properties or assets are or may
be bound and (d) will not result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any property
or assets of the Parent Guarantor or any Principal Subsidiary.
3. All consents or approvals of, or other actions by, any governmental
agency, authority or regulatory body required in connection with the
execution, delivery and performance by each Obligor of the Credit
Agreement and (in the case of the Borrower) the Notes have been duly
obtained and are in full force and effect, without amendment or
modification, and are not the subject of any pending or threatened
proceedings seeking to amend, modify, or rescind all or any portion of
the terms thereof, or any stay.
4. The Credit Agreement and (in the case of the Borrower) the Notes have
been duly executed and delivered by each Obligor and constitute legal,
valid and binding obligations of each Obligor stated to be a party
thereto, enforceable against such Obligor in accordance with their
terms, except as such enforceability may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium and other laws
affecting the rights of creditors generally and general principles of
equity.
5. There are not any actions, suits, or proceedings at law or in equity
or by or before any governmental instrumentality, regulatory
authority, or other agency now pending or, to the best of my
knowledge, threatened against the Parent Guarantor or any Subsidiary
(a) which involve the Credit Agreement or any of the transactions
contemplated thereby or (b) which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect, or (ii)
impair in any respect the validity or enforceability of, or the
ability of any Obligor to perform its obligations under, the Credit
Agreement or the Notes.
Opinion of Counsel of the Borrower
----------------------------------
- 3 -
6. Neither the Parent Guarantor nor any Subsidiary is in violation of any
law, or in default with respect to any judgment, writ, injunction,
decree, rule, or regulation of any court or governmental agency or
instrumentality, where such violation or default could have (i) a
Material Adverse Effect, or (ii) impair in any respect the validity or
enforceability of, or the ability of any Obligor to perform its
obligations under, the Credit Agreement or the Notes.
7. Neither the Parent Guarantor nor any Subsidiary is an "investment
company" as defined in or subject to regulation under the Investment
Company Act of 1940, as amended. Neither the Parent Guarantor nor the
Subsidiary is a "holding company" as defined in or subject to
regulation under the Public Utility Holding Company Act of 1935, as
amended.
Very truly yours,
Opinion of Counsel of the Borrower
----------------------------------
EXHIBIT F
[Form of Opinion of Special New York Counsel
to the Administrative Agent]
November __, 1997
To the Banks party to the
Credit Agreement referred to
below
Citibank, N.A., as
Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as special New York counsel to Citibank, N.A., as
Administrative Agent, in connection with the Credit Agreement dated as of
November __, 1997 (the "Credit Agreement") among Electric Lightwave, Inc. (the
----------------
"Borrower"), the guarantors named therein, the lenders named therein and
---------
Citibank, N.A., as Administrative Agent, providing for loans to be made by said
lenders to the Borrower in an aggregate principal amount not exceeding
$400,000,000. Terms defined in the Credit Agreement are used herein as defined
therein. This opinion is being delivered pursuant to Section 3.01(f) of the
Credit Agreement.
In rendering the opinions expressed below, we have assumed, with
respect to all of the documents referred to in this opinion letter, that:
(i) such documents have been duly authorized by, have been duly
executed and delivered by, and (except to the extent set forth in
the opinions below as to the Borrower) constitute legal, valid,
binding and enforceable obligations of, all of the parties to
such documents;
(ii) all signatories to such documents have been duly authorized; and
(iii) all of the parties to such documents are duly organized and
validly existing and have the power and authority (corporate or
other) to execute, deliver and perform such documents.
Opinion of Special New York Counsel
to the Administrative Agent
---------------------------
- 2 -
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that each of the Credit Agreement and the
Notes constitutes the legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or transfer or other similar laws relating to or affecting the rights
of creditors generally and except as the enforceability of the Credit Documents
is subject to the application of general principles of equity (regardless of
whether considered in a proceeding in equity or at law), including, without
limitation, (a) the possible unavailability of specific performance, injunctive
relief or any other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of Section 9.04(b) of the Credit Agreement may
be limited by laws limiting the enforceability of provisions exculpating or
exempting a party from, or requiring indemnification of a party for, its
own action or inaction, to the extent such action or inaction involves
gross negligence, recklessness or wilful or unlawful conduct.
(B) The enforceability of provisions in the Credit Documents to the
effect that terms may not be waived or modified except in writing may be
limited under certain circumstances.
(C) We express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Lender is located (other than the State of New
York) that limit the interest, fees or other charges such Lender may
impose, (ii) the second sentence of Section 2.16 of the Credit Agreement,
(iii) the second sentence of Section 9.08 of the Credit Agreement, insofar
as such sentence relates to the subject matter jurisdiction of the United
States District Court for the Southern District of New York to adjudicate
any controversy related to the Credit Documents, (iv) the waiver of
inconvenient forum set forth in Section 9.08 of the Credit Agreement with
respect to proceedings in the United States District Court for the Southern
District of New York and (v) Section 9.09 of the Credit Agreement.
Opinion of Special New York Counsel
to the Administrative Agent
---------------------------
- 3 -
(D) Clause (iii) of the second sentence of Section 10.02 of the
Credit Agreement may not be enforceable to the extent that the Guaranteed
Obligations are materially altered.
(E) We express no opinion as to the applicability to the obligations
of any Subsidiary Guarantor (or the enforceability of such obligations) of
Section 548 of the Bankruptcy Code or any other provision of law relating
to fraudulent conveyances, transfers or obligations.
The foregoing opinions are limited to matters involving the Federal
laws of the United States and the law of the State of New York, and we do not
express any opinion as to the laws of any other jurisdiction.
This opinion letter is, pursuant to Section 3.01(f) of the Credit
Agreement, provided to you by us in our capacity as special New York counsel to
the Administrative Agent and may not be relied upon by any person for any
purpose other than in connection with the transactions contemplated by the
Credit Agreement without, in each instance, our prior written consent.
Very truly yours,
Opinion of Special New York Counsel
to the Administrative Agent
---------------------------