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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of October 11, 1996
among
EDISON MISSION ENERGY
and
CERTAIN COMMERCIAL LENDING INSTITUTIONS,
and
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
as the Administrative Agent, Syndication Agent
and Money Market Loan Agent for the Lenders
Arranged by
BA SECURITIES, INC.
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TABLE OF CONTENTS
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Page
I
DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . . . . . . . 1
1.1. Defined Terms. . . . . . . . . . . . . . . . . . . 1
1.2. Use of Defined Terms . . . . . . . . . . . . . . . 21
1.3. Cross-References . . . . . . . . . . . . . . . . . 21
1.4. Accounting and Financial Determinations. . . . . . 21
II
REVOLVING LOAN COMMITMENT, BORROWING PROCEDURES AND NOTES. . . 21
2.1. Revolving Loan Commitment. . . . . . . . . . . . . 21
2.1.1. Revolving Loan Commitment. . . . . . . . . . . . . 21
2.1.2. Lenders Not Required To Make Loans . . . . . . . . 22
2.2. Reduction of Revolving Loan Commitment Amount. . . 22
2.3. Borrowing Procedure. . . . . . . . . . . . . . . . 22
2.4. Continuation and Conversion Elections. . . . . . . 23
2.5. Funding. . . . . . . . . . . . . . . . . . . . . . 24
2.6. Notes. . . . . . . . . . . . . . . . . . . . . . . 24
2.7. Increase in Revolving Loan Commitment Amount . . . 24
2.8. Money Market Borrowings. . . . . . . . . . . . . . 26
2.9. Utilization of Revolving Commitments in Offshore
Currencies . . . . . . . . . . . . . . . . . . . . 31
2.10. Currency Exchange Fluctuations . . . . . . . . . . 32
2.11. Judgment Currency. . . . . . . . . . . . . . . . . 32
III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES . . . . . . . . . . 33
3.1. Repayments and Prepayments . . . . . . . . . . . . 33
3.1.1. Payment Terms. . . . . . . . . . . . . . . . . . . 33
3.2. Interest Provisions. . . . . . . . . . . . . . . . 34
3.2.1. Rates. . . . . . . . . . . . . . . . . . . . . . . 34
3.2.2. Post-Maturity Rates. . . . . . . . . . . . . . . . 35
3.2.3. Payment Dates. . . . . . . . . . . . . . . . . . . 36
3.2.4. Interest Rate Determination. . . . . . . . . . . . 36
3.3. Fees . . . . . . . . . . . . . . . . . . . . . . . 36
3.3.1. Facility Fee . . . . . . . . . . . . . . . . . . . 36
3.3.2. Agent's Fee. . . . . . . . . . . . . . . . . . . . 37
IV
CERTAIN LIBO RATE AND OTHER PROVISIONS . . . . . . . . . . . . 37
4.1. LIBO Rate Lending Unlawful . . . . . . . . . . . . 37
4.2. Inability to Determine Rates . . . . . . . . . . . 37
4.3. Increased LIBO Rate Loan and Offshore Currency
Loan Costs.. . . . . . . . . . . . . . . . . . . . 38
4.4. Obligation to Mitigate . . . . . . . . . . . . . . 38
4.5. Funding Losses . . . . . . . . . . . . . . . . . . 39
4.6. Increased Capital Costs. . . . . . . . . . . . . . 40
4.7. Taxes. . . . . . . . . . . . . . . . . . . . . . . 40
4.8. Payments, Computations.. . . . . . . . . . . . . . 42
4.9. Sharing of Payments. . . . . . . . . . . . . . . . 42
4.10. Setoff . . . . . . . . . . . . . . . . . . . . . . 43
4.11. Use of Proceeds. . . . . . . . . . . . . . . . . . 44
V
THE LETTERS OF CREDIT. . . . . . . . . . . . . . . . . . . . . 44
5.1. The Letter of Credit Commitment. . . . . . . . . . 44
5.1.1. Issuance, Amendment and Renewal of Letters of
Credit . . . . . . . . . . . . . . . . . . . . . . 45
5.1.2. Risk Participations, Drawings and
Reimbursements . . . . . . . . . . . . . . . . . . 48
5.1.3. Repayment of Participations. . . . . . . . . . . . 50
5.1.4. Role of the Issuing Bank . . . . . . . . . . . . . 50
5.1.5. Obligations Absolute . . . . . . . . . . . . . . . 51
5.2. Cash Collateral Pledge . . . . . . . . . . . . . . 52
5.3. Letter of Credit Fees. . . . . . . . . . . . . . . 53
5.4. Issuance of Letters of Credit in Offshore
Currencies . . . . . . . . . . . . . . . . . . . . 53
5.5. Uniform Customs and Practice . . . . . . . . . . . 54
5.6. Additional and Successor Issuing Bank. . . . . . . 54
VI
CONDITIONS TO CREDIT EXTENSIONS. . . . . . . . . . . . . . . . 54
6.1. Conditions to Effectiveness. . . . . . . . . . . . 54
6.1.1. Resolutions. . . . . . . . . . . . . . . . . . . . 54
6.1.2. Delivery of Notes. . . . . . . . . . . . . . . . . 55
6.1.3. Opinions of Counsel. . . . . . . . . . . . . . . . 55
6.1.4. Closing Fees, Expenses.. . . . . . . . . . . . . . 55
6.1.5. Condition to Initial Credit Extension. . . . . . . 55
6.2. All Credit Extensions. . . . . . . . . . . . . . . 55
6.2.1. Representations and Warranties, No Default.. . . . 55
6.2.2. Borrowing Request. . . . . . . . . . . . . . . . . 56
6.2.3. Satisfactory Legal Form. . . . . . . . . . . . . . 56
VII
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 56
7.1. Organization; Power. . . . . . . . . . . . . . . . 56
7.2. Due Authorization; Non-Contravention.. . . . . . . 56
7.3. Government Approval; Regulation. . . . . . . . . . 57
7.4. Validity.. . . . . . . . . . . . . . . . . . . . . 57
7.5. Financial Information. . . . . . . . . . . . . . . 57
7.6. No Material Adverse Change . . . . . . . . . . . . 57
7.7. Litigation.. . . . . . . . . . . . . . . . . . . . 57
7.8. Ownership of Properties. . . . . . . . . . . . . . 58
7.9. Taxes. . . . . . . . . . . . . . . . . . . . . . . 58
7.10. Pension and Welfare Plans. . . . . . . . . . . . . 58
7.11. Environmental Warranties . . . . . . . . . . . . . 58
7.12. Regulations G, T, U and X. . . . . . . . . . . . . 59
7.13. Accuracy of Information. . . . . . . . . . . . . . 59
7.14. The Obligations. . . . . . . . . . . . . . . . . . 60
VIII
COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.1. Affirmative Covenants. . . . . . . . . . . . . . . 60
8.1.1. Financial Information, Reports, Notices. . . . . . 60
8.1.2. Compliance with Laws.. . . . . . . . . . . . . . . 62
8.1.3. Maintenance of Properties. . . . . . . . . . . . . 62
8.1.4. Insurance. . . . . . . . . . . . . . . . . . . . . 62
8.1.5. Books and Records. . . . . . . . . . . . . . . . . 63
8.1.6. Environmental Covenant . . . . . . . . . . . . . . 63
8.2. Negative Covenants . . . . . . . . . . . . . . . . 64
8.2.1. Restrictions on Secured Indebtedness . . . . . . . 64
8.2.2. [Reserved] . . . . . . . . . . . . . . . . . . . . 64
8.2.3. Liens. . . . . . . . . . . . . . . . . . . . . . . 64
8.2.4. Financial Condition. . . . . . . . . . . . . . . . 65
8.2.5. Investments. . . . . . . . . . . . . . . . . . . . 65
8.2.6. Consolidation, Merger. . . . . . . . . . . . . . . 66
8.2.7. Asset Dispositions.. . . . . . . . . . . . . . . . 67
8.2.8. Transactions with Affiliates . . . . . . . . . . . 67
8.2.9. Restrictive Agreements.. . . . . . . . . . . . . . 67
8.3. ERISA. . . . . . . . . . . . . . . . . . . . . . . 68
IX
EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . 68
9.1. Listing of Events of Default . . . . . . . . . . . 68
9.1.1. Non-Payment of Obligations . . . . . . . . . . . . 68
9.1.2. Breach of Warranty . . . . . . . . . . . . . . . . 68
9.1.3. Non-Performance of Certain Covenants and
Obligations. . . . . . . . . . . . . . . . . . . . 68
9.1.4. Non-Performance of Other Covenants and
Obligations. . . . . . . . . . . . . . . . . . . . 69
9.1.5. Default on Other Indebtedness. . . . . . . . . . . 69
9.1.6. Judgments. . . . . . . . . . . . . . . . . . . . . 69
9.1.7. Pension Plans. . . . . . . . . . . . . . . . . . . 70
9.1.8. Control of the Borrower. . . . . . . . . . . . . . 70
9.1.9. Bankruptcy, Insolvency.. . . . . . . . . . . . . . 70
9.2. Action if Bankruptcy . . . . . . . . . . . . . . . 71
9.3. Action if Other Event of Default . . . . . . . . . 71
9.4. Rescission of Declaration. . . . . . . . . . . . . 72
X
THE AGENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.1. Actions. . . . . . . . . . . . . . . . . . . . . . 72
10.2. Funding Reliance.. . . . . . . . . . . . . . . . . 73
10.3. Exculpation. . . . . . . . . . . . . . . . . . . . 74
10.4. Successor. . . . . . . . . . . . . . . . . . . . . 74
10.5. Loans by BofA. . . . . . . . . . . . . . . . . . . 75
10.6. Reliance by Agent. . . . . . . . . . . . . . . . . 75
10.7. Notice of Default. . . . . . . . . . . . . . . . . 75
10.8. Credit Decisions . . . . . . . . . . . . . . . . . 76
10.9. Copies.. . . . . . . . . . . . . . . . . . . . . . 76
XI
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . 76
11.1. Waivers, Amendments. . . . . . . . . . . . . . . . 76
11.2. Notices. . . . . . . . . . . . . . . . . . . . . . 77
11.3. Payment of Costs and Expenses. . . . . . . . . . . 78
11.4. Indemnification. . . . . . . . . . . . . . . . . . 78
11.5. Survival . . . . . . . . . . . . . . . . . . . . . 80
11.6. Severability . . . . . . . . . . . . . . . . . . . 80
11.7. Headings . . . . . . . . . . . . . . . . . . . . . 80
11.8. Execution in Counterparts, Effectiveness.. . . . . 80
11.9. Governing Law; Entire Agreement. . . . . . . . . . 80
11.10. Successors and Assigns . . . . . . . . . . . . . . 80
11.11. Sale and Transfer of Loans and Notes;
Participations in Loans and Notes. . . . . . . . . 81
11.11.1. Assignments . . . . . . . . . . . . . . . . . . 81
11.11.2. Participations. . . . . . . . . . . . . . . . . 82
11.12. Other Transactions . . . . . . . . . . . . . . . . 83
11.13. Forum Selection and Consent to Jurisdiction. . . . 83
11.14. Waiver of Jury Trial . . . . . . . . . . . . . . . 84
11.15. Non-Recourse Persons . . . . . . . . . . . . . . . 84
EXHIBITS
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A-1 - Revolving Note
A-2 - Money Market Note
B-1 - Borrowing Request
B-2 - L/C Application
C - Continuation/Conversion Notice
D - Lender Assignment Agreement
E - Opinion of Counsel to Borrower
F - Certificate of Borrower
G - Money Market Quote Request
H - Invitation for Money Market Quotes
I - Money Market Quote
J - Notice of Money Market Borrowing
SCHEDULES
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2.1 - Revolving Loan Commitments
2.9 - Agreed Alternative Currencies
11.2 - Addresses for Notices and Lending Offices
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
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THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of October 11, 1996, among EDISON MISSION ENERGY, a
California corporation (the "Borrower"), the various financial
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institutions as are or may become parties hereto (collectively,
the "Lenders"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
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ASSOCIATION, ("Agent"), as agent for the Lenders.
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RECITALS
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A. The Agent, the Lenders, the Issuing Bank and the
Borrower are party to an Amended and Restated Credit Agreement
dated as of November 17, 1994 pursuant to which the Lenders and
the Issuing Bank agreed to provide a letter of credit and
revolving multicurrency facility (the "Existing Credit
Agreement").
B. The Lenders are willing, on the terms and subject
to the conditions hereinafter set forth, to refinance the
Existing Credit Agreement and to increase the Revolving Loan
Commitments and make Revolving Loans to the Borrower and to
purchase risk participations in Letters of Credit issued by the
Issuing Bank (all as hereinafter defined); and
C. The proceeds of such Revolving Loans will be used
for general corporate purposes of the Borrower;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms
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(whether or not underscored) when used in this Agreement,
including its preamble and recitals, shall, except where the
context otherwise requires, have the following meanings (such
meanings to be equally applicable to the singular and plural
forms thereof):
"Absolute Rate Auction" means a solicitation of Money
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Market Quotes setting forth Money Market Absolute Rates pursuant
to Section 2.8.
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"Affiliate" of any Person means any other Person which,
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directly or indirectly, controls, is controlled by or is under
common control with such Person (excluding any trustee under, or
any committee with responsibility for administering, any Pension
Plan or Welfare Plan). A Person shall be deemed to be
"controlled by" any other Person if such other Person possesses,
directly or indirectly, power to direct or cause the direction of
the management and policies of such Person whether by contract or
otherwise.
"Agent" means BofA in its capacity as administrative
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agent, syndication agent and money market loan agent for the
Lenders hereunder, and includes each other Person as shall have
subsequently been appointed as the successor Agent pursuant to
Section 10.4.
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"Agent-Related Persons" means BofA and any successor
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agent arising under Section 10.4 and any successor Issuing Bank
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hereunder, together with their respective Affiliates (including,
in the case of BofA, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Agreed Alternative Currency" shall mean the
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eurocurrencies listed on Schedule 2.9, as amended from time to
time, pursuant to the procedures specified in Section 2.9.
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"Agreement" means, on any date, this Second Amended and
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Restated Credit Agreement as originally in effect on the
Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in
effect on such date.
"Alternate Base Rate" means, on any date and with
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respect to all Base Rate Loans, a fluctuating rate of interest
per annum equal to the higher of
(a) the rate of interest in effect for such day
as publicly announced from time to time by BofA in San
Francisco California, as its "reference rate." The
"reference rate" is a rate set by BofA based upon
various factors including BofA's costs and desired
return, general economic conditions and other factors,
and is used as a reference point for pricing some
loans, which may be priced at, above, or below such
announced rate, or
(b) the Federal Funds Rate most recently
determined by the Agent plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the
lowest rate of interest determined by the Agent in connection
with extensions of credit. Changes in the rate of interest on
that portion of any Loans maintained as Base Rate Loans will take
effect simultaneously with each change in the Alternate Base
Rate. The Agent will give notice promptly to the Borrower and
the Lenders of changes in the Alternate Base Rate.
"Applicable Currency" means, as to any particular
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payment or Loan or L/C Obligation, Dollars or the Offshore
Currency in which it is denominated or is payable, and, if no
Applicable Currency is specified, shall mean Dollars.
"Applicable Margin" means the following basis points
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per annum depending on the level indicated:
Pricing ▇▇▇▇▇ ▇ ▇ ▇ ▇ ▇
▇▇▇▇ ▇▇▇▇▇▇ 17.50 18.50 24.00 30.00 42.50
Base Rate Margin 0.00 0.00 0.0 0.00 0.00
Facility Fee 7.50 9.00 11.00 15.00 20.00
Financial L/C Fee 17.50 18.50 24.00 30.00 42.50
Performance L/C Fee 5.00 4.75 6.50 7.50 11.25
"Level 1": The Applicable Margin shall be
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determined at Level 1 so long as the Borrower's Debt
Rating is A3 or better by Moody's and A- or better by
S&P.
"Level 2": The Applicable Margin shall be
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determined at Level 2 so long as the Borrower's Debt
Rating is Baa1 by Moody's or BBB+ by S&P.
"Level 3": The Applicable Margin shall be
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determined at Level 3 so long as the Borrower's Debt
Rating is Baa2 by Moody's or BBB by S&P.
"Level 4": The Applicable Margin shall be
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determined at Level 4 so long as the Borrower's Debt
Rating is Baa3 by Moody's or BBB- by S&P.
"Level 5": The Applicable Margin shall be
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determined at Level 5 so long as the Borrower's debt
rating is lower than Baa3 by Moody's or BBB- by S&P.
In the event that the Debt Rating established by
▇▇▇▇▇'▇ is at a different Level than the Debt Rating
established by S&P's, the higher Debt Rating shall
apply and the Level associated with such higher rating
shall be the Applicable Margin, except that, in the
event that the difference is greater than one rating
Level, the average of the two Debt Ratings by Moody's
and by S&P shall apply to determine the Applicable
Margin; provided, however, that both Debt Ratings set
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forth in Level 1 must be in effect for Level 1 to apply
and if either of the Debt Ratings set forth in Level 5
is in effect, ▇▇▇▇▇ ▇ applies.
Changes in the Level for determining the Applicable
Margin resulting from a change in rating(s) shall
become effective on the day such change in the ratings
is announced by the relevant rating agency. In the
event that the Borrower does not maintain a Debt Rating
with both Moody's and S&P, the Borrower may, with the
reasonable consent of Required Lenders, select Duff &
▇▇▇▇▇▇, Fitch Investor Services Inc. or another
reputable rating agency to replace Moody's or S&P, and
such replacement agency and the Debt Rating established
by such agency shall be used thereafter in the
calculation of Applicable Margin in the same fashion as
the agency which no longer maintains such Debt Rating.
From the date which the Debt Rating of Moody's or S&P
ceases to be current until the date which is 120 days
thereafter, the Applicable Margin shall be determined
by reference to the Debt Ratings of Moody's and S&P
most recently in effect. In the event that such
replacement agency has not established a Debt Rating
within 120 days after the Debt Rating of Moody's or S&P
ceases to be current, then, until such time as such
Debt Rating is established, the Applicable Margin shall
be determined at one Level lower than the Level
otherwise established based on the remaining Debt
Rating.
"Arranger" means BA Securities, Inc.
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"Augmenting Lender" has the meaning set forth in
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Section 2.7(c).
"Authorized Representative" means, relative to the
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Borrower, those of its officers and employees whose signatures
and incumbency shall have been certified to the Agent and the
Lenders pursuant to Section 6.1.1.
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"BBAIRS" has the meaning set forth in Section 3.2.1.
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"Base Rate Loan" means a Loan bearing interest at a
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fluctuating rate determined by reference to the Alternate Base
Rate.
"BofA" is defined in the preamble.
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"Borrower" is defined in the preamble.
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"Borrowing" means (i) Revolving Loans of the same type
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and in the same Applicable Currency and, in the case of LIBO Rate
Loans having the same Interest Period, made by all Lenders on the
same Business Day and pursuant to the same Borrowing Request in
accordance with Section 2.1, (ii) Revolving Loans made in
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accordance with Section 5.1.2, and (iii) Money Market Loans of
the same type and Interest Period made by one or more Lenders on
the same Business Day and pursuant to a Money Market Quote
Request in accordance with Section 2.8.
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"Borrowing Request" means a loan request and
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certificate duly executed by an Authorized Representative of the
Borrower, substantially in the form of Exhibit B-1 hereto, with
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respect to Loans, and means an L/C Application duly executed by
an Authorized Representative of the Borrower, substantially in
the form of Exhibit B-2 hereto, with respect to Letters of
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Credit.
"Business Day" means
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(a) any day which is neither a Saturday or Sunday
nor a legal holiday on which banks are authorized or
required to be closed in New York, New York or San
Francisco, California or Tokyo, Japan; and
(b) relative to the making, continuing, prepaying
or repaying of any LIBO Rate Loans or Money Market
LIBOR Loans, any day on which dealings in Dollars are
carried on in the London interbank market; and
(c) relative to the making, continuing, prepaying
or repaying of, and calculations pertaining to, any
Offshore Currency Loan, a day on which commercial banks
are open for foreign exchange business in London,
England, and on which dealings in the relevant Offshore
Currency are carried on in the applicable offshore
foreign exchange interbank market in which disbursement
of or payment in such Offshore Currency will be made or
received hereunder.
"Capitalized Lease Liabilities" of any Person means all
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monetary obligations of such Person under any leasing or similar
arrangement which, in accordance with GAAP, would be classified
as capitalized leases, and, for purposes of this Agreement and
each other Loan Document, the amount of such obligations shall be
the capitalized amount thereof, determined in accordance with
GAAP.
"Cash Collateralize" means to pledge and deposit with
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or deliver to the Agent, for the ratable benefit of the Agent,
the Issuing Bank and the Lenders, as collateral for the L/C
Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Agent and
the Issuing Bank. The Borrower hereby grants the Agent, for the
benefit of the Agent, the Issuing Bank and the Lenders, a
security interest in all such cash and deposit account balances.
Cash collateral shall be maintained in blocked, interest bearing
deposit or investment accounts at the Agent, under the sole
dominion and control of the Agent, subject to investment
instructions from the Borrower, if applicable, and mutually
agreeable documentation.
"Cash Equivalent Investment" means, at any time:
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(a) any evidence of Indebtedness, maturing not
more than one year after such time, issued or
guaranteed by the United States Government or an agency
thereof; or
(b) other investments in securities or bank
instruments in each case of investment grade and with
maturities of less than 366 days; or
(c) other securities as to which the Borrower has
demonstrated, to the satisfaction of the Agent,
adequate liquidity through secondary markets or deposit
agreements.
"CERCLIS" means the Comprehensive Environmental
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Response Compensation Liability Information System List.
"Change in Control" means the failure of Edison
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International to own, directly or indirectly, at least 50.1% of
the outstanding shares of voting stock of the Borrower (or any
successor pursuant to Section 8.2.6(c)) on a fully diluted basis.
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"Co-Agents" means Bank of Montreal, Credit Lyonnais,
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New York Branch, The Industrial Bank of Japan, The Long-Term
Credit Bank of Japan, NationsBank of Texas, N.A., Societe
Generale and Swiss Bank Corporation.
"Code" means the Internal Revenue Code of 1986, as
----
amended, reformed or otherwise modified from time to time.
"Commitment Termination Event" means
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(a) the occurrence of any Default described in
clauses (a) through (e) of Section 9.1.9 with respect
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to the Borrower; or
(b) the occurrence and continuance of any other
Event of Default and either
(i) the declaration of the Loans to be due
and payable pursuant to Section 9.3, or
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(ii) in the absence of such declaration, the
giving of notice by the Agent pursuant to
Section 9.3, acting at the direction of the
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Required Lenders, to the Borrower that the
Commitments have been terminated.
"Committed Loan" means a Loan made pursuant to Section
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2.1.
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"Computation Date" has the meaning set forth in Section
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2.9(a).
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"Contingent Liability" means any agreement, undertaking
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or arrangement by which any Person guarantees, endorses or
otherwise becomes or is contingently liable upon (by direct or
indirect agreement, contingent or otherwise, to provide funds for
payment, to supply funds to, or otherwise to invest in, a debtor,
or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than
by endorsements of instruments in the course of collection), or
guarantees the payment of dividends or other distributions upon
the shares of any other Person. The amount of any Person's
obligation under any Contingent Liability shall (subject to any
limitation set forth therein) be deemed to be the outstanding
principal amount of the debt, obligation or other liability
guaranteed thereby; provided, however, that if the maximum amount
-----------------
of the debt, obligation or other liability guaranteed thereby has
not been established, the amount of such Contingent Liability
shall be the maximum reasonably anticipated amount of the debt,
obligation or other liability; provided, further, however, that
-------- -------
any agreement to limit the maximum amount of such Person's
obligation under such Contingent Liability shall not, of and by
itself, be deemed to establish the maximum reasonably anticipated
amount of such debt, obligation or other liability.
"Continuation/Conversion Notice" means a notice of
------------------------------
continuation or conversion and certificate duly executed by an
Authorized Representative of the Borrower, substantially in the
form of Exhibit C hereto.
---------
"Controlled Group" means all members of a controlled
----------------
group of corporations and all members of a controlled group of
trades or businesses (whether or not incorporated) under common
control which, together with the Borrower, are treated as a
single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
"Credit Extension" means and includes (a) any Borrowing
----------------
and (b) any Issuance of, or participation in, any Letters of
Credit.
"Debt Rating" means a rating of the Borrower's long-
-----------
term debt which is not secured or supported by a guarantee,
letter of credit or other form of credit enhancement. If Moody's
or S&P shall have changed its system of classifications after the
date hereof, the Borrower's Debt Rating shall be considered to be
at or above a specified level if it is at or above the new rating
which most closely corresponds to the specified level under the
old rating system.
"Default" means any Event of Default or any condition,
-------
occurrence or event which, after notice or lapse of time or both,
would constitute an Event of Default.
"Dollar" and the sign "$" mean lawful money of the
------ -
United States.
"Dollar Equivalent" means, at any time, (a) as to any
-----------------
amount denominated in Dollars, the amount thereof at such time,
and (b) as to any amount denominated in any other Offshore
Currency, the equivalent amount in Dollars as determined by the
Agent at such time on the basis of the Spot Rate for the purchase
of Dollars with such Offshore Currency on the most recent
Computation Date, as defined in and provided for in Section
2.9(a). -------
------
"Domestic Office" means, relative to any Lender, the
---------------
office of such Lender designated on Schedule 11.2 or designated
in the Lender Assignment Agreement or such other office of a
Lender (or any successor or assign of such Lender) within the
United States as may be designated from time to time by notice
from such Lender, as the case may be, to each other Person party
hereto. A Lender may have separate Domestic Offices for purposes
of making, maintaining or continuing, as the case may be, Base
Rate Loans.
"Edison International" means Edison International, a
--------------------
California corporation.
"Effective Date" means the date this Agreement becomes
--------------
effective pursuant to Section 11.8.
------------
"Eligible Assignee" means (i) a commercial bank
-----------------
organized or licensed under the laws of the United States, or any
state thereof, and having a combined capital and surplus of at
least $250,000,000; (ii) a commercial bank organized under the
laws of any other country which is a member of the Organization
for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having a combined
capital and surplus of at least $250,000,000, provided that such
bank is acting through a branch or agency located in the country
in which it is organized or another country which is also a
member of the OECD; and (iii) a Person that is primarily engaged
in the business of commercial banking and that is (A) a
Subsidiary of a Lender, (B) a Subsidiary of a Person of which a
Lender is a Subsidiary, or (C) a Person of which a Lender is a
Subsidiary.
"Environmental Laws" means all applicable federal,
------------------
state or local statutes, laws, ordinances, codes, rules,
regulations and guidelines (including consent decrees and
administrative orders) relating to Hazardous Materials and/or to
public health and safety and protection of the environment,
including the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, and the Resource
Conservation and Recovery Act, as amended.
"ERISA" means the Employee Retirement Income Security
-----
Act of 1974, as amended, and any successor statute of similar
import, together with the regulations thereunder, in each case as
in effect from time to time. References to sections of ERISA
also refer to any successor sections.
"Event of Default" is defined in Section 9.1.
---------------- -----------
"Federal Funds Rate" means, for any period, a
------------------
fluctuating interest rate per annum equal for each day during
such period to
(a) 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
(b) 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 Agent
from not less than three of the Co-Agents (or if
quotations are unavailable from any of them, up to
three federal funds brokers of recognized standing
selected by the Agent).
"Financial Letter of Credit" means a standby or direct
--------------------------
pay Letter of Credit supporting indebtedness owing to third
parties, which may include workers' compensation requirements.
"Fiscal Quarter" means any quarter of a Fiscal Year.
--------------
"Fiscal Year" means any period of twelve consecutive
-----------
calendar months ending on December 31; references to a Fiscal
Year with a number corresponding to any calendar year (e.g., the
----
"1988 Fiscal Year") refer to the Fiscal Year ending on December
31 occurring during such calendar year.
"F.R.S. Board" means the Board of Governors of the
------------
Federal Reserve System or any successor thereto.
"FX Trading Office" means the Foreign Exchange Trading
-----------------
Center #5193, San Francisco, California, of BofA, or such other
of BofA's offices as BofA may designate from time to time.
"GAAP" is defined in Section 1.4.
---- -----------
"Government Approval" is defined in Section 7.3.
------------------- -----------
"Hazardous Material" means
------------------
(a) any "hazardous substance", as defined by any
Environmental Law;
(b) any "hazardous waste", as defined by any
Environmental Law;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material or substance
within the meaning of any other applicable federal,
state or local law, regulation, ordinance or
requirement (including consent decrees and
administrative orders) relating to or imposing
liability or standards of conduct concerning any
hazardous, toxic or dangerous waste, substance or
material, all as amended or hereafter amended.
"herein", "hereof", "hereto", "hereunder" and similar
------ ------ ------ ---------
terms contained in this Agreement or any other Loan Document
refer to this Agreement or such other Loan Document, as the case
may be, as a whole and not to any particular Section, paragraph
or provision of this Agreement or such other Loan Document.
"including" means including without limiting the
---------
generality of any description preceding such term, and, for
purposes of this Agreement and each other Loan Document, the
parties hereto agree that the rule of ejusdem generis shall not
------- -------
be applicable to limit a general statement, which is followed by
or referable to an enumeration of specific matters, to matters
similar to the matters specifically mentioned.
"Indebtedness" of any Person means, without
------------
duplication:
(a) all indebtedness for borrowed money;
(b) all obligations issued, undertaken or assumed
as the deferred purchase price of property or services
which purchase price is due more than six months from
the date of incurrence of the obligation in respect
thereof or is evidenced by a note or other instrument;
(c) all reimbursement obligations with respect to
surety bonds, letters of credit (to the extent not
collateralized with cash or Cash Equivalent
Investments), bankers' acceptances and similar
instruments (in each case, whether or not matured);
(d) all obligations evidenced by notes, bonds,
debentures or similar instruments, including
obligations so evidenced incurred in connection with
the acquisition of property, assets or businesses;
(e) all indebtedness created or arising under any
conditional sale or other title retention agreement, or
incurred as financing, in either case with respect to
property acquired by the Person (even though the rights
and remedies of the seller or bank under such agreement
in the event of default are limited to repossession or
sale of such property);
(f) all Capitalized Lease Liabilities;
(g) all net obligations with respect to sales of
foreign exchange options;
(h) all indebtedness referred to in
paragraphs (a) through (g) above secured by (or for
--------------------------
which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any
Lien upon or in property (including accounts and
contracts rights) owned by such Person, even though
such Person has not assumed or become liable for the
payment of such Indebtedness; and, without duplication,
(i) all Contingent Liabilities.
For all purposes of this Agreement, the Indebtedness of any
Person shall include the Indebtedness of any partnership or joint
venture in which such Person is a general partner or a joint
venturer.
"Interest Period" means,
---------------
(a) relative to any LIBO Rate Loans, the period
beginning on (and including) the date on which such
LIBO Rate Loan is made or continued as, or converted
into, a LIBO Rate Loan pursuant to Section 2.3 or 2.4
----------- ---
and shall end on (but exclude) the day which
numerically corresponds to such date one, two, three or
six months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day
of such month), in either case as the Borrower may
select in its relevant notice pursuant to Section 2.3
or 2.4; provided, however, that: -----------
--- -------- -------
(i) the Borrower shall not be permitted to
select Interest Periods to be in effect at any one
time which have expiration dates occurring on more
than ten different dates or such other larger
number of dates and on such terms as may be agreed
to by the Borrower and the Agent;
(ii) Interest Periods commencing on the same
date for Loans comprising part of the same
Borrowing shall be of the same duration;
(iii) if such Interest Period would
otherwise end on a day which is not a Business
Day, such Interest Period shall end on the next
following Business Day (unless, if such Interest
Period applies to LIBO Rate Loans, such next
following Business Day is the first Business Day
of a calendar month, in which case such Interest
Period shall end on the Business Day next
preceding such numerically corresponding day); and
(iv) no Interest Period may end later than
the date set forth in clause (a) of the definition
----------
of "Revolving Loan Commitment Termination Date".
------------------------------------------
(b) with respect to each Money Market LIBOR Loan
Borrowing, the period commencing on the date of such
Borrowing and ending such number of days thereafter
(but not less than seven (7) days or more than six
months) as the Borrower may elect in accordance with
Section 2.8; provided that:
----------- --------
(i) any Interest Period which would
otherwise end on a day which is not a Business Day
shall be extended to the next succeeding Business
Day unless such Business Day falls in another
calendar month, in which case such Interest Period
shall end on the next preceding Business Day; and
(ii) any Interest Period which would
otherwise end after the date set forth in
clause (a) of the definition of "Revolving Loan
Commitment Termination Date" shall end on the date
set forth in clause (a) of the definition of
"Revolving Loan Commitment Termination Date."
(c) with respect to each Money Market Absolute
Rate Borrowing, the period commencing on the date of
such Borrowing and ending such number of days
thereafter (but not less than seven (7) days or more
than six months) as the Borrower may elect in
accordance with Section 2.8; provided that:
----------- --------
(i) any Interest Period which would
otherwise end on a day which is not a Business Day
shall be extended to the next succeeding Business
Day; and
(ii) any Interest Period which would
otherwise end after the date set forth in
clause (a) of the definition of "Revolving Loan
Commitment Termination Date" shall end on the date
set forth in clause (a) of the definition of
"Revolving Loan Commitment Termination Date."
"Investment" means, relative to any Person,
----------
(a) any loan or advance made by such Person to
any other Person (excluding commission, travel and
similar advances to officers and employees made in the
ordinary course of business);
(b) any Contingent Liability of such Person; and
(c) any ownership or similar interest held by
such Person in any other Person.
The amount of any Investment shall be the original principal or
capital amount thereof less all returns of principal or equity
thereon (and without adjustment by reason of the financial
condition of such other Person) and shall, if made by the
transfer or exchange of property other than cash, be deemed to
have been made in an original principal or capital amount equal
to the fair market value of such property.
"Invitation for Money Market Quotes" is defined in
----------------------------------
Section 2.8.
-----------
"Issuance Date" has the meaning specified in Section
------------- -------
5.1(a).
------
"Issue" means, with respect to any Letter of Credit, to
-----
issue or to extend the expiry of, or to renew or increase the
amount of, such Letter of Credit; and the terms "Issued,"
------
"Issuing" and "Issuance" have corresponding meanings.
------- --------
"Issuing Bank" means BofA in its capacity as issuer of
------------
one or more Letters of Credit hereunder, together with any
additional or successor letter of credit issuer appointed
pursuant to Section 5.6 hereof.
"L/C Advance" means each Lender's participation in any
-----------
L/C Borrowing in accordance with its Percentage.
"L/C Application" means an application form for
---------------
issuances of Financial Letters of Credit or Performance Letters
of Credit or for amendment thereof as shall at any time be in use
at the Issuing Bank, as the Issuing Bank shall request, in the
form of Exhibit B-2.
"L/C Borrowing" means an extension of credit resulting
-------------
from a drawing under any Letter of Credit which shall not have
been reimbursed on the date when made nor converted into a
Borrowing of Revolving Loans under Section 5.1.2(c).
----------------
"L/C Commitment" means the commitment of the Issuing
--------------
Bank to Issue, and the commitment of the Lenders severally to
participate in Letters of Credit from time to time Issued or
outstanding under Article V; provided that the L/C Commitment is
--------- --------
a part of the Revolving Loan Commitments, rather than a separate,
independent commitment.
"L/C Obligations" means at any time the sum of (a) the
---------------
aggregate undrawn amount of all Letters of Credit then
outstanding, plus (b) the amount of all unreimbursed drawings
under all Letters of Credit, including all outstanding L/C
Borrowings.
"L/C Related Documents" means the Letters of Credit,
---------------------
the L/C Applications and any other document relating to any
Letter of Credit, including any of the Issuing Bank's standard
form documents for letter of credit issuances.
"Letters of Credit" means any Financial Letters of
-----------------
Credit or Performance Letters of Credit Issued by the Issuing
Bank pursuant to Article V.
"Lender Assignment Agreement" means a Lender Assignment
---------------------------
Agreement substantially in the form of Exhibit D hereto.
---------
"Lenders" is defined in the preamble.
------- --------
"LIBO Rate" is defined in Section 3.2.1.
--------- -------------
"LIBO Rate Loan" means a Loan bearing interest, at all
--------------
times during an Interest Period applicable to such Loan in the
Applicable Currency, at a fixed rate of interest determined by
reference to the LIBO Rate.
"LIBOR Auction" means a solicitation of Money Market
-------------
Quotes setting forth Money Market Margins based on the LIBO Rate
pursuant to Section 2.8.
-----------
"LIBOR Office" means, relative to any Lender, the
------------
office of such Lender designated as such on Schedule 11.2 or
designated in the Lender Assignment Agreement or such other
office of a Lender as designated from time to time by notice from
such Lender to the Borrower and the Agent pursuant to
Section 4.4, whether or not outside the United States, which
-----------
shall be making or maintaining LIBO Rate Loans and Money Market
LIBOR Loans of such Lender hereunder.
"LIBO Rate (Reserve Adjusted)" means, relative to any
----------------------------
Loan to be made as a Money Market LIBOR Loan or to be made,
continued or maintained as, or converted into, a LIBO Rate Loan
for any Interest Period, a rate per annum (rounded upwards, if
necessary, to the nearest whole multiple of 1/100 of 1%)
determined pursuant to the following formula:
LIBO Rate = LIBO Rate
-----------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest
Period for LIBO Rate Loans and Money Market LIBOR Loans will be
determined by the Agent on the basis of the LIBOR Reserve
Percentage in effect on, and the applicable rates furnished to
and received by the Agent, two Business Days before the first day
of such Interest Period.
"LIBOR Reserve Percentage" means, relative to any
------------------------
Interest Period for LIBO Rate Loans and Money Market LIBOR Loans,
the reserve percentage (expressed as a decimal) equal to the
aggregate reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account
any transitional adjustments or other scheduled changes in
reserve requirements) specified under regulations issued from
time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of and including "Eurocurrency
Liabilities", as currently defined in Regulation D of the F.R.S.
Board, having a term approximately equal or comparable to such
Interest Period.
"Lien" means any security interest, mortgage, pledge,
----
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or otherwise), charge against or interest in property,
in each case of any kind, to secure payment of a debt or
performance of an obligation.
"Loan" means, as the context may require, either a
----
Revolving Loan, an L/C Borrowing or a Money Market Loan of any
type.
"Loan Document" means this Agreement, the Notes, the
-------------
L/C Related Documents and the other agreements, documents and
instruments delivered in connection with this Agreement and the
Notes including, without limitation, the fee letter referred to
in Section 3.3.2; each Borrowing Request; each
-------------
Continuation/Conversion Notice; each Money Market Quote Request;
each Invitation for Money Market Quotes; and each Notice of Money
Market Borrowing.
"Material Adverse Effect" means a material adverse
-----------------------
change in, or material adverse effect on the financial condition,
operations, assets, business or properties of the Borrower which
would reasonably be expected to affect the Borrower's ability to
perform the Obligations.
"Money Market Absolute Rate" is defined in Section
-------------------------- -------
2.8(d)(ii)(D).
-------------
"Money Market Absolute Rate Loan" means a loan to be
-------------------------------
made by a Lender pursuant to an Absolute Rate Auction.
"Money Market LIBOR Loan" means a loan to be made by a
-----------------------
Lender pursuant to a LIBOR Auction.
"Money Market Loan" means a Money Market LIBOR Loan or
-----------------
a Money Market Absolute Rate Loan.
"Money Market Margin" is defined in Section
------------------- -------
2.8(d)(ii)(C).
-------------
"Money Market Note" means a promissory note of the
-----------------
Borrower payable to any Lender, in the form of Exhibit A-2 hereto
-----------
(as such promissory note may be amended, endorsed or otherwise
modified from time to time), evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from
outstanding Money Market Loans, and also means all other
promissory notes accepted from time to time in substitution or
renewal thereof.
"Money Market Quote" means an offer by a Lender to make
------------------
a Money Market Loan in accordance with Section 2.8.
-----------
"Money Market Quote Request" means a request by the
--------------------------
Borrower to the Agent to conduct an Absolute Rate Auction or a
LIBOR Auction pursuant to Section 2.8.
-----------
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
-------
"Net Tangible Assets" means, as of the date of any
-------------------
determination thereof, the total amount of all assets of the
Borrower and its Subsidiaries (determined on a consolidated basis
in accordance with GAAP), less the sum of (a) the consolidated
----
current liabilities of the Borrower and its Subsidiaries
(determined on a consolidated basis in accordance with GAAP) and
(b) assets properly classified as "intangible assets" in
accordance with GAAP.
"Non-Recourse Debt" means Indebtedness which the
-----------------
Borrower is not directly or indirectly obligated to repay.
"Non-Recourse Persons" means the Affiliates of the
--------------------
Borrower, including The Mission Group, Edison International and
Southern California Edison Company, and the officers, directors,
employees, shareholders, agents, Authorized Representatives and
other controlling persons of the Borrower or any of its
Affiliates, provided that in no event shall the Borrower be
--------
deemed to be a Non-Recourse Person.
"Note" means, as the context may require, a Revolving
----
Note or a Money Market Note.
"Notice of Money Market Borrowing" is defined in
--------------------------------
Section 2.8(f).
--------------
"Obligations" means all obligations (monetary or
-----------
otherwise) of the Borrower arising under or in connection with
this Agreement, the Notes and each other Loan Document.
"Offshore Currency" means at any time Australian
-----------------
dollars, Belgian francs, Canadian dollars, Dutch guilders,
English pounds sterling, French francs, Italian lira, Deutsche
marks, Japanese yen, Swiss francs, United States dollars, Spanish
pesetas and any Agreed Alternative Currency.
"Offshore Currency Loan" means any LIBO Rate Loan
----------------------
denominated in an Offshore Currency.
"Organic Document" means, relative to the Borrower, its
----------------
certificate of incorporation, its by-laws and all shareholder
agreements, voting trusts and similar arrangements applicable to
any of its authorized shares of capital stock.
"Participant" is defined in Section 11.11.2.
----------- ---------------
"Partnership" means a general partnership, limited
-----------
partnership, joint venture or similar entity in which the
Borrower or a Subsidiary is a partner, joint venturer or equity
participant.
"PBGC" means the Pension Benefit Guaranty Corporation
----
and any entity succeeding to any or all of its functions under
ERISA.
"Pension Plan" means a "pension plan", as such term is
------------
defined in section 3(2) of ERISA, which is subject to Title IV
of ERISA (other than a multiemployer plan as defined in section
4001(a)(3) of ERISA), and to which the Borrower or any
corporation, trade or business that is, along with the Borrower,
a member of a Controlled Group, may have liability, including any
liability by reason of having been a substantial employer within
the meaning of section 4063 of ERISA at any time during the
preceding five years, or by reason of being deemed to be a
contributing sponsor under section 4069 of ERISA.
"Percentage" means, relative to any Lender, the
----------
percentage set forth on Schedule 2.1 opposite its name or set
forth in the Lender Assignment Agreement, as such percentage may
be adjusted from time to time pursuant to Lender Assignment
Agreement(s) executed by such Lender and its Assignee Lender(s)
and delivered pursuant to Section 11.11.
-------------
"Performance Letter of Credit" means a standby Letter
----------------------------
of Credit used directly or indirectly to cover bid, performance,
advance and retention obligations, including, without limitation,
Letters of Credit issued in favor of sureties who in connection
therewith cover bid, performance and retention obligations.
"Person" means any natural person, corporation,
------
partnership, firm, association, trust, government, governmental
agency or any other entity, whether acting in an individual,
fiduciary or other capacity.
"Quarterly Payment Date" means the last day of each
----------------------
March, June, September, and December or, if any such day is not a
Business Day, the next succeeding Business Day.
"Required Lenders" means, at any time, Lenders holding
----------------
at least 66-2/3% of the then aggregate outstanding principal
amount of the Notes (excluding Money Market Notes) then held by
the Lenders, or, if no such principal amount is then outstanding,
Lenders having at least 66-2/3% of the Revolving Loan Commitment
Amount.
"Revolving Loan" means Loans made by the Lenders to the
--------------
Borrower pursuant to Section 2.1, and includes Base Rate Loans
-----------
and LIBO Rate Loans.
"Revolving Loan Commitment" means, relative to any
-------------------------
Lender, such Lender's obligation to make Revolving Loans pursuant
to Section 2.1.1 and to purchase risk participations in Letters
-------------
of Credit Issued by the Issuing Bank pursuant to Section 5.1.2.
-------------
"Revolving Loan Commitment Amount" means, on any date,
--------------------------------
$500,000,000, as such amount may be reduced from time to time
pursuant to Section 2.2 or increased from time to time pursuant
-----------
to Section 2.7.
-----------
"Revolving Loan Commitment Termination Date" means the
------------------------------------------
earliest of
(a) October 10, 2001;
(b) the date on which the Revolving Loan
Commitment Amount is terminated in full or reduced to
zero pursuant to Section 2.2; or
-----------
(c) the date on which any Commitment Termination
Event occurs.
Upon the occurrence of any event described in clause (a), (b) or
----------- ---
(c), the Revolving Loan Commitments shall terminate automatically
---
and without any further action.
"Revolving Note" means a promissory note of the
--------------
Borrower payable to any Lender, in the form of Exhibit A-1 hereto
-----------
(as such promissory note may be amended, endorsed or otherwise
modified from time to time), evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from
outstanding Revolving Loans, and also means all other promissory
notes accepted from time to time in substitution therefor or
renewal thereof.
"S&P" means Standard & Poor's Rating Group.
---
"Same Day Funds" means (i) with respect to
--------------
disbursements and payments in Dollars, immediately available
funds, and (ii) with respect to disbursements and payments in any
other Offshore Currency, same day or other funds as may be
determined by the Agent to be customary in the place of
disbursement or payment for the settlement of international
banking transactions in the relevant Offshore Currency.
"Spot Rate" for a currency means the rate quoted by
---------
BofA as the spot rate for the purchase by BofA of such currency
with another currency through its FX Trading Office at
approximately 8:00 a.m. (San Francisco time) on the date as of
which the foreign exchange computation is made.
"Subordinated Debt" means all unsecured Indebtedness of
-----------------
the Borrower for money borrowed which is subordinated, upon terms
(including the terms applicable to the payment, prepayment,
redemption, purchase or defeasance thereof) satisfactory to the
Agent and the Required Lenders, in right of payment to the
payment in full in cash of all Obligations.
"Subsidiary" means, with respect to any Person, any
----------
corporation of which more than 50% of the outstanding capital
stock having ordinary voting power to elect a majority of the
board of directors of such corporation (irrespective of whether
at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence
of any contingency) is at the time directly or indirectly owned
by such Person, by such Person and one or more other Subsidiaries
of such Person, or by one or more other Subsidiaries of such
Person.
"Tangible Net Worth" means the net worth of the
------------------
Borrower and its Subsidiaries (determined on a consolidated basis
in accordance with GAAP) after subtracting therefrom the
aggregate amount of any intangible assets of the Borrower and its
Subsidiaries (determined on a consolidated basis in accordance
with GAAP), including goodwill, franchises, licenses, patents,
trademarks, trade names, copyrights, service marks and brand
names.
"Taxes" is defined in Section 4.7.
----- -----------
"type" means, relative to any Revolving Loan, the
----
portion thereof, if any, being maintained as a Base Rate Loan or
a LIBO Rate Loan or, relative to any Money Market Loan, its
status as a Money Market Absolute Rate Loan or a Money Market
LIBOR Loan.
"UCP" has the meaning specified in Section 5.5.
--- -----------
"United States" or "U.S." means the United States of
------------- ----
America, its fifty States and the District of Columbia.
"Welfare Plan" means a "welfare plan", as such term is
------------
defined in Section 3(l) of ERISA.
SECTION 1.2. Use of Defined Terms. Unless otherwise
--------------------
defined or the context otherwise requires, terms for which
meanings are provided in this Agreement shall have such meanings
when used in each Note, Borrowing Request, Continuation/
Conversion Notice, Loan Document, notice and other communication
delivered from time to time in connection with this Agreement or
any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise
----------------
specified, references in this Agreement and in each other Loan
Document to any Article or Section are references to such Article
or Section of this Agreement or such other Loan Document, as the
case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to
such clause of such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations.
---------------------------------------
Unless otherwise specified, all accounting terms used herein or
in any other Loan Document shall be interpreted, all accounting
determinations and computations hereunder or thereunder
(including under Section 8.2.4) shall be made, and all financial
-------------
statements required to be delivered hereunder or thereunder shall
be prepared in accordance with, those generally accepted
accounting principles in effect in the United States ("GAAP")
----
applied in the preparation of the financial statements referred
to in Section 7.5, except that quarterly financial statements are
-----------
not required to contain footnotes.
ARTICLE II
REVOLVING LOAN COMMITMENT, BORROWING PROCEDURES AND NOTES
SECTION 2.1. Revolving Loan Commitment. On the terms
-------------------------
and subject to the conditions of this Agreement (including
Article VI), each Lender severally agrees to make Revolving Loans
----------
pursuant to the Revolving Loan Commitment described in this
Section 2.1.
-----------
SECTION 2.1.1. Revolving Loan Commitment. From time to
-------------------------
time on any Business Day occurring prior to the Revolving Loan
Commitment Termination Date, each Lender will make Revolving
Loans (relative to such Lender, its "Revolving Loans") to the
---------------
Borrower equal to such Lender's Percentage of the aggregate
Dollar Equivalent amount of the Borrowing of Revolving Loans
requested or deemed to be requested by the Borrower to be made on
such day, including, without limitation, pursuant to Section
5.1.2(b). The commitment of each Lender described in this
Section 2.1.1 is herein referred to as its "Revolving Loan
------------- --------------
Commitment". On the terms and subject to the conditions hereof,
----------
the Borrower may from time to time borrow, prepay, in whole or in
part, and reborrow Revolving Loans.
SECTION 2.1.2. Lenders Not Required To Make Loans. No
----------------------------------
Lender shall be required to make
(a) any Revolving Loan if, after giving effect
thereto,
(i) the aggregate outstanding principal
Dollar Equivalent amount of all Revolving Loans,
all L/C Obligations and all Money Market Loans of
all Lenders would exceed the Revolving Loan
Commitment Amount, or
(ii) the aggregate outstanding principal
Dollar Equivalent amount of all Revolving Loans
and of all L/C Obligations of such Lender would
exceed such Lender's Percentage of the Revolving
Loan Commitment Amount; or
(b) any Money Market Loan if, after giving effect
thereto, the aggregate outstanding principal Dollar
Equivalent amount of all Revolving Loans and all Money
Market Loans and L/C Obligations of all Lenders would
exceed the Revolving Loan Commitment Amount.
SECTION 2.2. Reduction of Revolving Loan Commitment
--------------------------------------
Amount. The Borrower may, from time to time on any Business Day
------
occurring after the Effective Date, voluntarily reduce the
Revolving Loan Commitment Amount without premium or penalty
(subject, however, to Section 4.5); provided, however, that all
----------- -------- -------
such reductions shall require at least three Business Days' prior
notice to the Agent and be permanent, and any partial reduction
of the Revolving Loan Commitment Amount shall be in a minimum
amount of $10,000,000 and in an integral multiple of $1,000,000
and, provided, further, that the Revolving Loan Commitment Amount
may not be reduced to an amount less than the aggregate amount of
outstanding Revolving Loans, Money Market Loans, and L/C
Obligations.
SECTION 2.3. Borrowing Procedure. By delivering a
-------------------
Borrowing Request to the Agent on or before 10:00 a.m., San
Francisco time (as to Base Rate Loans) or 11:00 a.m., San
Francisco time (as to LIBO Rate Loans), on a Business Day, and
subject to Schedule 2.9 with respect to Agreed Alternative
Currencies, the Borrower may from time to time irrevocably
request, (i) on not less than five Business Days' notice in the
case of LIBO Rate Loans denominated in an Offshore Currency other
than Dollars, (ii) on not less than three Business Days' notice
in the case of Dollar LIBO Rate Loans, and (iii) on the same
Business Day in the case of Base Rate Loans denominated in
Dollars, that a Borrowing of Revolving Loans in the Applicable
Currency be made in a minimum Dollar Equivalent amount of
$10,000,000 and an integral multiple of $1,000,000, or in the
unused amount of the Revolving Loan Commitment Amount. On the
terms and subject to the conditions of this Agreement, each
Borrowing shall be comprised of the same type of Loans, and shall
be made on the Business Day, specified in such Borrowing Request.
On or before 11:00 a.m. (San Francisco time) on the Business Day
such Revolving Loans are to be made, each Lender shall deposit
with the Agent Same Day Funds in an amount equal to such Lender's
Percentage of the requested Borrowing. Such deposit will be made
to an account which the Agent shall specify from time to time by
notice to the Lenders. To the extent funds are received from the
Lenders, the Agent shall make such funds available to the
Borrower by wire transfer to the accounts the Borrower shall have
specified in its Borrowing Request. No Lender's obligation to
make any Loan shall be affected by any other Lender's failure to
make any Loan.
SECTION 2.4. Continuation and Conversion Elections.
-------------------------------------
By delivering a Continuation/Conversion Notice to the Agent on or
before 10:00 a.m., San Francisco time (as to Base Rate Loans) or
11:00 a.m., San Francisco time (as to LIBO Rate Loans), on a
Business Day, and subject to Schedule 2.9 with respect to Agreed
Alternative Currencies, the Borrower may from time to time
irrevocably elect that all, or any portion in an aggregate
minimum amount of $10,000,000 and an integral multiple of
$1,000,000, of any Loans be (i) on not less than five Business
Days' notice, converted into, or continued as, LIBO Rate Loans
denominated in an Offshore Currency other than Dollars, (ii) on
not less than three Business Days' notice, converted into, or
continued as, Dollar LIBO Rate Loans, or (iii) on the same
Business Day, be converted into, or continued as a Base Rate Loan
denominated in Dollars. In the absence of delivery of a
Continuation/Conversion Notice with respect to any LIBO Rate Loan
at least three Business Days before the last day of the then
current Interest Period with respect thereto, such LIBO Rate Loan
shall, on such last day, automatically convert to a Base Rate
Loan denominated in Dollars; provided, however, that (i) each
-------- -------
such conversion or continuation shall be pro rated among the
applicable outstanding Loans of all Lenders, and (ii) no portion
of the outstanding principal amount of any Loans may be continued
as, or be converted into, LIBO Rate Loans when any Default has
occurred and is continuing. Each delivery of a
Continuation/Conversion Notice shall constitute a certification
and warranty by the Borrower that on the date of delivery of such
notice no Default has occurred and is continuing. If prior to
the time of such continuation or conversion any matter certified
to by the Borrower by reason of the immediately preceding
sentence will not be true and correct at such time if then made,
the Borrower will immediately so notify the Agent. Except to the
extent, if any, that prior to the time of such continuation or
conversion the Agent shall have received written notice to the
contrary from the Borrower, such certification and warranty shall
be deemed to be made at the date of such continuation or
conversion as if then made.
SECTION 2.5. Funding. Each Lender may, if it so
-------
elects, fulfill its obligation to make, continue or convert LIBO
Rate Loans hereunder by causing one of its foreign branches or
Affiliates (or an international banking facility created by such
Lender) to make or maintain such LIBO Rate Loan; provided,
--------
however, that such LIBO Rate Loan shall nonetheless be deemed to
-------
have been made and to be held by such Lender, and the obligation
of the Borrower to repay such LIBO Rate Loan shall nevertheless
be to such Lender for the account of such foreign branch,
Affiliate or international banking facility. In addition, the
Borrower hereby consents and agrees that, for purposes of any
determination to be made for purposes of Sections 4.1, 4.2, 4.3,
------------ --- ---
4.4, or 4.5, it shall be conclusively assumed that each Lender
--- ---
elected to fund all LIBO Rate Loans by purchasing Applicable
Currency deposits in its LIBOR Office's interbank eurodollar
market.
SECTION 2.6. Notes. Each Lender's Revolving Loans
-----
shall be evidenced by a Revolving Note payable to the order of
such Lender in a maximum principal amount equal to such Lender's
Percentage of the original Revolving Loan Commitment Amount.
Each Lender's Money Market Loans shall be evidenced by a Money
Market Note payable to the order of such Lender in a maximum
principal amount equal to an amount to be agreed upon from time
to time between the Borrower and each Lender and recorded by the
Agent. The Borrower hereby irrevocably authorizes each Lender to
make (or cause to be made) appropriate notations on the grid
attached to such Lender's Notes (or on any continuation of such
grid), which notations, if made, shall evidence, inter alia, the
----- ----
date of the outstanding principal of, the Applicable Currency of,
and the interest rate and Interest Period applicable to the Loans
evidenced thereby. Such notations shall be binding on the
Borrower absent clear and convincing evidence to the contrary;
provided, however, that the failure of any Lender to make any
-------- -------
such notations shall not limit or otherwise affect any
Obligations of the Borrower.
SECTION 2.7. Increase in Revolving Loan Commitment
-------------------------------------
Amount. (a) The Borrower may from time to time, by notice to
------
the Agent (which shall promptly deliver a copy to each of the
Lenders), request that the Revolving Loan Commitment Amount be
increased by an amount that is not less than $50,000,000 and will
not result in the Revolving Loan Commitment Amount exceeding
$600,000,000. Each such notice shall set forth the requested
amount of the increase in the Revolving Loan Commitment Amount
and the date on which such increase is to become effective (which
shall be not fewer than 30 days after the date the Agent receives
such notice (the "Receipt Date")), and shall offer each Lender
the opportunity to increase its Revolving Loan Commitment by its
Percentage of the requested increase in the Revolving Loan
Commitment Amount.
(b) Each Lender shall, by notice to the Borrower and
the Agent given not more than 15 days after the Receipt Date,
either agree to increase its Revolving Loan Commitment by all or
a portion of the offered amount or decline to increase its
Revolving Loan Commitment (and any Lender that does not deliver
such a notice within such period of 15 days shall be deemed to
have declined to increase its Revolving Loan Commitment).
(c) In the event that, by the 15th day after Receipt
Date, all Lenders have not agreed to increase their Revolving
Loan Commitment by their Percentage thereof, the Borrower shall
have the right to arrange for one or more banks (any such bank
being called an "Augmenting Lender"), which may include any
Lender, to extend Revolving Loan Commitments or increase their
existing Revolving Loan Commitments in an aggregate amount equal
to the unsubscribed amount, provided that each Augmenting Lender,
if not already a Lender hereunder, shall be subject to the
approval of the Borrower and the Agent (which approval shall not
be unreasonably withheld) and shall execute all such
documentation as the Agent shall specify to evidence its status
as a Lender hereunder; provided, further, that, after giving
-------- -------
effect to such increase, no Lender or Augmenting Lender shall
hold more than 20% of the Revolving Loan Commitment Amount. If
(and only if) Lenders (including Augmenting Lenders) shall have
agreed to increase their Commitments or to extend new Commitments
in an aggregate amount not less than $50,000,000, shall such
increases and such new Commitments become effective on the date
specified in subsection (e) below.
(d) Any increase in the Revolving Loan Commitment
Amount (or in the Revolving Loan Commitment of any Lender) shall
become effective under this Section 2.7 upon satisfaction of the
following conditions:
(i) all conditions set forth in Sections 6.1.1(a)
and (b), 6.1.2, 6.2.1 and 6.2.3 shall be satisfied
(with all references in such Section to the initial
Credit Extension being deemed to be references to such
increase) and the Agent shall have received a
certificate with respect to Section 6.2.1 to that
effect dated such date and executed by an Authorized
Representative; and
(ii) if the Percentages of the Lenders would
change because of such increase (by reason of not all
Lenders increasing their respective Commitments on a
pro rata basis) and any LIBO Rate Loans are
outstanding, all LIBO Rate Loans shall have been paid
or prepaid effective as of the date the Revolving Loan
Commitment Amount is to be increased (and the Borrower
shall pay to any Lender, in accordance with Section
4.5, any amounts of the type referred to in Section 4.5
as they relate to any such prepayment).
(e) Upon satisfaction of all applicable conditions set
forth in subsection (d) above, the Revolving Loan Commitment
Amount shall be deemed increased, with no further action required
on the part of any party, as of the date specified in the
Borrower's original notice requesting such increase, or, in the
case that subsection (d)(ii) is applicable, on such other date
selected, with the consent of the Borrower and all Lenders, so as
to minimize or eliminate amounts payable pursuant to Section 4.5.
In connection with such increase, the Agent shall distribute a
new Schedule 2.1, which shall be deemed to amend and restate the
existing Schedule 2.1.
SECTION 2.8. Money Market Borrowings.
-----------------------
(a) Money Market Option. In addition to
-------------------
requesting that Loans be made pursuant to Section 2.1,
-----------
the Borrower may, as set forth in this Section, request
the Lenders to make offers to make Money Market Loans
in any Offshore Currency to the Borrower. The Lenders
may, but shall have no obligation to, make such offers
and the Borrower may, but shall have no obligation to,
accept any such offers in the manner set forth in this
Section.
(b) Money Market Quote Request. When the
--------------------------
Borrower wishes to request offers to make Money Market
Loans under this Section, it shall notify the Agent by
telephone, and transmit to the Agent promptly by
facsimile transmission, a Money Market Quote Request
substantially in the form of Exhibit G hereto so as to
---------
be received no later than 11:00 a.m. (San Francisco
time) on or before (x) the fifth Business Day prior to
the date of Borrowing proposed therein, in the case of
a LIBOR Auction or (y) the Business Day next preceding
the date of Borrowing proposed therein, in the case of
an Absolute Rate Auction (or, in either case, such
other time or date as the Borrower and the Agent shall
have mutually agreed and shall have notified the
Lenders not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute
Rate Auction for which such change is to be effective)
specifying:
(i) the proposed day of Borrowing, which
shall be a Business Day,
(ii) the aggregate amount of such Borrowing,
which shall be $10,000,000 or a larger multiple of
$1,000,000 and the Offshore Currency of such
Borrowing,
(iii) the duration of the Interest Period
applicable thereto, subject to the provisions of
the definition of Interest Period, and
(iv) whether the Money Market Quotes
requested are to set forth a Money Market Margin
or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market
Loans for more than one Interest Period in a single
Money Market Quote Request. No Money Market Quote
Request shall be given within five Business Days of any
other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly
----------------------------------
upon receipt of a Money Market Quote Request, the Agent
shall send to the Lenders by facsimile transmission an
Invitation for Money Market Quotes substantially in the
form of Exhibit H hereto, which shall constitute an
---------
invitation by the Borrower to each Lender to submit
Money Market Quotes offering to make the Money Market
Loans to which such Money Market Quote Request relates
in accordance with this Section.
(d) Submission and Contents of Money Market
---------------------------------------
Quotes.
------
(i) Each Lender may submit a Money Market
Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for
Money Market Quotes. Each Money Market Quote must
comply with the requirements of this subsection
----------
(d) and must be submitted to the Agent by
---
facsimile transmission at its offices specified in
or pursuant to Section 11.2 not later than (x)
------------
noon (San Francisco time) on the fourth Business
Day prior to the proposed date of Borrowing, in
the case of a LIBOR Auction or (y) 7:30 a.m. (San
Francisco time) on the proposed date of Borrowing,
in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the
Borrower and the Agent shall have mutually agreed
and shall have notified the Lenders not later than
the date of the Money Market Quote Request for the
first LIBOR Auction or Absolute Rate Auction for
which such change is to be effective); provided
--------
that Money Market Quotes submitted by the Agent
(or any Affiliate of the Agent) in the capacity of
a Lender may be submitted, and may only be
submitted, if the Agent or such Affiliate notifies
the Borrower of the terms of the offer or offers
contained therein not later than (x) 15 minutes
prior to the deadline for the other Lenders, in
the case of a LIBOR Auction or (y) 15 minutes
prior to the deadline for the other Lenders, in
the case of an Absolute Rate Auction. Subject to
Articles VI and IX, any Money Market Quote so made
----------- --
shall be irrevocable except with the written
consent of the Agent given on the instructions of
the Borrower.
(ii) Each Money Market Quote shall be in
substantially the form of Exhibit I hereto and
---------
shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount and Offshore
Currency of the Money Market Loan for which
each such offer is being made, which
principal amount (w) may be greater than,
equal to or less than the Commitment of the
quoting Lender, (x) must be $5,000,000 or a
larger multiple of $1,000,000, (y) may not
exceed the principal amount of Money Market
Loans for which offers were requested and (z)
may be subject to an aggregate limitation as
to the principal amount of Money Market Loans
for which offers being made by such quoting
Lender may be accepted,
(C) in the case of a LIBOR Auction, the
margin above or below the applicable LIBO
Rate (Reserve Adjusted) (the "Money Market
------------
Margin") offered for each such Money Market
------
Loan, expressed as a percentage (specified to
the nearest 1/10,000th of 1%) to be added to
or subtracted from such base rate,
(D) in the case of an Absolute Rate
Auction, the rate of interest per annum
(specified to the nearest 1/10,000th of 1%)
(the "Money Market Absolute Rate") offered
--------------------------
for each such Money Market Loan, and
(E) the identity of the quoting Lender.
A Money Market Quote may set forth up to three separate
offers by the quoting Lender with respect to each
Interest Period specified in the related Invitation for
Money Market Quotes.
(iii) Any Money Market Quote shall be
disregarded if it:
(A) is not substantially in conformity
with Exhibit I hereto or does not specify all
---------
of the information required by Section
-------
2.8(d)(ii);
----------
(B) contains qualifying, conditional or
similar language;
(C) proposes terms other than or in
addition to those set forth in the applicable
Invitation for Money Market Quotes; or
(D) arrives after the time set forth in
Section 2.8(d)(i).
-----------------
(e) Notice to Borrower. The Agent shall promptly
------------------
notify the Borrower of the terms (x) of any Money
Market Quote submitted by a Lender that is in
accordance with subsection (d) and (y) of any Money
--------------
Market Quote that amends, modifies or is otherwise
inconsistent with a previous Money Market Quote
submitted by such Lender with respect to the same Money
Market Quote Request. Any such subsequent Money Market
Quote shall be disregarded by the Agent unless such
subsequent Money Market Quote is submitted solely to
correct a manifest error in such former Money Market
Quote. The Agent's notice to the Borrower shall
specify (A) the aggregate principal amount of Money
Market Loans for which offers have been received for
each Interest Period specified in the related Money
Market Quote Request, (B) the respective principal
amounts and Money Market Margins, or Money Market
Absolute Rates, as the case may be, so offered and (C)
if applicable, limitations on the aggregate principal
amount of Money Market Loans for which offers in any
single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later
---------------------------------
than (x) 11:00 a.m. (San Francisco time) on the third
Business Day prior to the proposed date of Borrowing,
in the case of a LIBOR Auction or (y) 8:30 a.m. (San
Francisco time) on the proposed date of Borrowing, in
the case of an Absolute Rate Auction (or, in either
case, such other time or date as the Borrower and the
Agent shall have mutually agreed and shall have
notified the Lenders not later than the date of the
Money Market Quote Request for the first LIBOR Auction
or Absolute Rate Auction for which such change is to be
effective), the Borrower shall notify the Agent of its
acceptance or non-acceptance of the offers so notified
to it pursuant to Section 2.8(e). In the case of
--------------
acceptance, such notice (a "Notice of Money Market
----------------------
Borrowing") shall be in substantially the form of
---------
Exhibit J hereto and shall specify the aggregate
---------
principal amount of offers for each Interest Period
that are accepted. The Borrower may accept any Money
Market Quote in whole or in part; provided that:
--------
(i) the aggregate principal amount of each
Money Market Borrowing may not exceed the
applicable amount set forth in the related Money
Market Quote Request,
(ii) the principal amount of each Money
Market Borrowing must be $10,000,000 or a larger
multiple of $1,000,000,
(iii) acceptance of offers may only be made
on the basis of ascending Money Market Margins or
Money Market Absolute Rates, as the case may be,
and
(iv) the Borrower may not accept any offer
that is described in Section 2.8(d)(iii) or that
-------------------
otherwise fails to comply with the requirements of
this Agreement.
(g) Allocation by Agent. If offers are made by
-------------------
two or more Lenders with the same Money Market Margins
or Money Market Absolute Rates, as the case may be, for
a greater aggregate principal amount than the amount in
respect of which such offers are accepted for the
related Interest Period, the principal amount of Money
Market Loans in respect of which such offers are
accepted shall be allocated by the Agent among such
Lenders as nearly as possible (in multiples of
$1,000,000, as the Agent may deem appropriate) in
proportion to the aggregate principal amounts of such
offers. Determinations by the Agent of the amounts of
Money Market Loans shall be conclusive in the absence
of manifest error.
(h) Money Market Loans shall reduce availability
under the Revolving Loan Commitment Amount by the
amount of such Loans during the period which they are
outstanding; provided, however, that the making of a
-------- -------
Money Market Loan by a Lender shall not reduce such
Lender's Revolving Loan Commitment.
SECTION 2.9. Utilization of Revolving Commitments in
Offshore Currencies. ---------------------------------------
-------------------
(a) The Agent will determine the Dollar
Equivalent amount with respect to any (i) Borrowing comprised of
Offshore Currency Loans as of the date of the requested
Borrowing, (ii) outstanding Offshore Currency Loans as of the
last Business Day of each month, (iii) outstanding Offshore
Currency Loans as of any date they are to be redenominated as set
forth in this Section 2.9 or Section 4.1, (iv) Issuances of
----------- -----------
Letters of Credit in Offshore Currencies as of the requested
Issuance Date, (v) unreimbursed drawing on the date that it is
converted to a Revolving Loan pursuant to Section 5.1.2(b), and
(vi) outstanding L/C Obligations as of the last Business Day of
each month (each such date a "Computation Date").
----------------
(b) The Borrower shall be entitled to request
that Revolving Loans hereunder also be permitted to be made in
any other lawful currency constituting a eurocurrency, in
addition to the eurocurrencies specified in the definition of
"Offshore Currency" herein, that, in the opinion of all Lenders,
is at such time, freely traded in the offshore interbank foreign
exchange markets and is freely transferable and freely
convertible into Dollars (an "Agreed Alternative Currency"). The
---------------------------
Borrower may deliver to the Agent from time to time a request for
designation of Agreed Alternative Currencies. Upon receipt of
any such request, the Agent will promptly notify the Lenders
thereof, and each Lender will use its best efforts to respond to
such request within ten Business Days of receipt thereof. Each
Lender may reject or accept such request in its sole discretion,
and may specify any restrictions which may apply thereto,
including, without limitation, the duration of the period, if
any, for which the Borrower shall be entitled to request that
Revolving Loans be made in such eurocurrency. The Agent will
promptly notify the Borrower of the acceptance or rejection of
any such request, and, if accepted by all of the Lenders, will
circulate to each party to this Credit Agreement a revised
Schedule 2.9, setting forth the Agreed Alternative Currency, the
requirements for the submission of Notices of Borrowing and
Notices of Conversion/Continuation, if different from the
provisions of Section 2.3 or 2.4, and any other restrictions, if
any.
(c) Notwithstanding anything herein to the
contrary, during the existence of a Default or an Event of
Default, upon the request of the Required Lenders, all or any
part of any outstanding Offshore Currency Loans shall be
redenominated and converted into Base Rate Loans in Dollars with
effect from the last day of the Interest Period with respect to
any such Offshore Currency Loans. The Agent will promptly notify
the Borrower of any such redenomination and conversion request.
SECTION 2.10. Currency Exchange Fluctuations. Subject
------------------------------
to Section 4.5, if on any Computation Date the Agent shall have
-----------
determined that the aggregate Dollar Equivalent principal amount
of all Loans and all L/C Obligations then outstanding exceeds the
Revolving Loan Commitment Amount, due to a change in applicable
rates of exchange between Dollars and Offshore Currencies, then
----
the Agent shall give notice to the Borrower that a prepayment is
required under this Section 2.10, and the Borrower agrees
------------
thereupon promptly to make prepayments of Loans or Cash
Collateralize L/C Obligations such that, after giving effect to
such prepayment or Cash Collateralization, the aggregate Dollar
Equivalent amount of all Loans and L/C Obligations does not
exceed the Revolving Loan Commitment Amount.
SECTION 2.11. Judgment Currency. If for the purposes
-----------------
of obtaining judgment in any court it is necessary to convert a
sum due from the Borrower hereunder or under any of the Notes in
any Applicable Currency into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could
purchase the Applicable Currency with such other currency at the
Agent's lending office on the Business Day preceding that on
which final, non-appealable judgment is given. The obligations
of the Borrower in respect of any sum due to any Lender or the
Agent hereunder or under any Note shall, notwithstanding any
judgment in currency other than the Applicable Currency, be
discharged only to the extent that on the Business Day following
receipt by such Lender or the Agent (as the case may be) of any
sum adjudged to be so due in such other currency such Lender or
the Agent (as the case may be) may in accordance with normal,
reasonable banking procedures purchase the Applicable Currency
with such other currency. If the amount of the Applicable
Currency so purchased is less than the sum originally due to such
Lender or the Agent, as the case may be, in the Applicable
Currency, the Borrower agrees, to the fullest extent that it may
effectively do so, as a separate obligation and notwithstanding
any such judgment, to indemnify such Lender or the Agent, as the
case may be, against such loss and if the amount of the
Applicable Currency so purchased exceeds (a) the sum originally
due to any Lender or the Agent, as the case may be, in the
Applicable Currency and (b) any amounts shared with other Lenders
as a result of allocations of such excess as a disproportionate
payment to such Lender, such Lender or the Agent, as the case may
be, agrees to remit such excess to the Borrower.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments. The
--------------------------
Borrower shall repay in full the unpaid principal amount of each
Loan in the Applicable Currency on the Revolving Loan Commitment
Termination Date.
SECTION 3.1.1. Payment Terms. Prior to the Revolving
-------------
Loan Commitment Termination Date, the Borrower
(a) may, from time to time on any Business Day,
make a voluntary prepayment, in whole or in part,
without premium or penalty, of the outstanding
principal amount of any Revolving Loans in the
Applicable Currency; provided, however, that
-------- -------
(i) any such prepayment shall be made pro
---
rata among Loans of the same type and, if
----
applicable, having the same Interest Period of all
Lenders;
(ii) any such prepayment of any LIBO Rate
Loan made on any day other than the last day of
the Interest Period for such Loan shall be subject
to the provisions of Section 4.5;
-----------
(iii) all such voluntary prepayments of
Revolving Loans shall require at least three but
no more than seven Business Days' prior written
notice to the Agent; and
(iv) all such voluntary partial prepayments
of Revolving Loans shall be in an aggregate
minimum amount of $5,000,000 and an integral
multiple of $1,000,000.
(b) shall, on each date when any reduction in the
Revolving Loan Commitment Amount shall become
effective, make a mandatory prepayment of all Revolving
Loans and/or Cash Collateralize the Letters of Credit,
equal to the excess, if any, of the aggregate,
outstanding principal amount of all Revolving Loans,
all L/C Obligations and all Money Market Loans over the
Revolving Loan Commitment Amount as so reduced;
(c) shall, on each date when a prepayment is
required pursuant to Section 2.10, make a mandatory
prepayment of Loans, and/or Cash Collateralize the
Letters of Credit, in an amount equal to the excess of
the aggregate outstanding principal amount of all
Revolving Loans, all L/C Obligations and all Money
Market Loans over the Revolving Loan Commitment Amount;
and
(d) shall, immediately upon any acceleration of
any Loans pursuant to Section 9.2 or Section 9.3, repay
----------- -----------
all Loans, and Cash Collateralize all Letters of
Credit, unless, pursuant to Section 9.3, only a portion
-----------
of all Loans is so accelerated.
Each prepayment of any Loans made pursuant to this Section 3.1.1
-------------
shall be without premium or penalty, except as may be required by
Section 4.5. No voluntary prepayment of principal of any
-----------
Revolving Loans shall cause a reduction in the Revolving Loan
Commitment Amount. Money Market Loans may not be voluntarily
prepaid under any circumstances.
SECTION 3.2. Interest Provisions. Interest on the
-------------------
outstanding principal amount of Loans shall accrue and be payable
in accordance with this Section 3.2.
-----------
SECTION 3.2.1. Rates. Pursuant to an appropriately
-----
delivered Borrowing Request or Continuation/Conversion Notice,
the Borrower may elect that Loans comprising a Borrowing accrue
interest at a rate per annum:
(a) on that portion maintained from time to time
as a Base Rate Loan, equal to the Alternate Base Rate
from time to time in effect;
(b) on that portion maintained as a LIBO Rate
Loan, during each Interest Period applicable thereto,
equal to the sum of the LIBO Rate for such Interest
Period plus the Applicable Margin; and
(c) on that portion maintained as a Money Market
Loan, during each Interest Period applicable thereto,
equal to (i) in the case of a Money Market Absolute
Rate Loan, the Money Market Absolute Rate, or (ii) in
the case of a Money Market LIBOR Loan, the sum of the
LIBO Rate plus the Money Market Margin.
"LIBO Rate" means, for each Interest Period for each
---------
LIBO Rate Loan and Money Market LIBOR Loan in the Applicable
Currency, and subject to Schedule 2.9 with respect to Agreed
Alternative Currencies, the interest rate per annum (rounded, if
necessary, to the nearest whole multiple of 1/100 of 1%)
determined by the Agent as of 11:00 A.M. (London time) on such
Business Day, with respect to Loans denominated in pounds
Sterling, or two Business Days with respect to Loans denominated
in any other Applicable Currency, before the first day of such
Interest Period quoted as the British Bankers' Association
Interest Settlement Rate ("BBAIRS") for such date, provided that
--------
if quotations are not given by BBAIRS for periods comparable to
such Interest Period, the LIBO Rate shall be the interest rate
per annum at which Applicable Currency deposits in immediately
available funds are offered to the Agent in the London interbank
market at approximately 11:00 A.M. (London time) on such Business
Day, with respect to Loans denominated in pounds Sterling, or two
Business Days with respect to Loans denominated in any other
Applicable Currency, before the first day of such Interest
Period, for a period comparable to such Interest Period, and in
an amount substantially equal to the amount of the proposed LIBO
Rate Loan or Money Market LIBOR Loan. Notwithstanding any other
provision hereof, at such time as there shall exist for any
Lender a LIBOR Reserve Percentage which is greater than zero, the
LIBO Rate used in the determination of LIBO Rate Loans and Money
Market LIBOR Loans made by such Lender shall be the LIBO Rate
(Reserve Adjusted).
All LIBO Rate Loans and Money Market LIBOR Loans shall
bear interest from and including the first day of the applicable
Interest Period to (but not including) the last day of such
Interest Period at the interest rate determined as applicable to
such LIBO Rate Loan and Money Market LIBOR Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any
-------------------
principal amount of any Loan is due and payable (whether on the
Revolving Loan Commitment Termination Date, upon acceleration or
otherwise), or after any other monetary Obligation of the
Borrower shall have become due and payable, the Borrower shall
pay, but only to the extent permitted by law, interest (after as
well as before judgment) on such amounts at a rate per annum
equal to the Alternate Base Rate plus a margin of 1% until such
amount is paid in full.
SECTION 3.2.3. Payment Dates. Interest accrued on each
-------------
Loan shall be payable in the Applicable Currency of the
respective Loan, without duplication:
(a) on the Revolving Loan Commitment Termination
Date;
(b) on the date of any payment or prepayment, in
whole or in part, of principal outstanding on such Loan
(other than a Base Rate Loan);
(c) on the date of any payment of principal on
any Money Market Loan;
(d) with respect to Base Rate Loans, on each
Quarterly Payment Date occurring after the date of the
initial Borrowing hereunder;
(e) with respect to LIBO Rate Loans and Money
Market LIBOR Loans, the last day of each applicable
Interest Period (and, if such Interest Period shall
exceed three months, on the day three months after such
Loan is made or continued); and
(f) on that portion of any Loans which is
accelerated pursuant to Section 9.2 or Section 9.3,
----------- -----------
immediately upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising
under this Agreement or any other Loan Document after the date
such amount is due and payable (whether on the Revolving Loan
Commitment Termination Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.2.4. Interest Rate Determination. The Agent
---------------------------
shall determine the interest rate applicable to Revolving Loans
and shall give prompt notice to the Borrower and the Lenders of
such determination, and its determination thereof shall be
conclusive in the absence of manifest error.
SECTION 3.3. Fees. The Borrower agrees to pay the
----
fees set forth in this Section 3.3.
-----------
SECTION 3.3.1. Facility Fee. The Borrower agrees to
------------
pay to the Agent, for the ratable account of each Lender, a
facility fee at the rate per annum based on the Borrower's Debt
Rating determined as provided in the definition of "Applicable
Margin" on the Revolving Loan Commitment Amount. Such fee shall
be payable pro rata for the period since either the Effective
Date or the last Quarterly Payment Date, whichever is applicable,
by the Borrower in arrears on each Quarterly Payment Date,
commencing with the first such day following the Effective Date,
and on the Revolving Loan Commitment Termination Date.
SECTION 3.3.2. Agent's Fee. To the Agent and the
-----------
Arranger for their own accounts, the fees, as agreed to in the
letter dated September 12, 1996 between the Agent, the Arranger
and the Borrower.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any
--------------------------
Lender shall reasonably determine (which determination shall,
upon notice thereof to the Borrower and the Agent, be conclusive
and binding on the Borrower) that the introduction of or any
change in or in the interpretation of any law, rule or regulation
makes it unlawful, or any central bank or other governmental
authority or comparable agency asserts that it is unlawful, for
such Lender to make, continue or maintain any Loan as, or to
convert any Loan into, a LIBO Rate Loan, the obligations of such
Lender to make, continue, maintain or convert any such Loans
shall, unless replaced by Money Market Absolute Rate Loans, upon
such determination, forthwith be suspended until such Lender
shall notify the Agent that the circumstances causing such
suspension no longer exist, and all LIBO Rate Loans of such
Lender shall automatically convert into Base Rate Loans at the
end of the then current Interest Periods with respect thereto or
sooner, if required by such law or assertion. In the case of
Offshore Currency Loans, the Borrowing shall be in an aggregate
amount equal to the Dollar Equivalent amount of the Offshore
Currency Loan, and shall be redenominated and converted into
Revolving Loans in Dollars as of the last day of the related
Interest Period for such Offshore Currency Loan, subject to the
provisions of Section 2.4 hereof.
SECTION 4.2. Inability to Determine Rates or Make or
---------------------------------------
Continue Offshore Currency Loans.
--------------------------------
(a) If the Agent shall have determined that by
reason of circumstances affecting the Agent's relevant market,
adequate means do not exist for ascertaining the interest rate
applicable hereunder to LIBO Rate Loans of such type in an
Offshore Currency, then, upon notice from the Agent to the
Borrower and the Lenders, the obligations of all Lenders under
Section 2.3 and Section 2.4 to make or continue any Loans as, or
----------- -----------
to convert any Loans into, LIBO Rate Loans in such Offshore
Currency shall forthwith be suspended until the Agent shall
notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.
(b) If any Lender shall reasonably determine that
by reason of circumstances affecting such Lender's relevant
market, that such Lender cannot make, continue or convert
Revolving Loans in any Offshore Currency, it shall promptly, but
not more than one Business Day after receipt of a Notice of
Borrowing or Continuation/Conversion, notify the Agent thereof,
whereupon, upon notice from the Agent to the Borrower and the
Lenders, the obligations of all Lenders under Section 2.3 or
-----------
Section 2.4 to make, continue or convert any Loans in such
-----------
Offshore Currency shall forthwith be suspended until the Agent
shall have received notice from such Lender, and notified the
Borrower and the Lenders, that the circumstances causing such
suspension no longer exist.
SECTION 4.3. Increased LIBO Rate Loan and Offshore
-------------------------------------
Currency Loan Costs. If after the date hereof, the adoption of
-------------------
any applicable law, rule or regulation, or any change therein, or
any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance
by any Lender (or its LIBOR office) with any request or directive
(whether or not having the force of law) of any such authority,
central bank or comparable agency shall increase the cost to such
Lender of, or result in any reduction in the amount of any sum
receivable by such Lender in respect of, making, continuing or
maintaining (or of its obligation to make, continue or maintain)
any Loans as, or of converting (or of its obligation to convert)
any Loans into, LIBO Rate Loans or Offshore Currency Loans, then
the Borrower agrees to pay to the Agent for the account of each
Lender the amount of any such increase or reduction. Such Lender
shall promptly notify the Agent and the Borrower in writing of
the occurrence of any such event, such notice to state, in
reasonable detail, the reasons therefor and the additional amount
required fully to compensate such Lender for such increased cost
or reduced amount. Such additional amounts shall be payable by
the Borrower directly to such Lender within ten Business Days of
its receipt of such notice, and such notice shall be binding on
the Borrower absent clear and convincing evidence to the
contrary.
SECTION 4.4. Obligation to Mitigate. Each Lender
----------------------
agrees that as promptly as practicable after it becomes aware of
the occurrence of an event that would entitle it to give notice
pursuant to Section 4.1, 4.3 or 4.6, and in any event if so
-----------------------
requested by the Borrower, each Lender shall use reasonable
efforts to make, fund or maintain its affected Loans through
another lending office if as a result thereof the increased costs
would be avoided or materially reduced or the illegality would
thereby cease to exist and if, in the reasonable opinion of such
Lender, the making, funding or maintaining of such Loans through
such other lending office would not in any material respect be
disadvantageous to such Lender, contrary to such Lender's normal
banking practices or violate any applicable law or regulation.
No change by a Lender in its Domestic Office or LIBOR Office made
for such Lender's convenience shall result in any increased cost
to the Borrower. The Borrower shall not be obligated to
compensate any Lender for the amount of any additional amount
pursuant to Section 4.1, 4.3 or 4.6 accruing prior to the date
-----------------------
which is 90 days before the date on which such Lender first
notifies the Borrower that it intends to claim such compensation;
it being understood that the calculation of the actual amounts
may not be possible within such period and that such Lender may
provide such calculation as soon as reasonably practicable
thereafter without affecting or limiting the Borrower's payment
obligation thereunder. If any Lender demands compensation
pursuant to Section 4.1, 4.3 or 4.6 with respect to any LIBO Rate
-----------------------
Loan, the Borrower may, at any time upon at least one Business
Day's prior notice to such Lender through the Agent, elect to
convert such Loan into a Base Rate Loan. Thereafter, unless and
until such Lender notifies the Borrower that the circumstances
giving rise to such notice no longer apply, all such LIBO Rate
Loans by such Lender shall bear interest as Base Rate Loans,
notwithstanding any prior election by the Borrower to the
contrary. If such Lender notifies the Borrower that the
circumstances giving rise to such notice no longer apply, the
Borrower may elect that the principal amount of each such Loan
again bear interest as LIBO Rate Loans in accordance with this
Agreement, on the first day of the next succeeding Interest
Period applicable to the related LIBO Rate Loans of other
Lenders. Additionally, the Borrower may, at its option, upon at
least five Business Days' prior notice to such Lender, elect to
prepay in full, without premium or penalty, such Lender's
affected LIBO Rate Loans. If the Borrower elects to prepay any
Loans pursuant to this Section 4.4, the Borrower shall pay within
-----------
ten Business Days' after written demand any additional increased
costs of such Lender accruing for the period prior to such date
of prepayment. If such conversion or prepayment is made on a day
other than the last day of the current Interest Period for such
affected LIBO Rate Loans, such Lender shall be entitled to make a
request for, and the Borrower shall pay, compensation under
Section 4.5.
-----------
SECTION 4.5. Funding Losses. In the event any Lender
--------------
shall incur any loss or expense (including any loss or expense
incurred by reason of the liquidation or reemployment of deposits
or other funds acquired by such Lender to make, continue or
maintain any portion of the principal amount of any Loan as, or
to convert any portion of the principal amount of any Loan into,
a LIBO Rate Loan) as a result of
(a) any conversion or repayment or prepayment of
the principal amount of any LIBO Rate Loans on a date
other than the scheduled last day of the Interest
Period applicable thereto, whether pursuant to Section
3.1 or otherwise; -------
---
(b) Borrower's failure to borrow any LIBO Rate
Loans or Money Market LIBOR Loans in accordance with
the Borrowing Request or Notice of Money Market
Borrowing therefor; or
(c) any Loans not being continued as, or
converted into, LIBO Rate Loans in accordance with the
Continuation/Conversion Notice therefor,
then, upon the written notice of such Lender to the Borrower
(with a copy to the Agent), the Borrower shall, within five
Business Days of its receipt thereof, pay directly to such Lender
such amount as will (in the reasonable determination of such
Lender) reimburse such Lender for such loss or expense. Such
written notice (which shall include calculations in reasonable
detail) shall be binding on the Borrower absent clear and
convincing evidence to the contrary.
SECTION 4.6. Increased Capital Costs. If after the
-----------------------
date hereof any change in, or the introduction, adoption,
effectiveness, interpretation, reinterpretation or phase-in of,
any applicable law or regulation, directive, guideline, decision
or request (whether or not having the force of law) of any court,
central bank, regulator or other governmental authority affects
the amount of capital required to be maintained by any Lender,
and such Lender reasonably determines that the rate of return on
its capital as a consequence of the Letters of Credit, its
Revolving Loan Commitment or the Loans made by such Lender is
reduced to a level below that which such Lender could have
achieved but for the occurrence of any such circumstance, then,
in any such case upon notice from time to time by such Lender to
the Borrower, the Borrower shall immediately pay directly to such
Lender additional amounts sufficient to compensate such Lender
for such reduction in rate of return. A statement of such Lender
as to any such additional amount or amounts (including
calculations thereof in reasonable detail) shall be binding on
the Borrower absent clear and convincing evidence to the
contrary.
SECTION 4.7. Taxes. All payments by the Borrower of
-----
principal of, and interest on, the Loans and all other amounts
payable hereunder shall be made free and clear of and without
deduction for any present or future income, excise, stamp or
franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing
authority, but excluding franchise taxes and taxes imposed on or
measured by any Lender's net income, receipts, net worth or
shareholders' capital (such non-excluded items being called
"Taxes"). In the event that any withholding or deduction from
-----
any payment to be made by the Borrower hereunder is required in
respect of any Taxes pursuant to any applicable law, rule or
regulation, then the Borrower will
(a) pay directly to the relevant authority the
full amount required to be so withheld or deducted;
(b) within 30 days after such payment forward to
the Agent an official receipt or other documentation
satisfactory to the Agent evidencing such payment to
such authority; and
(c) pay to the Agent for the account of the
Lenders such additional amount or amounts as is
necessary to ensure that the net amount actually
received by each Lender will equal the full amount such
Lender would have received had no such withholding or
deduction been required.
Moreover, if any Taxes are directly asserted against the Agent or
any Lender with respect to any payment received by the Agent or
such Lender hereunder, the Agent or such Lender may pay such
Taxes and, upon receipt of notice from the Agent or such Lender
within thirty (30) days after such payment, the Borrower will
promptly pay such additional amounts (including any penalties,
interest or expenses which are not attributable solely to the
actions or inactions of the Agent or such Lender) as is necessary
in order that the net amount received by such person after the
payment of such Taxes (including any Taxes on such additional
amount) shall equal the amount such person would have received
had not such Taxes been asserted.
If the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Agent, for
the account of the respective Lenders, the required receipts or
other required documentary evidence, the Borrower shall indemnify
the Lenders for any incremental Taxes, interest or penalties that
may become payable by any Lender as a result of any such failure.
For purposes of this Section 4.7, a distribution hereunder by the
-----------
Agent or any Lender to or for the account of any Lender shall be
deemed a payment by the Borrower.
Each Lender that is organized under the laws of a
jurisdiction other than the United States shall, prior to the due
date of any payments under the Notes, execute and deliver to the
Borrower and the Agent, on or about the first scheduled payment
date in each Fiscal Year, one or more (as the Borrower or the
Agent may reasonably request) United States Internal Revenue
Service Forms 4224 or Forms 1001 or such other forms or documents
(or successor forms or documents), appropriately completed, as
may be applicable to establish the extent, if any, to which a
payment to such Lender is exempt from withholding or deduction of
Taxes. Except with respect to liabilities arising from a change
in laws after the date hereof, no Lender shall be entitled to
receive additional amounts in respect of United States federal
income tax if such forms are inaccurate or not applicable as of
the Effective Date, or have not otherwise been provided to the
Borrower.
SECTION 4.8. Payments, Computations. Unless
----------------------
otherwise expressly provided, all payments by the Borrower
pursuant to this Agreement, the Notes or any other Loan Document
shall be made by the Borrower to the Agent for the pro rata
--- ----
account of the Lenders entitled to receive such payment. All
such payments required to be made to the Agent shall be made,
without setoff, deduction or counterclaim, not later than
11:00 a.m., San Francisco time, on the date due, in Same Day
Funds, to such account as the Agent shall specify from time to
time by notice to the Borrower; provided that such payment shall
--------
be deemed made timely if made by wire transfer and by such time
as an Authorized Representative has advised the Agent of the
applicable Federal Reserve System wire transfer confirmation
number. Funds received after that time shall be deemed to have
been received by the Agent on the next succeeding Business Day.
The Agent shall promptly remit in Same Day Funds to each Lender
its share, if any, of such payments received by the Agent for the
account of such Lender. All interest and fees shall be computed
on the basis of the actual number of days (including the first
day but excluding the last day) occurring during the period for
which such interest or fee is payable over a year comprised of
360 days (or, in the case of interest on a Base Rate Loan, 365
days or, if appropriate, 366 days). Whenever any payment to be
made shall otherwise be due on a day which is not a Business Day,
such payment shall (except as otherwise required by clause
------
(a)(iii) or (b)(i) of the definition of the term "Interest
-------- ------ --------
Period" with respect to LIBO Rate Loans) be made on the next
------
succeeding Business Day and such extension of time shall be
included in computing interest and fees, if any, in connection
with such payment.
SECTION 4.9. Sharing of Payments. If any Lender
-------------------
shall obtain any payment or other recovery (whether voluntary,
involuntary, by application of setoff or otherwise) on account of
any Committed Loan or any L/C Obligation (other than pursuant to
the terms of Sections 4.3, 4.4, 4.5, 4.6, and 4.7) in excess of
------------ --- --- --- ---
its pro rata share of payments then or therewith obtained by all
--- ----
Lenders holding Loans of such type, such Lender shall purchase
from the other Lenders such participations in Committed Loans
made by them as shall be necessary to cause such purchasing
Lender to share the excess payment or other recovery ratably with
each of them; provided, however, that if all or any portion of
-------- -------
the excess payment or other recovery is thereafter recovered from
such purchasing Lender, the purchase shall be rescinded and each
Lender which has sold a participation to the purchasing Lender
shall repay to the purchasing Lender the purchase price to the
ratable extent of such recovery together with an amount equal to
such selling Lender's ratable share (according to the proportion
of
(a) the amount of such selling Lender's required
repayment to the purchasing Lender
to
--
(b) 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 4.9 may, to the fullest extent
-----------
permitted by law, exercise all its rights of payment (including
pursuant to Section 4.10) with respect to such participation as
------------
fully as if such Lender were the direct creditor of the Borrower
in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives
a secured claim in lieu of a setoff to which this Section 4.9
-----------
applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders entitled under this
Section 4.9 to share in the benefits of any recovery on such
-----------
secured claim.
SECTION 4.10. Setoff. Each Lender shall, upon the
------
occurrence of any Event of Default described in clauses (a) or
-----------
(b) and, upon the occurrence of any Default described in clauses
--- -------
(c) through (d) of Section 9.1.9 with respect to the Borrower or,
--- --- -------------
with the consent of the Required Lenders, upon the occurrence and
continuance beyond the expiration of the applicable grace period,
if any, of any other Event of Default, have the right to
appropriate and apply to the payment of the Obligations owing to
it (whether or not then due), and (as security for such
Obligations) the Borrower hereby grants to each Lender a
continuing security interest in, any and all balances, credits,
deposits, accounts or moneys of the Borrower then or thereafter
maintained with such Lender or any bank controlling such Lender;
provided, however, that any such appropriation and application
-------- -------
shall be subject to the provisions of Section 4.9. Each Lender
-----------
agrees promptly to notify the Borrower and the Agent after any
such setoff and application made by such Lender; provided,
--------
however, that the failure to give such notice shall not affect
-------
the validity of such setoff and application. The rights of each
Lender under this Section 4.10 are in addition to other rights
------------
and remedies (including other rights of setoff under applicable
law or otherwise) which such Lender may have.
SECTION 4.11. Use of Proceeds. The Borrower shall
---------------
apply the proceeds of each Borrowing for general corporate
purposes; without limiting the foregoing, no proceeds of any Loan
will be used to acquire any "margin stock", as defined in F.R.S.
Board Regulation U.
ARTICLE V
THE LETTERS OF CREDIT
SECTION 5.1. The Letter of Credit Commitment. (a) On
-------------------------------
the terms and conditions set forth herein (i) the Issuing Bank
agrees, (A) from time to time on any Business Day during the
period from the Effective Date to the Revolving Loan Commitment
Termination Date to Issue Letters of Credit for the account of
the Borrower, and to amend or renew Letters of Credit previously
issued by it, in accordance with Section 5.1.1, and (B) to honor
-------------
drafts under the Letters of Credit; and (ii) the Lenders
severally agree to participate in Letters of Credit Issued for
the account of the Borrower; provided, that the Issuing Bank
--------
shall not be obligated to Issue, and no Lender shall be obligated
to participate in, any Letter of Credit if as of the date of
Issuance of such Letter of Credit (the "Issuance Date") (1) the
-------------
Dollar Equivalent of all L/C Obligations plus the Dollar
Equivalent of all Loans exceeds the Revolving Loan Commitment
Amount, or (2) the participation of any Lender in the Dollar
Equivalent of all L/C Obligations plus the Dollar Equivalent of
the Revolving Loans of such Lender exceeds such Lender's
Revolving Loan Commitment. Within the foregoing limits, and
subject to the other terms and conditions hereof, the Borrower's
ability to obtain Letters of Credit shall be fully revolving,
and, accordingly, the Borrower may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit which have
expired or which have been drawn upon and reimbursed.
(b) The Issuing Bank is under no obligation to
Issue any Letter of Credit if:
(i) any order, judgment or decree of any
governmental authority or arbitrator shall by its terms
purport to enjoin or restrain the Issuing Bank from
Issuing such Letter of Credit, or any requirement of
law applicable to the Issuing Bank or any request or
directive (whether or not having the force of law) from
any Governmental Authority with jurisdiction over the
Issuing Bank shall prohibit, or request that the
Issuing Bank refrain from, the Issuance of letters of
credit generally or such Letter of Credit in particular
or shall impose upon the Issuing Bank with respect to
such Letter of Credit any restriction, reserve or
capital requirement (for which the Issuing Bank is not
otherwise compensated hereunder) not in effect on the
Effective Date, or shall impose upon the Issuing Bank
any unreimbursed loss, cost or expense which was not
applicable on the Effective Date and which the Issuing
Bank in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(ii) the Issuing Bank has received written
notice from any Lender, the Agent or the Borrower, on
or prior to the Business Day prior to the requested
date of Issuance of such Letter of Credit, that one or
more of the applicable conditions contained in Section
6.2 is not then satisfied; -------
---
(iii) the expiry date of any requested
Letter of Credit is after the Revolving Loan Commitment
Termination Date;
(iv) any requested Letter of Credit is not in
form and substance acceptable to the Issuing Bank, or
the Issuance of a Letter of Credit shall violate any
applicable policies of the Issuing Bank in its sole
discretion;
(v) any standby Letter of Credit is for the
purpose of supporting the issuance of any letter of
credit by any other Person; or
(vi) such Letter of Credit is in a face
amount less than the Dollar Equivalent of $1,000,000 or
denominated in a currency other than Dollars or an
Offshore Currency.
SECTION 5.1.1. Issuance, Amendment and Renewal of
----------------------------------
Letters of Credit. (a) Each Letter of Credit shall be Issued
-----------------
upon the irrevocable written request of the Borrower received by
the Issuing Bank (with a copy sent by the Borrower to the Agent)
at least five Business Days (or such shorter time as the Issuing
Bank may agree in a particular instance in its sole discretion)
prior to the proposed date of Issuance. Each such request for
Issuance of a Letter of Credit shall be by facsimile, promptly
confirmed in writing, in the form of an L/C Application, and
shall specify in form and detail satisfactory to the Issuing
Bank: (i) the proposed date of Issuance of the Letter of Credit
(which shall be a Business Day); (ii) the face amount and
currency of the Letter of Credit; (iii) the expiry date of the
Letter of Credit; (iv) the name and address of the beneficiary
thereof; (v) any documents to be presented by the beneficiary of
the Letter of Credit in case of any drawing thereunder; (vi) the
full text of any certificate to be presented by the beneficiary
in case of any drawing thereunder; and (vii) such other matters
as the Issuing Bank may require. The Agent shall promptly notify
the Lenders of the receipt by it of any L/C Application.
(b) At least two Business Days prior to the
Issuance of any Letter of Credit, the Issuing Bank will confirm
with the Agent (by telephone or in writing) that the Agent has
received a copy of the L/C Application from the Borrower and, if
not, the Issuing Bank will provide the Agent with a copy thereof.
On or before the Business Day immediately preceding the date the
Issuing Bank is to issue a requested Letter of Credit, the Agent
will confirm to the Issuing Bank that (A) such issuance is then
permitted under Section 5.1; and (B) all conditions specified in
-----------
Section 6.2 are then satisfied. If the Agent shall have directed
-----------
the Issuing Bank to issue such Letter of Credit, then, subject to
the terms and conditions hereof, the Issuing Bank shall, on the
requested date, issue a Letter of Credit for the account of the
Borrower in accordance with the Issuing Bank's usual and
customary business practices.
(c) From time to time while a Letter of Credit is
outstanding and prior to the Revolving Loan Commitment
Termination Date, the Issuing Bank will, upon the written request
of the Borrower received by the Issuing Bank (with a copy sent by
the Borrower to the Agent) at least four Business Days (or such
shorter time as the Issuing Bank may agree in a particular
instance in its sole discretion) prior to the proposed date of
amendment, amend any Letter of Credit issued by it. Each such
request for amendment of a Letter of Credit shall be made by
facsimile, promptly confirmed in writing, made in the form of an
L/C Application and shall specify in form and detail satisfactory
to the Issuing Bank: (i) the Letter of Credit to be amended;
(ii) the proposed date of amendment of the Letter of Credit
(which shall be a Business Day); (iii) the nature of the proposed
amendment; and (iv) such other matters as the Issuing Bank may
require. The Issuing Bank shall be under no obligation to amend
any Letter of Credit if: (A) the Issuing Bank would have no
obligation at such time to issue such Letter of Credit in its
amended form under the terms of this Agreement; or (B) the
beneficiary of any such Letter of Credit does not accept the
proposed amendment to the Letter of Credit; or (C) the conditions
of Section 5.1(b) shall not have been met. On or before the
--------------
Business Day immediately preceding the date the Issuing Bank is
to amend a Letter of Credit, the Agent will confirm to the
Issuing Bank that (A) such amendment is then permitted under
Section 5.1; and (B) all conditions specified in Section 6.2 are
----------- -----------
then satisfied. The Agent shall promptly notify the Lenders of
the receipt by it of any L/C Application.
(d) The Issuing Bank and the Lenders agree that,
while a Letter of Credit is outstanding and prior to the
Revolving Loan Commitment Termination Date, at the option of the
Borrower and upon the written request of the Borrower received by
the Issuing Bank (with a copy sent by the Borrower to the Agent)
at least four Business Days (or such shorter time as the Issuing
Bank may agree in a particular instance in its sole discretion)
prior to the proposed date of notification of renewal, the
Issuing Bank shall be entitled to authorize the automatic renewal
of any Letter of Credit issued by it. Each such request for
renewal of a Letter of Credit shall be made by facsimile,
promptly confirmed in writing, in the form of an L/C Application,
and shall specify in form and detail satisfactory to the Issuing
Bank: (i) the Letter of Credit to be renewed; (ii) the proposed
date of notification of renewal of the Letter of Credit (which
shall be a Business Day); (iii) the revised expiry date of the
Letter of Credit; and (iv) such other matters as the Issuing Bank
may require. The Agent shall promptly notify the Lenders of the
receipt by it of any L/C Application. The Issuing Bank shall be
under no obligation so to renew any Letter of Credit if: (A) the
Issuing Bank would have no obligation at such time to issue or
amend such Letter of Credit in its renewed form under the terms
of this Agreement; or (B) the beneficiary of any such Letter of
Credit does not accept the proposed renewal of the Letter of
Credit; or (C) the conditions of Section 5.1(b) shall not have
--------------
been met. On or before the Business Day immediately preceding
the date the Issuing Bank is to renew a Letter of Credit, the
Agent will confirm to the Issuing Bank that (A) such renewal is
then permitted under Section 5.1; and (B) all conditions
-----------
specified in Section 6.2 are then satisfied. If any outstanding
-----------
Letter of Credit shall provide that it shall be automatically
renewed unless the beneficiary thereof receives notice from the
Issuing Bank that such Letter of Credit shall not be renewed, and
if at the time of renewal the Issuing Bank would be entitled to
authorize the automatic renewal of such Letter of Credit in
accordance with this Section 5.1.1(d) upon the request of the
----------------
Borrower but the Issuing Bank shall not have received any L/C
Application from the Borrower with respect to such renewal or
other written direction by the Borrower with respect thereto, the
Issuing Bank shall nonetheless be permitted to allow such Letter
of Credit to renew, and the Borrower and the Lenders hereby
authorize such renewal, and, accordingly, the Issuing Bank shall
be deemed to have received an L/C Application from the Borrower
requesting such renewal.
(e) The Issuing Bank may, at its election (or as
required by the Agent at the direction of the Required Lenders),
deliver any notices of termination or other communications to any
Letter of Credit beneficiary or transferee, and take any other
action as necessary or appropriate, at any time and from time to
time, in order to cause the expiry date of such Letter of Credit
to be a date not later than the Revolving Loan Commitment
Termination Date.
(f) This Agreement shall control in the event of
any conflict with any L/C Related Document (other than any Letter
of Credit).
(g) The Issuing Bank will also deliver to the
Agent, concurrently or promptly following its delivery of a
Letter of Credit, or amendment to or renewal of a Letter of
Credit, to an advising bank or a beneficiary, a true and complete
copy of each such Letter of Credit or amendment to or renewal of
a Letter of Credit.
SECTION 5.1.2. Risk Participations, Drawings and
Reimbursements. ---------------------------------
--------------
(a) Immediately upon the Issuance of each Letter
of Credit, each Lender shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the Issuing Bank a
participation in such Letter of Credit and each drawing
thereunder in an amount equal to the product of (i) the
Percentage of such Lender, times (ii) the maximum Dollar
Equivalent amount available to be drawn under such Letter of
Credit and the Dollar Equivalent amount of such drawing,
respectively. For purposes of Section 2.1, each Issuance of a
-----------
Letter of Credit shall be deemed to utilize the Revolving Loan
Commitment of each Lender by an amount equal to the Dollar
Equivalent amount of such participation.
(b) In the event of any request for a drawing
under a Letter of Credit by the beneficiary or transferee
thereof, the Issuing Bank will promptly notify the Borrower. The
Borrower shall reimburse the Issuing Bank prior to 10:00 a.m.
(San Francisco time), on each date that any amount is paid by the
Issuing Bank under any Letter of Credit (each such date, an
"Honor Date"), in the Applicable Currency and in an amount equal
----------
to the amount so paid by the Issuing Bank. In the event the
Borrower fails to reimburse the Issuing Bank for the full amount
of any drawing under any Letter of Credit by 10:00 a.m. (San
Francisco time) on the Honor Date, the Issuing Bank will promptly
notify the Agent and the Agent will promptly notify each Lender
thereof, and the Borrower shall be deemed to have requested that
Base Rate Loans be made by the Lenders to be disbursed on the
Honor Date under such Letter of Credit. Any notice given by the
Issuing Bank or the Agent pursuant to this Section 5.1.2(b) may
----------------
be oral if immediately confirmed in writing (including by
facsimile); provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding
effect of such notice.
(c) Each Lender shall upon any notice pursuant to
Section 5.1.2(b) make available to the Agent for the account of
----------------
the relevant Issuing Bank an amount in Dollars and in Same Day
Funds equal to its Percentage of the Dollar Equivalent amount of
the drawing, whereupon the participating Lenders shall (subject
to Section 5.1.2(e)) each be deemed to have made a Revolving Loan
----------------
consisting of a Base Rate Loan to the Borrower in that amount.
If any Lender so notified fails to make available to the Agent
for the account of the Issuing Bank the amount of such Lender's
Percentage of the amount of the drawing by no later than 12:00
noon (San Francisco time) on the Honor Date, then interest shall
accrue on such Lender's obligation to make such payment, from the
Honor Date to the date such Lender makes such payment, at a rate
per annum equal to the Federal Funds Rate in effect from time to
time during such period. The Agent will promptly give notice of
the occurrence of the Honor Date, but failure of the Agent to
give any such notice on the Honor Date or in sufficient time to
enable any Lender to effect such payment on such date shall not
relieve such Lender from its obligations under this Section
5.1.2. -------
-----
(d) With respect to any unreimbursed drawing that
is not converted into Revolving Loans in whole or in part, for
any reason whatsoever, the Borrower shall be deemed to have
incurred from the Issuing Bank an L/C Borrowing in the Dollar
Equivalent amount of such drawing, which L/C Borrowing shall be
due and payable on demand (together with interest) and shall bear
interest at a rate per annum equal to the Alternate Base Rate
plus 1% per annum, and each Lender's payment to the Issuing Bank
pursuant to Section 5.1.2 shall be deemed payment in respect of
-------------
its participation in such L/C Borrowing and shall constitute an
L/C Advance from such Lender in satisfaction of its participation
obligation under this Section 5.1.2.
-------------
(e) Each Lender's obligation in accordance with
this Agreement to make the Revolving Loans or L/C Advances, as
contemplated by this Section 5.1.2, as a result of a drawing
-------------
under a Letter of Credit, shall be absolute and unconditional and
without recourse to the Issuing Bank and shall not be affected by
any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have
against the Issuing Bank, the Borrower or any other Person for
any reason whatsoever; (ii) the occurrence or continuance of a
Default, an Event of Default or a Material Adverse Effect; or
(iii) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; provided,
--------
however, that each Lender's obligation to make Revolving Loans
under this Section 5.1.2 is subject to the conditions set forth
-------------
in Section 5.1.1.
-------------
SECTION 5.1.3. Repayment of Participations. (a) Upon
---------------------------
(and only upon) receipt by the Agent for the account of the
Issuing Bank of immediately available funds from the Borrower (i)
in reimbursement of any payment made by the Issuing Bank under
the Letter of Credit with respect to which any Lender has paid
the Agent for the account of the Issuing Bank for such Lender's
participation in the Letter of Credit pursuant to Section
-------
5.1.2(a) or (ii) in payment of interest thereon, the Agent will
--------
pay to each Lender, in the same funds as those received by the
Agent for the account of the Issuing Bank, the amount of such
Lender's Percentage of such funds, and the Issuing Bank shall
receive the amount of the Percentage of such funds of any Lender
that did not so pay the Agent for the account of the Issuing
Bank.
(b) If the Agent or the Issuing Bank is required
at any time to return to the Borrower, or to a trustee, receiver,
liquidator, custodian, or any official in any insolvency
proceeding, any portion of the payments made by the Borrower to
the Agent for the account of the Issuing Bank pursuant to Section
-------
5.1.2(a) in reimbursement of a payment made under the Letter of
--------
Credit or interest or fee thereon, each Lender shall, on demand
of the Agent, forthwith return to the Agent or the Issuing Bank
the amount of its Percentage of any amounts so returned by the
Agent or the Issuing Bank plus interest thereon from the date
such demand is made to the date such amounts are returned by such
Lender to the Agent or the Issuing Bank, at a rate per annum
equal to the Federal Funds Rate in effect from time to time.
SECTION 5.1.4. Role of the Issuing Bank. (a) Each
------------------------
Lender and the Borrower agree that, in paying any drawing under a
Letter of Credit, the Issuing Bank shall not have any
responsibility to obtain any document (other than any sight draft
and certificates if expressly required by the Letter of Credit)
or to ascertain or inquire as to the validity or accuracy of any
such document or the authority of the Person executing or
delivering any such document.
(b) No Agent-Related Person nor any of the
respective correspondents, participants or assignees of the
Issuing Bank shall be liable to any Lender for: (i) any action
taken or omitted in connection herewith at the request or with
the approval of the Lenders (including the Required Lenders, as
applicable); (ii) any action taken or omitted in the absence of
gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any
L/C Related Document.
(c) The Borrower hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with respect
to its use of any Letter of Credit; provided, however, that this
--------
assumption is not intended to, and shall not, preclude the
Borrower pursuing such rights and remedies as it may have against
the beneficiary or transferee at law or under any other
agreement. No Agent-Related Person, nor any of the respective
correspondents, participants or assignees of the Issuing Bank,
shall be liable or responsible for any of the matters described
in clauses (i) through (vii) of Section 5.1.5; provided, however,
------------- --------
anything in such clauses to the contrary notwithstanding, the
Borrower may have a claim against the Issuing Bank, and the
Issuing Bank may be liable to the Borrower, for such damages
suffered by the Borrower which the Borrower proves were caused by
the Issuing Bank's willful misconduct or gross negligence or the
Issuing Bank's willful failure to pay under any Letter of Credit
after the presentation to it by the beneficiary of a sight draft
and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in
limitation of the foregoing: (i) the Issuing Bank may accept
documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any
notice or information to the contrary; and (ii) the Issuing Bank
shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or
assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
SECTION 5.1.5. Obligations Absolute. The obligations
--------------------
of the Borrower under this Agreement and any L/C Related Document
to reimburse the Issuing Bank for a drawing under a Letter of
Credit, and to repay any L/C Borrowing and any drawing under a
Letter of Credit converted into Revolving Loans, shall be
unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement and each such other
L/C Related Document under all circumstances, including the
following:
(i) any lack of validity or enforceability
of this Agreement or any L/C Related Document;
(ii) any change in the time, manner or place
of payment of, or in any other term of, all or any of
the obligations of the Borrower in respect of any
Letter of Credit or any other amendment or waiver of or
any consent to departure from all or any of the
L/C Related Documents;
(iii) the existence of any claim, set-off,
defense or other right that the Borrower may have at
any time against any beneficiary or any transferee of
any Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the
Issuing Bank or any other Person, whether in connection
with this Agreement, the transactions contemplated
hereby or by the L/C Related Documents or any unrelated
transaction;
(iv) any draft, demand, certificate or other
document presented under any Letter of Credit proving
to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in
order to make a drawing under any Letter of Credit;
(v) any payment by the Issuing Bank under
any Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the
terms of any Letter of Credit; or any payment made by
the Issuing Bank under any Letter of Credit to any
Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative
of or successor to any beneficiary or any transferee of
any Letter of Credit, including any arising in
connection with any insolvency proceeding;
(vi) any exchange, release or non-perfection
of any collateral, or any release or amendment or
waiver of or consent to departure from any other
guarantee, for all or any of the obligations of the
Borrower in respect of any Letter of Credit; or
(vii) any other circumstance or happening
whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a
discharge of, the Borrower or a guarantor.
SECTION 5.2. Cash Collateral Pledge. Upon (i) the
----------------------
request of the Agent, (A) if the Issuing Bank has honored any
full or partial drawing request on any Letter of Credit and such
drawing has resulted in an L/C Borrowing hereunder, or (B) if, as
of the Revolving Loan Commitment Termination Date, any Letters of
Credit may for any reason remain outstanding and partially or
wholly undrawn, or (ii) the occurrence of the circumstances
requiring the Borrower to Cash Collateralize Letters of Credit,
then, the Borrower shall immediately Cash Collateralize the L/C
Obligations in an amount equal to such L/C Obligations in the
Applicable Currency, and the Borrower hereby grants to the Agent,
for the ratable benefit of the Lenders, a security interest in
such cash collateral.
SECTION 5.3. Letter of Credit Fees. The Borrower
---------------------
shall pay to the Agent for the ratable account of each of the
Lenders a letter of credit fee with respect to the Letters of
Credit at the rate per annum based on the Borrower's Debt Rating
determined as provided in the definition of "Applicable Margin"
for Financial Letters of Credit or Performance Letters of Credit,
as applicable, of the average daily maximum Dollar Equivalent
amount available to be drawn of the outstanding Letters of
Credit, computed on a quarterly basis in arrears on the last
Business Day of each calendar quarter based upon Letters of
Credit outstanding for that quarter as calculated by the Agent.
Such letter of credit fees shall be due and payable in Dollars
quarterly in arrears on the last Business Day of each calendar
quarter during which Letters of Credit are outstanding,
commencing on the first such quarterly date to occur after the
Effective Date, through the Revolving Loan Commitment Termination
Date (or such later date upon which the outstanding Letters of
Credit shall expire), with the final payment to be made on the
Revolving Loan Commitment Termination Date (or such later
expiration date).
SECTION 5.4. Issuance of Letters of Credit in
Offshore Currencies. --------------------------------
-------------------
(a) The Issuing Bank shall be under no obligation
to Issue any Letter of Credit denominated in an Offshore Currency
if the Agent has received notice from any of the Lenders by 2:00
p.m. (San Francisco time) four Business Days prior to the day of
such Issuance that the Issuing Bank cannot Issue, or any Lender
cannot purchase a participation in, such Letter of Credit in the
requested Offshore Currency, in which event the Agent will give
notice to the Borrower no later than 9:00 a.m. (San Francisco
time) on the third Business Day prior to the requested date of
such Issuance that the Issuance in the requested Offshore
Currency is not then available, and notice thereof also will be
given promptly by the Agent to the Issuing Bank and the Lenders.
If the Agent shall have so notified the Borrower, the request for
such Letter of Credit shall be deemed withdrawn.
(b) The Borrower shall be entitled to request
that Letters of Credit hereunder also be permitted to be Issued
in any Agreed Alternative Currency. The Borrower shall deliver
to the Agent any request for designation of an Agreed Alternative
Currency by not later than 9:00 a.m. (San Francisco time) at
least ten Business Days in advance of the date of any Letter of
Credit proposed to be Issued in such Agreed Alternate Currency.
Upon receipt of any such request the Agent will promptly notify
the Lenders thereof, and each Lender will use its best efforts to
respond to such request within two Business Days of receipt
thereof. Each Lender may reject or accept such request in its
sole discretion. The Agent will promptly notify the Borrower of
the acceptance or rejection of any such request.
SECTION 5.5. Uniform Customs and Practice. The
----------------------------
Uniform Customs and Practice for Documentary Credits as published
by the International Chamber of Commerce ("UCP") most recently at
---
the time of issuance of any Letter of Credit shall (unless
otherwise expressly provided in the Letters of Credit) apply to
the Letters of Credit.
SECTION 5.6. Additional and Successor Issuing Banks.
--------------------------------------
If (i) the credit rating on the unsecured long term indebtedness
of the Issuing Bank has been materially lowered, suspended or
withdrawn by the applicable rating agencies or (ii) the Issuing
Bank shall reasonably request, the Borrower may, with the written
consent of the Agent and the Required Banks, appoint an
additional Bank or Banks to act as Issuing Bank. Each additional
or successor Issuing Bank shall execute an instrument of
assumption in form and substance satisfactory to the Borrower,
the Agent and the Lenders, whereupon such Bank shall be deemed an
Issuing Bank for all purposes whatsoever pursuant to this
Agreement, and with all the rights, powers, obligations,
privileges and duties inuring thereto.
ARTICLE VI
CONDITIONS TO CREDIT EXTENSIONS
SECTION 6.1. Conditions to Effectiveness. This
---------------------------
Agreement shall become effective upon the prior or concurrent
satisfaction of each of the conditions precedent set forth in
this Section 6.1.
-----------
SECTION 6.1.1. Resolutions. The Agent shall have
-----------
received from the Borrower a certificate, substantially in the
form of Exhibit F hereto, dated the Effective Date, of its
Secretary or Assistant Secretary as to
(a) resolutions of its Board of Directors then in
full force and effect authorizing the execution,
delivery and performance of this Agreement, the Notes
and each other Loan Document to be executed by it;
(b) the incumbency and signatures of those of its
officers and representatives authorized to act with
respect to this Agreement, the Notes and each other
Loan Document executed by it; and
(c) the Borrower's articles of incorporation and
by-laws,
upon which certificate each Lender may conclusively rely until it
shall have received a further certificate of the Secretary of the
Borrower canceling or amending such prior certificate.
SECTION 6.1.2. Delivery of Notes. The Agent shall have
-----------------
received, for the account of each Lender, its Notes duly executed
and delivered by the Borrower.
SECTION 6.1.3. Opinions of Counsel. The Agent shall
-------------------
have received opinions, dated the Effective Date and addressed to
the Agent and all Lenders, from the Assistant General Counsel of
the Borrower, substantially in the form of Exhibit E hereto and
---------
given upon the express instruction of the Borrower.
SECTION 6.1.4. Closing Fees, Expenses. The Agent shall
----------------------
have received for its own account, or for the account of each
Lender, as the case may be, all fees, costs and expenses due and
payable pursuant to Sections 3.3 and 11.3, if invoiced at least
------------ ----
three Business Days before closing.
SECTION 6.1.5. Condition to Initial Credit Extension.
-------------------------------------
The obligation of each Lender to make the initial Credit
Extension shall be subject to the receipt by the Agent of
satisfactory assurances as to the provision for the repayment in
full of all obligations under the Existing Credit Agreement, and
termination thereof.
SECTION 6.2. All Credit Extensions. The obligation
---------------------
of each Lender to make any Credit Extension (including the
initial Credit Extension) shall be subject to the satisfaction of
each of the conditions precedent set forth in this Section 6.2.
-----------
SECTION 6.2.1. Representations and Warranties, No
------------------------------
Default. Both before and after giving effect to any Credit
-------
Extension (but, if any Default of the nature referred to in
Section 9.1.5 shall have occurred with respect to any other
-------------
Indebtedness, without giving effect to the application, directly
or indirectly, of the proceeds of such Borrowing) the following
statements shall be true and correct:
(a) the representations and warranties set forth
in Article VII shall be true and correct in all
-----------
material respects with the same effect as if then made
(unless stated to relate solely to an early date, in
which case such representations and warranties shall be
true and correct as of such earlier date); and
(b) no Default shall have then occurred and be
continuing.
SECTION 6.2.2. Borrowing Request. The Agent shall have
-----------------
received a Borrowing Request for such Borrowing. Each of the
delivery of a Borrowing Request and the acceptance by the
Borrower of the proceeds of such Borrowing shall constitute a
representation and warranty by the Borrower that on the date of
such Borrowing (both immediately before and after giving effect
to such Borrowing and the application of the proceeds thereof)
the statements made in Section 6.2.1 are true and correct.
-------------
SECTION 6.2.3. Satisfactory Legal Form. All documents
-----------------------
executed or submitted pursuant hereto by or on behalf of the
Borrower shall be satisfactory in form and substance to the Agent
and its counsel.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Agent to enter
into this Agreement and to make Loans hereunder, the Borrower
represents and warrants unto the Agent and each Lender as set
forth in this Article VII.
-----------
SECTION 7.1. Organization; Power. The Borrower is a
-------------------
corporation validly organized and existing and in good standing
under the laws of the State of its incorporation, is duly
qualified to do business and is in good standing as a foreign
corporation in each jurisdiction where the nature of its business
requires such qualification, and has all requisite corporate
power and authority and holds all material requisite governmental
licenses, permits and other approvals to enter into and perform
its Obligations under this Agreement, the Notes and each other
Loan Document and to conduct its business substantially as
currently conducted by it.
SECTION 7.2. Due Authorization; Non-Contravention.
------------------------------------
The execution, delivery and performance by the Borrower of this
Agreement, the Notes and each other Loan Document are within the
Borrower's corporate powers, have been duly authorized by all
necessary corporate action, and do not
(a) contravene the Borrower's Organic Documents;
(b) contravene any contractual restriction, law
or governmental regulation or court decree or order
binding on or affecting the Borrower; or
(c) result in, or require the creation or
imposition of, any Lien on any of the Borrower's
properties.
SECTION 7.3. Government Approval; Regulation. The
-------------------------------
Borrower is not subject to any regulation as an "investment
company" subject to the Investment Company Act of 1940, as
amended, or as a "public utility holding company" subject to the
Public Utility Holding Company Act of 1935, as amended. The
Borrower is not otherwise subject to any regulation as a "public
utility" under any other applicable law, rule or regulation,
which would have a Material Adverse Effect. No authorization,
consent, approval, license, exemption of or filing or
registration with any court or governmental authority or
regulatory body ("Government Approval") is required for the
-------------------
Borrower to execute and perform its obligations under the Loan
Documents, except for those which have been duly obtained or
effected. No material Governmental Approval is required for the
Borrower to carry on its business, except for those which have
been duly obtained or effected.
SECTION 7.4. Validity. This Agreement constitutes,
--------
and the Notes and each other Loan Document will, on the due
execution and delivery thereof, constitute, the legal, valid and
binding obligations of the Borrower enforceable in accordance
with their respective terms (except as may be limited by
bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally and general principles
of equity).
SECTION 7.5. Financial Information. The balance
---------------------
sheets of the Borrower as at December 31, 1995, and the related
statements of income and cash flows of the Borrower, copies of
which have been furnished to the Agent, have been prepared in
accordance with GAAP consistently applied, and present fairly the
consolidated financial condition of the Borrower and its
Subsidiaries as at the dates thereof and the results of their
operations for the periods then ended.
SECTION 7.6. No Material Adverse Change. Since the
--------------------------
date of the financial statements described in Section 7.5, there
-----------
has not occurred any event or condition having a Material Adverse
Effect.
SECTION 7.7. Litigation. There is no pending or, to
----------
the knowledge of the Borrower, threatened litigation, action,
proceeding, or labor controversy affecting the Borrower, or any
of its properties, businesses, assets or revenues, which (taking
into account any insurance proceeds payable under a policy where
the insurer has accepted coverage without any reservations) has a
Material Adverse Effect or which purports to adversely affect the
legality, validity or enforceability of this Agreement or any
other Loan Document.
SECTION 7.8. Ownership of Properties. The Borrower
-----------------------
owns good and marketable title to all of its properties and
assets, real and personal, tangible and intangible, of any nature
whatsoever (including patents, trademarks, trade names, service
marks and copyrights), free and clear of all Liens, charges or
claims (including infringement claims with respect to patents,
trademarks, copyrights and the like) except as permitted pursuant
to Section 8.2.3.
-------------
SECTION 7.9. Taxes. The Borrower has filed all tax
-----
returns and reports required by law to have been filed by it and
has paid all taxes and governmental charges thereby shown to be
owing, except any such taxes or charges which are being
diligently contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have
been set aside on its books.
SECTION 7.10. Pension and Welfare Plans. During the
-------------------------
twelve-consecutive-month period prior to the date of the
execution and delivery of this Agreement and prior to the date of
any Borrowing hereunder, no steps have been taken to terminate
any Pension Plan, and no contribution failure has occurred with
respect to any Pension Plan sufficient to give rise to a Lien
under section 302(f) of ERISA. No condition exists or event or
transaction has occurred with respect to any Pension Plan which
could reasonably be expected to result in the incurrence by the
Borrower or any member of the Controlled Group of any material
liability (other than liabilities incurred in the ordinary course
of maintaining the Pension Plan), fine or penalty. Neither the
Borrower nor any member of the Controlled Group has any
contingent liability with respect to any post-retirement benefit
under a Welfare Plan which could reasonably be expected to have a
Material Adverse Effect, other than liability for continuation
coverage described in Part 6 of Title I of ERISA.
SECTION 7.11. Environmental Warranties.
------------------------
(a) All facilities and property owned or leased
by the Borrower or any of its Subsidiaries or
Partnerships have been, and continue to be, owned or
leased by the Borrower and its Subsidiaries in
compliance with all Environmental Laws, except where
the failure so to comply would not have, or be
reasonably expected to have, a Material Adverse Effect;
(b) there are no pending or, to the knowledge of
the Borrower, threatened
(i) claims, complaints, notices or requests
for information received by the Borrower from
governmental authorities with respect to any
alleged violation by the Borrower of any
Environmental Law, or
(ii) complaints, notices or inquiries to the
Borrower from governmental authorities regarding
potential liability under any Environmental Law;
(c) there have been no Releases (as defined under
any Environmental Law) of Hazardous Materials at, on or
under any property now or previously owned or leased by
the Borrower that, singly or in the aggregate, have, or
may reasonably be expected to have, a Material Adverse
Effect;
(d) the Borrower has obtained and is in
compliance with all permits, certificates, approvals,
licenses and other authorizations relating to
environmental matters and necessary for the Borrower's
business, except where the failure to obtain, maintain
or comply with such permits, certificates, approvals,
licenses or other authorizations would not have, or be
reasonably expected to have, a Material Adverse Effect;
(e) no property now or previously owned or leased
by the Borrower is listed or proposed for listing (with
respect to owned property only) on the National
Priorities List pursuant to any Environmental Law, on
the CERCLIS or on any similar state list of sites
requiring investigation or clean-up; and
(f) no conditions exist at, on or under any
property now or previously owned or leased by the
Borrower which, with the passage of time, or the giving
of notice or both, would give rise to liability under
any Environmental Law which liability would have, or
may reasonably be expected to have, a Material Adverse
Effect.
SECTION 7.12. Regulations G, T, U and X. The Borrower
-------------------------
is not engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock, and no proceeds
of any Loans will be used for a purpose which violates, or would
be inconsistent with, F.R.S. Board Regulation G, T, U or X.
Terms for which meanings are provided in F.R.S. Board Regulation
G, T, U or X or any regulations substituted therefor, as from
time to time in effect, are used in this Section with such
meanings.
SECTION 7.13. Accuracy of Information. All factual
-----------------------
information heretofore or contemporaneously furnished by the
Borrower in writing to the Agent or any Lender for purposes of or
in connection with this Agreement or any transaction contemplated
hereby is, and all other such written factual information
hereafter furnished by the Borrower in writing to the Agent or
any Lender will be, true and accurate in every material respect
on the date as of which such information is dated or certified
and as of the date of execution and delivery of this Agreement by
the Agent and such Lender, and such information is not, or shall
not be, as the case may be, incomplete by omitting to state any
material fact necessary to make such information not misleading;
provided, however, that as to such information prepared by a
-------- -------
person other than the Borrower (other than information furnished
pursuant to Section 8.1.1), such representation and warranty is
-------------
made only to the actual knowledge of the Borrower.
SECTION 7.14. The Obligations. The Obligations are
---------------
senior, unsecured Indebtedness of the Borrower ranking at least
pari passu with all other senior, unsecured Indebtedness of the
----------
Borrower.
ARTICLE VIII
COVENANTS
SECTION 8.1. Affirmative Covenants. The Borrower
---------------------
agrees with the Agent and each Lender that, until all Revolving
Loan Commitments have terminated and all Obligations have been
paid and performed in full, the Borrower will perform the
obligations set forth in this Section 8.1.
-----------
SECTION 8.1.1. Financial Information, Reports, Notices.
---------------------------------------
The Borrower will furnish, or will cause to be furnished, to the
Agent copies of the following financial statements, reports,
notices and information:
(a) as soon as available and in any event within
45 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year of the Borrower,
consolidated balance sheets of the Borrower and its
Subsidiaries as of the end of such Fiscal Quarter and
consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for such Fiscal Quarter
and for the period commencing at the end of the
previous Fiscal Year and ending with the end of such
Fiscal Quarter, certified by the controller, treasurer
or chief financial officer of the Borrower;
(b) as soon as available and in any event within
120 days after the end of each Fiscal Year of the
Borrower, a copy of the annual audit report for such
Fiscal Year for the Borrower and its Subsidiaries,
including therein consolidated balance sheets of the
Borrower and its Subsidiaries as of the end of such
Fiscal Year and consolidated statements of income and
cash flows of the Borrower and its Subsidiaries for
such Fiscal Year, and accompanied by the opinion of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. or other independent public
accountants of recognized national standing selected by
the Borrower which report shall state that such
consolidated financial statements present fairly in all
material respects the financial position for the
periods indicated in conformity with GAAP applied on a
basis consistent with prior periods;
(c) as soon as available and in any event within
45 days after the end of each Fiscal Quarter, a
certificate, executed by the controller, treasurer or
chief financial officer of the Borrower, showing (in
reasonable detail and with appropriate calculations and
computations in all respects satisfactory to the Agent)
compliance with the financial covenants set forth in
Section 8.2.4;
-------------
(d) as soon as possible and in any event within
five Business Days after any Authorized Representative
obtains knowledge of the occurrence of each Default, a
statement of the controller, treasurer or chief
financial officer of the Borrower setting forth details
of such Default and the action which the Borrower has
taken and proposes to take with respect thereto;
(e) as soon as possible and in any event within
five Business Days after (x) the occurrence of any
material adverse development with respect to any
litigation, action, proceeding, or labor controversy of
the type described in Section 7.7 or (y) the
-----------
commencement of any labor controversy, litigation,
action, proceeding of the type described in
Section 7.7, notice thereof and, upon request of the
-----------
Agent, copies of all non-privileged documentation
relating thereto;
(f) promptly after the sending or filing thereof,
copies of all reports and registration statements which
the Borrower files with the Securities and Exchange
Commission or any national securities exchange;
(g) immediately upon becoming aware of the
institution of any steps by the Borrower or any other
Person to terminate any Pension Plan (other than a
standard termination under ERISA Section 4041(b)), or
the failure to make a required contribution to any
Pension Plan if such failure is sufficient to give rise
to a Lien under section 302(f) of ERISA, or the taking
of any action with respect to a Pension Plan which
could result in the requirement that the Borrower
furnish a bond or other security to the PBGC or such
Pension Plan, or the occurrence of any event with
respect to any Pension Plan which could result in the
incurrence by the Borrower or any member of the
Controlled Group of any material liability (other than
liabilities incurred in the ordinary course of
maintaining the Pension Plan), fine or penalty, or any
increase in the contingent liability of the Borrower
with respect to any post-retirement Welfare Plan
benefit which has a Material Adverse Effect, notice
thereof and copies of all documentation relating
thereto;
(h) as soon as known, any changes in Borrower's
Debt Rating by ▇▇▇▇▇'▇ or S&P or any other rating
agency which maintains a Debt Rating on the Borrower
which is used in the determination of the "Applicable
Margin"; and
(i) such other information respecting the
condition or operations, financial or otherwise, of the
Borrower as any Lender through the Agent may from time
to time reasonably request.
SECTION 8.1.2. Compliance with Laws. The Borrower will
--------------------
comply in all material respects with all applicable laws, rules,
regulations and orders, such compliance to include (without
limitation) the payment, before the same become delinquent, of
all taxes, assessments and governmental charges imposed upon it
or upon its property except to the extent being diligently
contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set
aside on its books.
SECTION 8.1.3. Maintenance of Properties. The Borrower
-------------------------
will, and will use reasonable efforts to cause each of its
Subsidiaries and Partnerships to, maintain, preserve, protect and
keep its properties in good repair, working order and condition,
and make necessary and proper repairs, renewals and replacements
so that its business carried on in connection therewith may be
properly conducted at all times unless the Borrower determines in
good faith that the continued maintenance of any of its
properties is no longer economically desirable and except where
the failure so to do would not have a Material Adverse Effect.
SECTION 8.1.4. Insurance. The Borrower will maintain
---------
or cause to be maintained with responsible insurance companies
insurance with respect to its properties and business against
such casualties and contingencies and of such types and in such
amounts as is customary in the case of similar businesses.
SECTION 8.1.5. Books and Records. The Borrower will,
-----------------
and will cause each of its active Subsidiaries to, keep books and
records which accurately reflect all of its business affairs and
transactions and permit the Agent and each Lender or any of their
respective representatives, at reasonable times and intervals, to
visit all of its offices, to discuss its financial matters with
its officers and independent public accountant. The Borrower
will at any reasonable time and from time to time upon reasonable
prior notice, permit the Agent and the Lenders or any of their
respective agents or representatives to examine and make copies
of and abstracts from the records and books of account of the
Borrower; provided that by virtue of this subsection the Borrower
--------
shall not be deemed to have waived any right to confidential
treatment of the information so obtained, subject to the
provisions of applicable law or court order.
SECTION 8.1.6. Environmental Covenant. The Borrower
----------------------
will, and will use best efforts to cause each of its Subsidiaries
and Partnerships to,
(a) use and operate all of its facilities and
properties in compliance with all Environmental Laws,
keep all necessary permits, approvals, certificates,
licenses and other authorizations relating to
environmental matters in effect and remain in material
compliance therewith, and handle all Hazardous
Materials in material compliance with all applicable
Environmental Laws, in each case where the failure to
do so may reasonably be expected to have a Material
Adverse Effect;
(b) promptly cure and have dismissed with
prejudice to the reasonable satisfaction of the Agent
any actions and proceedings relating to compliance with
Environmental Laws where such action or proceeding may
reasonably be expected to have a Material Adverse
Effect; provided that the Borrower or such Subsidiary
--------
or Partnership may postpone such cure and dismissal
during any period in which it is diligently pursuing
any available appeals in such action or proceeding so
long as such postponement would not be reasonably
likely to have a Material Adverse Effect; and
(c) provide such non-privileged information as
the Agent may reasonably request from time to time to
evidence compliance with this Section 8.1.6.
-------------
SECTION 8.2. Negative Covenants. The Borrower agrees
------------------
with the Agent and each Lender that, until all Revolving Loan
Commitments have terminated and all Obligations have been paid
and performed in full, the Borrower will perform the obligations
set forth in this Section 8.2.
-----------
SECTION 8.2.1. Restrictions on Secured Indebtedness.
------------------------------------
The Borrower will not create, incur, assume or suffer to exist
any secured Indebtedness other than:
(a) Capitalized Lease Liabilities and other
secured Indebtedness of any kind whatsoever (including,
without limitation, Indebtedness secured by a pledge of
the stock of a Subsidiary not otherwise permitted under
clause (b) of this Section 8.2.1) at any time
---------- -------------
outstanding not exceeding an aggregate principal amount
equal to 10% of Net Tangible Assets, subject to Section
8.2.3(g) hereof, and -------
--------
(b) Indebtedness with respect to which the
Borrower has pledged the stock of a Subsidiary in order
to secure initial project financing obtained or being
obtained after the Effective Date hereof by such
Subsidiary (or the Partnership in which such Subsidiary
is a partner) if such Indebtedness, as to the Borrower,
is Non-Recourse Debt.
SECTION 8.2.2. [Reserved].
----------
SECTION 8.2.3. Liens. The Borrower will not create,
-----
incur, assume or suffer to exist any Lien upon any of its
property, revenues or assets, whether now owned or hereafter
acquired, except:
(a) Liens granted to secure payment of
Indebtedness of the type permitted and described in
clause (b) of Section 8.2.1;
---------- -------------
(b) Liens for taxes, assessments or other
governmental charges or levies not at the time
delinquent or thereafter payable without penalty or
being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its
books;
(c) Liens of carriers, warehousemen, mechanics,
materialmen and landlords incurred in the ordinary
course of business for sums not overdue or being
diligently contested in good faith by appropriate
proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its
books;
(d) Liens incurred in the ordinary course of
business in connection with workmen's compensation,
unemployment insurance or other forms of governmental
insurance or benefits, or to secure performance of
tenders, statutory obligations, leases and contracts
(other than for borrowed money) entered into in the
ordinary course of business or to secure obligations on
surety or appeal bonds;
(e) judgment Liens in existence less than 30 days
after the entry thereof or with respect to which
execution has been stayed or the payment of which is
covered in full (subject to a customary deductible) by
insurance maintained with responsible insurance
companies;
(f) Liens upon any property at any time directly
owned by the Borrower to secure any Indebtedness of the
nature described in clause (a) of Section 8.2.1 in
---------- -------------
excess of the amount otherwise permitted thereby,
provided that the Obligations shall be equally and
--------
ratably secured with any and all such Indebtedness and
with any other indebtedness similarly entitled to be
equally and ratably secured; and
(g) any Lien existing on the property of the
Borrower on the Effective Date.
In the event that the Borrower shall propose to create,
incur, assume or suffer to exist any Lien upon any property at
any time directly owned by it to secure any Indebtedness as
contemplated by subdivision (g) above, the Borrower will give
-----------
prior written notice thereof to the Agent, who shall give notice
to the Lenders, and the Borrower will, prior to or simultaneously
with the creation of such Lien, effectively secure the
Obligations equally and ratably with such Indebtedness.
SECTION 8.2.4. Financial Condition. The Borrower will
-------------------
not permit its Tangible Net Worth to be less than $400,000,000
plus 25% of the Borrower's and its Subsidiaries' consolidated net
income earned (without subtracting net losses) in each Fiscal
Quarter commencing with the quarter ending after September 30,
1992.
SECTION 8.2.5. Investments. The Borrower will not, and
-----------
will not permit any of its Subsidiaries to, make, incur, assume
or suffer to exist any Investment in any other Person, except:
(a) Investments existing on the Effective Date;
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as
Indebtedness pursuant to Section 8.2.1;
-------------
(d) otherwise in the ordinary course of business;
and
(e) Investments permitted pursuant to Section
8.2.6(b); -------
--------
provided, however, that
-------- -------
(f) any Investment which when made complies with
the requirements of the definition of the term "Cash
Equivalent Investment" may continue to be held ----
---------------------
notwithstanding that such Investment if made thereafter
would not comply with such requirements.
SECTION 8.2.6. Consolidation, Merger. The Borrower
---------------------
will not, and will not permit any of its Subsidiaries to,
liquidate or dissolve, consolidate with, or merge into or with,
any other corporation, or purchase or otherwise acquire all or
substantially all of the assets of any Person (or of any division
thereof) except
(a) any such Subsidiary may liquidate or dissolve
voluntarily into, and may merge with and into, the
Borrower or any other Subsidiary, and the assets or
stock of any Subsidiary may be purchased or otherwise
acquired by the Borrower or any other Subsidiary; and
(b) so long as no Default (by reason of the
violation of Section 8.2.4) has occurred and is
-------------
continuing or would occur after giving effect thereto,
the Borrower or any of its Subsidiaries may purchase
all or substantially all of the assets of any Person,
or (in the case of any such Subsidiary) acquire such
person by merger; and
(c) provided that no Default has occurred and is
continuing or would occur after giving effect thereto
(including, without limitation, a Change in Control),
the Borrower may consolidate with or merge into any
other Person, or convey, transfer or lease its
properties and assets substantially as an entirety to
any person, or permit any Person to merge into or
consolidate with the Borrower if the Borrower is the
surviving corporation or the surviving corporation or
purchaser or lessee is a corporation incorporated under
the laws of the United States of America or Canada and
assumes the Obligations; provided, however, that no
-------- -------
Default or Event of Default shall have occurred after
giving effect thereto.
SECTION 8.2.7. Asset Dispositions. The Borrower will
------------------
not, and will not permit any of its Subsidiaries to, sell,
transfer, lease, contribute or otherwise convey, or grant
options, warrants or other rights with respect to, all or any
substantial part of its assets (including accounts receivable and
capital stock of Subsidiaries) to any Person, unless
(a) such sale, transfer, lease, contribution or
conveyance is in the ordinary course of its business;
or
(b) the net book value of such assets, together
with the net book value of all other assets sold,
transferred, leased, contributed or conveyed otherwise
than in the ordinary course of business by the Borrower
or any of its Subsidiaries pursuant to this
Section 8.2.7(b) during the most recent 12-month period
----------------
since the Effective Date, does not exceed 10% of Net
Tangible Assets computed as of the end of the most
recent quarter preceding such sale; provided, however,
-------- -------
that any such sales shall be disregarded for purposes
of the 10% limitation of this Section 8.2.7(b) if the
----------------
proceeds are invested in assets in similar or related
lines of business of the Borrower, and provided
--------
further, that the Borrower may sell or otherwise
-------
dispose of assets in excess of such 10% if the proceeds
from such sales or dispositions, which are not so
reinvested, are retained by the Borrower as cash or
Cash Equivalent Investments.
SECTION 8.2.8. Transactions with Affiliates. The
----------------------------
Borrower will not enter into, or cause, suffer or permit to exist
any arrangement or contract with any of its Affiliates unless
such arrangement or contract is fair and equitable to the
Borrower and is an arrangement or contract of the kind which
would be entered into by a prudent Person in the position of the
Borrower with a Person which is not one of its Affiliates.
SECTION 8.2.9. Restrictive Agreements. The Borrower
----------------------
will not, and will not permit any of its Subsidiaries to, enter
into any agreement (excluding this Agreement, any other Loan
Document and any agreement governing any Indebtedness permitted
by clause (b) of Section 8.2.1 as to the assets financed with the
---------- -------------
proceeds of such Indebtedness) prohibiting
(a) the ability of the Borrower to amend or
otherwise modify this Agreement or any other Loan
Document; or
(b) the ability of any Subsidiary to make any
payments, directly or indirectly, to the Borrower by
way of dividends, advances, repayments of loans or
advances, reimbursements of management and other
intercompany charges, expenses and accruals or other
returns on investments, or any other agreement or
arrangement which restricts the ability of any such
Subsidiary to make any payment, directly or indirectly,
to the Borrower where such prohibition or restriction
has a Material Adverse Effect.
SECTION 8.3. ERISA. The Borrower will not engage in
-----
any prohibited transactions under Section 406 of ERISA or under
Section 4975 of the Internal Revenue Code, which would subject
the Borrower to any tax, penalty or other liabilities having a
Material Adverse Effect.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1. Listing of Events of Default. Each of
----------------------------
the following events or occurrences described in this Section 9.1
-----------
shall constitute an "Event of Default".
----------------
SECTION 9.1.1. Non-Payment of Obligations. The
--------------------------
Borrower shall default in the payment or mandatory prepayment
when due of any principal of or interest on any Loan or L/C
Obligation, or Borrower shall fail to Cash Collateralize L/C
Obligations when required to do so or the Borrower shall default
(and such default shall continue unremedied for a period of five
days after demand) in the payment when due of any facility fee or
of any other Obligation.
SECTION 9.1.2. Breach of Warranty. Any representation
------------------
or warranty of the Borrower made or deemed to be restated or
remade hereunder or in any other Loan Document or any other
writing or certificate furnished by or on behalf of the Borrower
to the Agent or any Lender for the purposes of or in connection
with this Agreement or any such other Loan Document (including
any certificates delivered pursuant to Article VI) is or shall be
----------
incorrect when made or deemed made in any material respect.
SECTION 9.1.3. Non-Performance of Certain Covenants and
----------------------------------------
Obligations. The Borrower shall default in the due performance
-----------
and observance of any of its obligations under Section 8.2 (other
than Sections 8.2.4 and 8.2.8). -----------
-------------- -----
SECTION 9.1.4. Non-Performance of Other Covenants and
--------------------------------------
Obligations. The Borrower shall default in the due performance
-----------
and observance of any other covenant or agreement contained
herein or in any other Loan Document, and such default shall
continue unremedied for a period of 30 days after written notice
thereof shall have been given to the Borrower by the Agent.
SECTION 9.1.5. Default on Other Indebtedness. A
-----------------------------
default shall occur in the payment when due (subject to any
applicable grace period), whether by acceleration or otherwise,
of any Indebtedness (other than (x) Indebtedness described in
----------
Section 9.1.1 or (y) Non-Recourse Debt inclusive of Indebtedness
------------- ---------
pertaining to the equity financing facility associated at any
time, now or hereafter, with the 1,000 megawatt ▇▇▇▇▇ coal fired
power station located approximately 100 miles southwest of
Melbourne, Australia, in which the Borrower owns an indirect
interest, known as the ▇▇▇ ▇▇▇▇ B Project but only so long as (i)
the existing support arrangements from Edison International
referred to as the ▇▇▇ ▇▇▇▇ B Support Arrangements remain in full
force and effect or (ii) Edison International, in the reasonable
discretion and judgment of the Agent, has a fully enforceable
commitment and unconditional agreement to make equity
contributions to Borrower sufficient to reimburse all drawings
under the equity financing facility supporting the ▇▇▇ ▇▇▇▇ B
Project) of the Borrower having a principal amount, individually
or in the aggregate, in excess of $20,000,000, or a default shall
occur in the performance or observance of any obligation or
condition with respect to such Indebtedness if the effect of such
default is to accelerate the maturity of any such Indebtedness or
such default shall continue unremedied for any applicable period
of time sufficient to permit the holder or holders of such
Indebtedness, or any trustee or agent for such holders, to cause
such Indebtedness to become due and payable prior to its
expressed maturity.
SECTION 9.1.6. Judgments. Any judgment or order for
---------
the payment of money in excess of $20,000,000 (taking into
account any insurance proceeds payable under a policy where the
insurer has accepted coverage without reservation) shall be
rendered against the Borrower and either
(a) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order;
or
(b) there shall be any period of fifteen (15)
consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect.
SECTION 9.1.7. Pension Plans. Any of the following
-------------
events shall occur with respect to any Pension Plan:
(a) the institution of any steps by the Borrower,
any member of its Controlled Group or any other Person
to terminate a Pension Plan if, as a result of such
termination, the Borrower or any such member could be
required to make a contribution to such Pension Plan,
or could reasonably expect to incur a liability or
obligation to such Pension Plan, in excess of
$20,000,000; or
(b) a contribution failure occurs with respect to
any Pension Plan sufficient to give rise to a Lien
under section 302(f) of ERISA.
SECTION 9.1.8. Control of the Borrower. Any Change in
-----------------------
Control shall occur.
SECTION 9.1.9. Bankruptcy, Insolvency. The Borrower
----------------------
shall
(a) become insolvent or generally fail to pay, or
admit in writing its inability or unwillingness to pay,
debts as they become due;
(b) apply for, consent to, or acquiesce in, the
appointment of a trustee, receiver, sequestrator or
other custodian for the Borrower or a substantial
portion of its property, or make a general assignment
for the benefit of creditors;
(c) in the absence of such application, consent
or acquiescence, permit or suffer to exist the
appointment of a trustee, receiver, sequestrator or
other custodian for the Borrower or for a substantial
part of its property, and such trustee, receiver,
sequestrator or other custodian shall not be discharged
within 60 days, provided that nothing in this Agreement
--------
or the Loan Documents shall prohibit or restrict any
right the Agent or any Lender may have under applicable
law to appear in any court conducting any relevant
proceeding during such 60-day period to preserve,
protect and defend its rights under the Loan Documents
(and the Borrower shall not object to any such
appearance);
(d) permit or suffer to exist the commencement of
any bankruptcy, reorganization, debt arrangement or
other case or proceeding under any bankruptcy or
insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of the Borrower,
and, if any such case or proceeding is not commenced by
the Borrower, such case or proceeding shall be
consented to or acquiesced in by the Borrower or shall
result in the entry of an order for relief or shall
remain for 60 days undismissed, provided that nothing
--------
in this Agreement or the Loan Documents shall prohibit
or restrict any right the Agent or any Lender may have
under applicable law to appear in any court conducting
any such case or proceeding during such 60-day period
to preserve, protect and defend its rights under the
Loan Documents (and the Borrower shall not object to
any such appearance); or
(e) take any corporate action authorizing, or in
furtherance of, any of the foregoing.
SECTION 9.2. Action if Bankruptcy. If any Event of
--------------------
Default described in clauses (a) through (d) of Section 9.1.9
----------- --- -------------
shall occur with respect to the Borrower, the Revolving Loan
Commitments (if not theretofore terminated) shall automatically
terminate and the outstanding principal amount of all outstanding
Loans, all other Obligations shall automatically be and become
immediately due and payable, without notice or demand, and the
Borrower shall immediately, without notice or demand, Cash
Collateralize the L/C Obligations.
SECTION 9.3. Action if Other Event of Default. If
--------------------------------
any Event of Default (other than any Event of Default described
in clauses (a) through (d) of Section 9.1.9) shall occur for any
----------- --- -------------
reason, whether voluntary or involuntary, and be continuing, the
Agent, upon the direction of the Required Lenders, shall by
written notice to the Borrower declare all or any portion of the
outstanding principal amount of the Loans, the L/C Obligations
and other Obligations to be due and payable and/or the
Commitments (if not theretofore terminated) to be terminated,
whereupon the full unpaid amount of such Loans and other
Obligations which shall be so declared due and payable shall be
and become immediately due and payable, without further notice,
demand or presentment, and/or, as the case may be, the
Commitments shall terminate and the Borrower shall Cash
Collateralize the L/C Obligations. The rights provided for in
this Agreement and the other Loan Documents are cumulative and
are not exclusive of any other rights, powers, privileges or
remedies provided by law or in equity, or under any other
instrument, document or agreement now existing or hereafter
arising.
SECTION 9.4. Rescission of Declaration. Any
-------------------------
declaration made pursuant to Section 9.3 may, should the Required
-----------
Lenders in their sole and absolute discretion so elect, be
rescinded by written notice to the Borrower at any time after the
principal of the Loans and the Notes shall have become due and
payable, but before any judgment or decree for the payment of the
monies so due, or any part thereof, shall have been entered;
provided that the Borrower shall have paid all arrears of
--------
interest upon the Loans and the Notes and all other amounts then
owed to the Agent and the Lenders including all costs, expenses
and liabilities incurred by the Agent and the Lenders in respect
of such declaration and all consequences thereof (except that
principal of the Loans and the Notes which by such declaration
shall have become payable) and every other Event of Default shall
have been made good, waived or cured; provided that no such
--------
rescission or annulment shall extend to or affect any subsequent
Event of Default or impair any right consequent thereon.
ARTICLE X
THE AGENT
SECTION 10.1. Actions. (a) Each Lender hereby
-------
appoints BofA as its Agent under and for purposes of this
Agreement, the Notes and each other Loan Document. Each Lender
authorizes the Agent to act on behalf of such Lender under this
Agreement, the Notes and each other Loan Document and, in the
absence of other written instructions from the Required Lenders
received from time to time by the Agent (with respect to which
the Agent agrees that it will comply, except as otherwise
provided in this Section or as otherwise advised by counsel), to
exercise such powers hereunder and thereunder as are specifically
delegated to or required of the Agent by the terms hereof and
thereof, together with such powers as may be reasonably
incidental thereto. Notwithstanding any provision to the
contrary contained elsewhere in this Agreement or in any other
Loan Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor
shall the Agent have or be deemed to have any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be
read into this Agreement or any other Loan Document or otherwise
exist against the Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" in this Agreement
with reference to the Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law. Instead, such term is
used merely as a matter of market custom, and is intended to
create or reflect only an administrative relationship between
independent contracting parties.
(b) Each Lender hereby indemnifies (which
indemnity shall survive any termination of this Agreement) the
Agent-Related Persons pro rata according to such Lender's
--- ----
Percentage, from and against any and all liabilities,
obligations, losses, damages, claims, costs or expenses of any
kind or nature whatsoever which may at any time be imposed on,
incurred by, or asserted against, the Agent-Related Persons in
any way relating to or arising out of this Agreement, the Notes
and any other Loan Document, including reasonable attorneys'
fees, and as to which the Agent is not reimbursed by the
Borrower; provided, however, that no Lender shall be liable for
-------- -------
the payment of any portion of such liabilities, obligations,
losses, damages, claims, costs or expenses which are determined
by a court of competent jurisdiction in a final proceeding to
have resulted from the Agent-Related Person's gross negligence or
wilful misconduct. No Agent-Related Persons shall be required to
take any action hereunder, under the Notes or under any other
Loan Document, or to prosecute or defend any suit in respect of
this Agreement, the Notes or any other Loan Document, unless it
is indemnified hereunder to its satisfaction. If any indemnity
in favor of the Agent shall be or become, in its determination,
inadequate, the Agent-Related Person may call for additional
indemnification from the Lenders and cease to do the acts
indemnified against hereunder until such additional indemnity is
given. The Co-Agents shall have no rights, duties or obligations
under this Agreement in their capacities as Co-Agents.
(c) The Issuing Bank shall act on behalf of the
Lenders with respect to any Letters of Credit Issued by it and
the documents associated therewith until such time and except for
so long as the Agent may agree at the request of the Required
Lenders to act for such Issuing Bank with respect thereto;
provided, however, that the Issuing Bank shall have all of the
-------- -------
benefits and immunities (i) provided to the Agent in this
Article X with respect to any acts taken or omissions suffered by
---------
the Issuing Bank in connection with Letters of Credit Issued by
it or proposed to be Issued by it and the L/C Related Documents
as fully as if the term "Agent", as used in this Article X,
---------
included the Issuing Bank with respect to such acts or omissions,
and (ii) as additionally provided in this Agreement with respect
to the Issuing Bank.
SECTION 10.2. Funding Reliance. Unless the Agent
----------------
shall have been notified by telephone, confirmed in writing, by
any Lender by 8:30 a.m., San Francisco time, on the day prior to
a Borrowing that such Lender will not make available the amount
which would constitute its Percentage of such Borrowing on the
date specified therefor, the Agent may assume that such Lender
has made such amount available to the Agent and, in reliance upon
such assumption, may, but shall not be required to, make
available to the Borrower a corresponding amount. If and to the
extent that such Lender shall not have made such amount available
to the Agent, such Lender and the Borrower severally agree to
repay the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date the
Agent made such amount available to the Borrower to the date such
amount is repaid to the Agent, at the interest rate applicable at
the time to Loans comprising such Borrowing; provided, that if
--------
such Lender makes available the amount which is its Percentage of
such Borrowing on or before the next Business Day following the
day when due, the interest rate payable on such amount shall be
the Federal Funds Rate.
SECTION 10.3. Exculpation. No Agent-Related Person
-----------
shall be liable to any Lender for any action taken or omitted to
be taken by it under this Agreement or any other Loan Document,
or in connection herewith or therewith, except for its own wilful
misconduct or gross negligence, nor responsible for any recitals
or warranties herein or therein, nor for the effectiveness,
enforceability, validity or due execution of this Agreement or
any other Loan Document, nor to make any inquiry respecting the
performance by the Borrower of its obligations hereunder or under
any other Loan Document. Any such inquiry which may be made by
the Agent shall not obligate it to make any further inquiry or to
take any action. Each Agent-Related Person shall be entitled to
rely upon advice of counsel concerning legal matters and upon any
notice, consent, certificate, statement or writing which the
Agent believes to be genuine and to have been presented by a
proper Person.
SECTION 10.4. Successor. The Agent may resign as such
---------
at any time upon at least 30 days' prior notice to the Borrower
and all Lenders. If the Agent at any time shall resign, the
Required Lenders may, within ten (10) days after such notice and
with the consent of the Borrower (not to be unreasonably
withheld), appoint another Lender as a successor Agent which
shall thereupon become the Agent hereunder. If no successor
Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the
retiring Agent's giving notice of resignation, then the retiring
Agent may, on behalf of the Lenders, after notice to and
consultation with the Borrower, appoint a successor Agent, which
shall be one of the Lenders or an Eligible Assignee, and shall
have a combined capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall be entitled to
receive from the retiring Agent such documents of transfer and
assignment as such successor Agent may reasonably request, and
shall thereupon succeed to and become vested with all rights,
powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and
obligations under this Agreement. After the effective date of
any retiring Agent's resignation hereunder as the Agent, the
provisions of (a) this Article X shall inure to its benefit as
---------
to any actions taken or omitted to be taken by it while it was
the Agent under this Agreement; and (b) Section 11.3 and Section
------------ -------
11.4 shall continue to inure to its benefit.
----
SECTION 10.5. Loans by BofA. BofA shall have the same
-------------
rights and powers with respect to (x) the Loans made by it or any
of its Affiliates, and (y) the Notes held by it or any of its
Affiliates as any other Lender and may exercise the same as if it
were not the Agent. BofA and its Affiliates may accept deposits
from, lend money to, and generally engage in any kind of business
with the Borrower or any Subsidiary or Affiliate of the Borrower
as if BofA were not the Agent hereunder.
SECTION 10.6. Reliance by Agent. (a) The Agent shall
-----------------
be entitled to rely, and shall be fully protected in relying,
upon any writing, resolution, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to the Company),
independent accountants and other experts selected by the Agent.
The Agent shall be fully justified in failing or refusing to take
any action under this Agreement or any other Loan Document unless
it shall first receive such advice or concurrence of the Required
Lenders as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Required
Lenders and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with
the conditions specified in Section 6.1, each Lender that has
executed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or
other matter either sent by the Agent to such Lender for consent,
approval, acceptance or satisfaction, or required thereunder to
be consented to or approved by or acceptable or satisfactory to
the Lender.
SECTION 10.7. Notice of Default. The Agent shall not
-----------------
be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default, except with respect to defaults in
the payment of principal, interest and fees required to be paid
to the Agent for the account of the Lenders, unless the Agent
shall have received written notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default".
The Agent will notify the Lenders of its receipt of any such
notice. The Agent shall take such action with respect to such
Default or Event of Default as may be requested by the Required
Lenders in accordance with Article IX; provided, however, that
-------- -------
unless and until the Agent has received any such request, the
Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable or in the best
interest of the Lenders.
SECTION 10.8. Credit Decisions. Each Lender
----------------
acknowledges that it has, independently of the Agent-Related
Person and each other Lender, and based on such Lender's review
of the financial information of the Borrower, this Agreement, the
other Loan Documents (the terms and provisions of which being
satisfactory to such Lender) and such other documents,
information and investigations as such Lender has deemed
appropriate, made its own credit decision to extend its
Commitments. Each Lender also acknowledges that it will,
independently of the Agent and each other Lender, and based on
such other documents, information and investigations as it shall
deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time
any rights and privileges available to it under this Agreement or
any other Loan Document.
SECTION 10.9. Copies. The Agent shall give prompt
------
notice to each Lender of each notice or request required or
permitted to be given to the Agent by the Borrower pursuant to
the terms of this Agreement (unless concurrently delivered to the
Lenders by the Borrower). The Agent will distribute to each
Lender each document or instrument received for its account and
copies of all other communications received by the Agent from the
Borrower for distribution to the Lenders by the Agent in
accordance with the terms of this Agreement.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments. The provisions of
-------------------
this Agreement and of each other Loan Document may from time to
time be amended, modified or waived, if such amendment,
modification or waiver is in writing and consented to by the
Borrower and the Required Lenders; provided, however, that no
-------- -------
such amendment, modification or waiver which would:
(a) modify any requirement hereunder that any
particular action, including, without limitation, any
amendment of Schedule 2.9, be taken by all the Lenders
------------
or by the Required Lenders shall be effective unless
consented to by each Lender;
(b) modify this Section 11.1, change the
------------
definition of "Required Lenders", increase any
----------------
Revolving Loan Commitment Amount or the Percentage of
any Lender, reduce or change the date for payment of
any fees described in Article III (other than the fees
-----------
described in Section 3.3.2), or extend any Revolving
-------------
Loan Commitment Termination Date shall be made without
the consent of each Lender and each holder of a Note;
(c) extend the due date for, or reduce the amount
of, any scheduled repayment or prepayment of principal
of or interest on any Loan (or reduce the principal
amount of or rate of interest on any Loan) shall be
made without the consent of the holder of that Note
evidencing such Loan; or
(d) affect the interests, rights or obligations
of the Agent qua the Agent or the Issuing Bank qua the
--- ---
Issuing Bank shall be made without consent of the Agent
or the Issuing Bank, respectively.
No failure or delay on the part of the Agent, any Lender or the
holder of any Note in exercising any power or right under this
Agreement or any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such
power or right preclude any other or further exercise thereof or
the exercise of any other power or right. No notice to or demand
on the Borrower in any case shall entitle it to any notice or
demand in similar or other circumstances. No waiver or approval
by the Agent, any Lender or the holder of any Note under this
Agreement or any other Loan Document shall, except as may be
otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall
require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.
SECTION 11.2. Notices. All notices and other
-------
communications provided to any party hereto under this Agreement
or any other Loan Document shall be in writing or by facsimile
and addressed, delivered or transmitted to such party at its
address or facsimile number set forth on Schedule 11.2 or set
forth in the Lender Assignment Agreement or at such other address
or facsimile number as may be designated by such party in a
written notice to the other parties. Any notice, if mailed and
properly addressed with postage prepaid shall be effective five
Business Days after being sent or if properly addressed and sent
by pre-paid courier service, shall be deemed given when received;
any notice, if transmitted by facsimile, shall be deemed given
when transmitted (if confirmed).
SECTION 11.3. Payment of Costs and Expenses. The
-----------------------------
Borrower agrees to pay promptly on demand all reasonable expenses
of the Arranger and the Agent (including in its capacity as
Issuing Bank, and including the reasonable fees and out-of-pocket
expenses of counsel to the Agent, including the allocated cost of
inhouse counsel and staff, and of local counsel, if any, who may
be retained by counsel to the Agent) in connection with
(a) the negotiation, preparation, execution and
delivery of this Agreement and of each other Loan
Document, including schedules and exhibits, and any
amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan
Document as may from time to time hereafter be
required, whether or not the transactions contemplated
hereby are consummated, and
(b) the preparation and review of the form of any
document or instrument relevant to this Agreement or
any other Loan Document; provided, however, that the
-------- -------
Borrower shall have no obligation to pay for the cost
of the documentation of transfers or participations as
provided in Section 11.11.
-------------
The Borrower further agrees to pay upon demand, and to save the
Agent, the Issuing Bank and the Lenders harmless from all
liability for, any stamp or other taxes which may be payable in
connection with the execution or delivery of this Agreement, the
borrowings hereunder, or the issuance of the Notes or any other
Loan Documents. The Borrower also agrees to reimburse the Agent,
the Issuing Bank and each Lender, as applicable, promptly upon
demand for all reasonable out-of-pocket expenses (including
attorneys' fees and legal expenses, including non-duplicative
allocated costs of in-house counsel) incurred by (x) the Agent,
the Issuing Bank in connection with the negotiation of any
restructuring or "work-out", whether or not consummated, of any
Obligations and (y) by the Agent, the Issuing Bank and each
Lender in connection with the enforcement of any Obligations
after an Event of Default.
SECTION 11.4. Indemnification. In consideration of
---------------
the execution and delivery of this Agreement by each Lender and
the extension of the Commitments, the Borrower hereby
indemnifies, exonerates and holds the Agent, the Issuing Bank and
each Lender and each of their respective officers, directors,
employees and agents (collectively, the "Indemnified Parties")
-------------------
free and harmless from and against any and all actions, causes of
action, suits, losses, costs, liabilities and damages, and
expenses incurred in connection therewith (irrespective of
whether any such Indemnified Party is a party to the action for
which indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements (collectively, the "Indemnified
-----------
Liabilities"), incurred by the Indemnified Parties or any of them
-----------
as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in
whole or in part, directly or indirectly, with the
proceeds of any Loan;
(b) the entering into and performance of this
Agreement and any other Loan Document by any of the
Indemnified Parties (including any action brought by or
on behalf of the Borrower as the result of any
determination by the Required Lenders pursuant to
Article VI not to fund any Borrowing);
----------
(c) any investigation, litigation or proceeding
related to any environmental cleanup, audit, compliance
or other matter relating to the protection of the
environment or the Release by the Borrower or any of
its Subsidiaries of any Hazardous Material, where such
claim or liability arises out of the relationship of
the parties under this Agreement; or
(d) the presence on or under, or the escape,
seepage, leakage, spillage, discharge, emission,
discharging or releases from, any real property owned
or operated by the Borrower or any Subsidiary thereof
of any Hazardous Material (including any losses,
liabilities, damages, injuries, costs, expenses or
claims asserted or arising under any Environmental
Law), regardless of whether caused by, or within the
control of, the Borrower or such Subsidiary, where such
claim or liability arises out of the relationship of
the parties under this Agreement;
except for any such Indemnified Liabilities arising for the
account of a particular Indemnified Party by reason of the
relevant Indemnified Party's (i) gross negligence or wilful
misconduct or (ii) in the case of Indemnified Liabilities
described in Section 11.4(c) and 11.4(d), to the extent of any
--------------- -------
non-compliance with Environmental Laws. If and to the extent
that the foregoing undertaking may be unenforceable for any
reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable
law.
SECTION 11.5. Survival. The obligations of the
--------
Borrower under Sections 4.3, 4.5, 4.6, 4.7, 11.3 and 11.4, and
------------ --- --- --- ---- ----
the obligations of the Lenders under Section 10.1, shall in each
------------
case survive any termination of this Agreement, the payment in
full of all Obligations and the termination of all Commitments.
The representations and warranties made by the Borrower in this
Agreement and in each other Loan Document shall survive the
execution and delivery of this Agreement and each such other Loan
Document.
SECTION 11.6. Severability. Any provision of this
------------
Agreement or any other Loan Document which is prohibited or
unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions of this Agreement or such Loan Document or
affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION 11.7. Headings. The various headings of this
--------
Agreement and of each other Loan Document are inserted for
convenience only and shall not affect the meaning or
interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 11.8. Execution in Counterparts,
-------------------------
Effectiveness. This Agreement may be executed by the parties
-------------
hereto in several counterparts, each of which shall be executed
by the Borrower and the Agent and be deemed to be an original and
all of which shall constitute together but one and the same
agreement. This Agreement shall become effective when
counterparts hereof executed on behalf of the Borrower and each
Lender (or notice thereof satisfactory to the Agent) shall have
been received by the Agent and notice thereof shall have been
given by the Agent to the Borrower and each Lender.
SECTION 11.9. Governing Law; Entire Agreement. THIS
-------------------------------
AGREEMENT, THE NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF
THE STATE OF CALIFORNIA. This Agreement, the Notes and the other
Loan Documents constitute the entire understanding among the
parties hereto with respect to the subject matter hereof and
supersede any prior agreements, written or oral, with respect
thereto.
SECTION 11.10. Successors and Assigns. This Agreement
----------------------
shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns;
provided, however, that:
-------- -------
(a) the Borrower may not assign or transfer its
rights or obligations hereunder without the prior
written consent of the Agent and all Lenders; and
(b) the rights of sale, assignment and transfer
of the Lenders are subject to Section 11.11.
-------------
SECTION 11.11. Sale and Transfer of Loans and Notes;
------------------------------------
Participations in Loans and Notes. Each Lender may assign, or
---------------------------------
sell participations in, its Loans and Commitments to one or more
other Persons in accordance with this Section 11.11.
-------------
SECTION 11.11.1. Assignments. Any Lender,
-----------
(a) with the written consents of the Borrower and
the Agent (which consents shall not be unreasonably
delayed or withheld), and with the written consent of
the Issuing Bank, may at any time assign and delegate
to one or more Eligible Assignees, and
(b) with the written consent of the Issuing Bank
and with notice to the Borrower and the Agent, but
without the consent of the Borrower or the Agent, may
assign and delegate to any of its Affiliates or to any
other Lender
(each Person described in either of the foregoing clauses as
being the Person to whom such assignment and delegation is to be
made, being hereinafter referred to as an "Assignee Lender"), all
---------------
or any fraction of such Lender's total Committed Loans and
Commitments (which assignment and delegation shall be of a
constant, and not a varying, percentage of all the assigning
Lender's Committed Loans and Commitments) in a minimum aggregate
amount of $10,000,000; provided, however, that any such Assignee
-------- -------
Lender will comply, if applicable, with the provisions contained
in the penultimate sentence of Section 4.7 and further, provided,
----------- ------- --------
however, that, the Borrower and the Agent shall be entitled to
-------
continue to deal solely and directly with such Lender in
connection with the interests so assigned and delegated to an
Assignee Lender until
(c) written notice of such assignment and
delegation, together with payment instructions,
addresses and related information with respect to such
Assignee Lender, shall have been given to the Borrower
and the Agent by such Lender and such Assignee Lender,
(d) such Assignee Lender shall have executed and
delivered to the Borrower and the Agent a Lender
Assignment Agreement, accepted by the Agent, and
(e) the processing fees described below shall
have been paid.
From and after the date that the Agent accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be
deemed automatically to have become a party hereto and to the
extent that rights and obligations hereunder have been assigned
and delegated to such Assignee Lender in connection with such
Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan
Documents, and (y) the assignor Lender, to the extent that rights
and obligations hereunder have been assigned and delegated by it
in connection with such Lender Assignment Agreement, shall be
released from its obligations hereunder and under the other Loan
Documents. Within five Business Days after its receipt of notice
that the Agent has received an executed Lender Assignment
Agreement, the Borrower shall execute and deliver to the Agent
(for delivery to the relevant Assignee Lender) new Notes
evidencing such Assignee Lender's assigned Loans and Commitments
and, if the assignor Lender has retained Loans and Commitments
hereunder, replacement Notes in the principal amount of the Loans
and Commitments retained by the assignor Lender hereunder (such
Notes to be in exchange for, but not in payment of, those Notes
then held by such assignor Lender). Each such Note shall be
dated the date of the predecessor Notes. The assignor Lender
shall ▇▇▇▇ the predecessor Notes "exchanged" and deliver them to
the Borrower. Accrued interest on that part of the predecessor
Notes evidenced by the new Notes, and accrued fees, shall be paid
as provided in the Lender Assignment Agreement. Accrued interest
on that part of the predecessor Notes evidenced by the
replacement Notes shall be paid to the assignor Lender. Accrued
interest and accrued fees shall be paid at the same time or times
provided in the predecessor Notes and in this Agreement. Such
assignor Lender or such Assignee Lender must also pay a
processing fee to the Agent upon delivery of any Lender
Assignment Agreement in the amount of $2,500. Any attempted
assignment and delegation not made in accordance with this
Section 11.11.1 shall be null and void. Notwithstanding any
---------------
other provision of this Agreement, nothing contained in this
Agreement shall prevent any Lender from pledging or assigning its
interest in any Note to the Federal Reserve Bank in accordance
with applicable law; provided, however, that no such pledge or
-------- -------
assignment shall affect the nature of the Borrower's obligations
under this Agreement or such Note.
SECTION 11.11.2. Participations. Any Lender may at
--------------
any time sell to one or more commercial banks or other Persons
(each of such commercial banks and other Persons being herein
called a "Participant") participating interests in any of the
-----------
Loans, Commitments, or other interests of such Lender hereunder;
provided, however, that
-------- -------
(a) no participation contemplated in this
Section 11.11.2 shall relieve such Lender from its
---------------
Commitments or its other obligations hereunder or under
any other Loan Document,
(b) such Lender shall remain solely responsible
for the performance of its Commitments and such other
obligations,
(c) the Borrower and the Agent shall continue to
deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this
Agreement and each of the other Loan Documents,
(d) no Participant, unless such Participant is an
Affiliate of such Lender, or is itself a Lender, shall
be entitled to require such Lender to take or refrain
from taking any action hereunder or under any other
Loan Document, except that such Lender may agree with
any Participant that such Lender will not, without such
Participant's consent, take any actions of the type
described in clause (b) or (c) of Section 11.1, and
---------- --- ------------
(e) the Borrower shall not be required to pay any
amount under Sections 4.3, 4.4, 4.5, 4.6, 4.7, 4.8,
------------ --- --- --- --- ---
4.9, 11.3 and 11.4, that is greater than the amount
--- ---- ----
which it would have been required to pay had no
participating interest been sold.
SECTION 11.12. Other Transactions. Nothing contained
------------------
herein shall preclude the Agent or any other Lender from engaging
in any transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Borrower or any of
its Affiliates in which the Borrower or such Affiliate is not
restricted hereby from engaging with any other Person.
SECTION 11.13. Forum Selection and Consent to
------------------------------
Jurisdiction. ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
------------
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE ISSUING
BANK, THE LENDERS OR THE BORROWER SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF CALIFORNIA OR IN THE
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF
CALIFORNIA; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
-------- -------
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWER HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF CALIFORNIA AND OF THE UNITED STATES
DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH SUCH LITIGATION. THE BORROWER FURTHER IRREVOCABLY CONSENTS
TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR
BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF CALIFORNIA.
THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE
OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY
CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT
OF FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWER
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 11.14. Waiver of Jury Trial. THE AGENT, THE
--------------------
ISSUING BANK, THE LENDERS AND THE BORROWER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE
AGENT, THE LENDERS OR THE BORROWER. THE BORROWER ACKNOWLEDGES
AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION
FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE AGENT AND THE LENDERS ENTERING INTO
THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION 11.15. Non-Recourse Persons. The Lenders
--------------------
acknowledge that no Non-Recourse Person shall have any
responsibility or liability for the Obligations.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized as of the day and year first above written.
EDISON MISSION ENERGY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------
Title: V.P. and Treasurer
-------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Agent
By: ▇▇▇▇▇ ▇▇▇▇▇
-------------
Title: Vice President
----------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Issuing
Bank
By: ▇▇▇▇▇▇ ▇▇▇▇▇
--------------
Title: Vice President
----------------
LENDERS
-------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Lender
By: ▇▇▇▇▇▇ ▇▇▇▇▇
--------------
Title: Vice President
----------------
BANK OF MONTREAL
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
Title: Director
----------
THE BANK OF NOVA SCOTIA
By: ▇▇▇▇ ▇. Quick
---------------
Title: Officer
---------
THE CHASE MANHATTAN BANK
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------
Title: Vice President
----------------
CITICORP USA, INC.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------
Title:
----------------
CREDIT LYONNAIS, NEW YORK BRANCH
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------
Title: Senior Vice President
-----------------------
INTENTIONALLY LEFT BLANK
CREDIT SUISSE
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------
Title: Associate
-----------
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------
Title: Member of Senior Management
-----------------------------
▇▇▇▇▇ FARGO BANK, N.A.
By: ▇▇▇▇▇▇ ▇. ▇▇▇
---------------
Title: Vice President
----------------
THE FUJI BANK, LIMITED, LOS ANGELES
AGENCY
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------
Title: Joint General Manager
---------------------
THE INDUSTRIAL BANK OF JAPAN, LTD.,
LOS ANGELES AGENCY
By: ▇. ▇. ▇▇▇▇
------------
Title: Senior Deputy General Manager
-------------------------------
KREDIETBANK N.V.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------
Title: Vice President
----------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------
Title: Vice President
----------------
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------
Title: Deputy General Manager
------------------------
THE SANWA BANK, LIMITED,
LOS ANGELES BRANCH
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇
---------------
Title: Vice President
----------------
SOCIETE GENERALE, LOS ANGELES BRANCH
By: ▇▇▇▇▇▇ ▇▇▇▇
-------------
Title: Vice President
----------------
THE SUMITOMO BANK, LIMITED,
LOS ANGELES BRANCH
By: ▇▇▇▇ ▇▇▇▇▇
------------
Title: Joint General Manager
-----------------------
SWISS BANK CORPORATION
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------
Title: Associate Director
Banking Finance Support, N.A.
-----------------------------
By: ▇▇▇▇▇▇ ▇. Portola
-------------------
Title: Associate Director
--------------------
NATIONSBANK OF TEXAS, N.A.
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------
Title: Senior Vice President
-----------------------
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------
Title: Vice President
----------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------
Title: Vice President
----------------
SCHEDULE 2.1
REVOLVING LOAN COMMITMENTS
--------------------------
Revolving
Loan
Lender Commitment Percentage
------ ---------- ----------
Bank of America National
Trust and Savings Association $ 42,500,000 8.5%
Bank of Montreal 37,500,000 7.5%
Credit Lyonnais, New York Branch 37,500,000 7.5%
The Fuji Bank, Limited,
Los Angeles Agency 37,500,000 7.5%
The Industrial Bank of Japan,
Ltd., Los Angeles Agency 37,500,000 7.5%
The Long-Term Credit Bank of
Japan, Ltd., Los Angeles Agency 37,500,000 7.5%
Societe Generale, Los Angeles
Branch 37,500,000 7.5%
Swiss Bank Corporation 37,500,000 7.5%
NationsBank of Texas, N.A. 37,500,000 7.5%
The Bank of Nova Scotia 17,500,000 3.5%
The Chase Manhattan Bank 17,500,000 3.5%
Citicorp USA, Inc. 17,500,000 3.5%
Credit Suisse 17,500,000 3.5%
▇▇▇▇▇ Fargo Bank, N.A. 17,500,000 3.5%
Kredietbank N.V. 17,500,000 3.5%
The Sanwa Bank, Limited,
Los Angeles Branch 17,500,000 3.5%
The Sumitomo Bank, Limited,
Los Angeles Branch 17,500,000 3.5%
Union Bank of Switzerland,
New York Branch 17,500,000 3.5%
------------ ----
Total $500,000,000 100.0%
============ ======
SCHEDULE 2.9
AGREED ALTERNATIVE CURRENCIES
-----------------------------
Notice of Borrowing or
Notice of Continuation/
Interest Rate to
Currency Conversion to be delivered by1 be Set as of2
-------- --------------------------------- ----------------
--------------
1 Unless otherwise indicated, all times are Los Angeles time
five Business Days prior to requested borrowing or conversion/continuation.
2 Unless otherwise indicated, all times are London time three
Business Days prior to requested borrowing or conversion/continuation.
SCHEDULE 11.2
ADDRESSES FOR NOTICES AND LENDING OFFICES
-----------------------------------------
BORROWER
--------
EDISON MISSION ENERGY
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Ext. 2116
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA NATIONAL TRUST
------------------------------
AND SAVINGS ASSOCIATION,
-----------------------
as Agent
Notices of Borrowing, Notices of Conversion/
Continuation, copies of L/C Applications:
Agency Administrative Services #5596
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ Kubukawa
Agency Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Other Notices:
Bank of America National Trust
and Savings Association
Agency Management #10831
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA NATIONAL TRUST
------------------------------
AND SAVINGS ASSOCIATION,
-----------------------
as Issuing Bank
Bank of America National Trust
and Savings Association
International Trade Banking Division #5655
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA NATIONAL TRUST
------------------------------
AND SAVINGS ASSOCIATION,
-----------------------
as a Bank
Domestic and Offshore Lending Office:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Account Administrator
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Notices of Borrowing and Notices of
Conversion/Continuation):
Bank of America National Trust
and Savings Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
Credit Products #3283
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF MONTREAL
----------------
Domestic and Offshore Lending Office:
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Notices of Borrowing and Notices of
Conversion/Continuation):
Bank of Montreal
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Director
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NOVA SCOTIA
-----------------------
Domestic and Offshore Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Senior Relationship Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE CHASE MANHATTAN BANK
------------------------
Domestic and Offshore Lending Office:
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
CITICORP USA, INC.
------------------
Domestic and Offshore Lending Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Sandip Seh
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
CREDIT LYONNAIS, NEW YORK BRANCH
--------------------------------
Domestic and Offshore Lending Office:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
CREDIT SUISSE
-------------
Domestic and Offshore Lending Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE FUJI BANK, LIMITED, LOS ANGELES AGENCY
------------------------------------------
Domestic and Offshore Lending Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President and Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE INDUSTRIAL BANK OF JAPAN, LTD.,
-----------------------------------
LOS ANGELES AGENCY
--------------------
Domestic and Offshore Lending Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: June Minamizono
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
KREDIETBANK N.V.
----------------
Domestic and Offshore Lending Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
---------------
Kredietbank N.V.
New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
-----------------------------------------
LOS ANGELES AGENCY
--------------------
Domestic and Offshore Lending Office:
Los Angeles Agency, Suite 3000
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
---------------
Los Angeles Agency, Suite 3000
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Tadashi Onada
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
NATIONSBANK OF TEXAS, N.A.
--------------------------
Domestic and Offshore Lending Office:
64th Floor (75202), Utility Finance Division
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE SANWA BANK, LIMITED, LOS ANGELES BRANCH
-------------------------------------------
Domestic and Offshore Lending Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code W5-4
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SOCIETE GENERALE, LOS ANGELES BRANCH
------------------------------------
Domestic and Offshore Lending Office:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE SUMITOMO BANK LIMITED, LOS ANGELES AGENCY
---------------------------------------------
Domestic and Offshore Lending Office:
Los Angeles Branch, Suite 2600
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. Hills
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SWISS BANK CORPORATION
----------------------
Domestic and Offshore Lending Office:
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ Monascebian
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
UNION BANK OF SWITZERLAND, NEW YORK BRANCH
------------------------------------------
Domestic and Offshore Lending Office:
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ FARGO BANK, N.A.
----------------------
Domestic and Offshore Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (213) 614-2569
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Assistant Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT A-1
SECOND AMENDED AND RESTATED
---------------------------
REVOLVING NOTE
--------------
$___________ October 11, 1996
FOR VALUE RECEIVED, the undersigned, EDISON MISSION
ENERGY, a California corporation (the "Borrower"), promises to
--------
pay to the order of ______________________ (the "Lender") on
------
_________, 19__ the principal sum of __________________ DOLLARS
($___________) or, if less, the aggregate unpaid principal amount
of all Revolving Loans shown on the schedule attached hereto (and
any continuation thereof) made by the Lender pursuant to that
certain Second Amended and Restated Credit Agreement, dated as of
October 11, 1996 (together with all amendments and other
modifications, if any, from time to time thereafter made thereto,
the "Credit Agreement"), among the Borrower, Bank of America
----------------
National Trust and Savings Association, as Agent and Issuing
Bank, and the various financial institutions (including the
Lender) as are, or may from time to time become, parties thereto.
The Borrower also promises to pay interest on the
unpaid principal amount hereof from time to time outstanding from
the date hereof until maturity (whether by acceleration or
otherwise) and, after maturity, until paid, at the rates per
annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made
in Applicable Currency in same day or immediately available funds
to the account designated by the Agent pursuant to the Credit
Agreement.
This Note is one of the Revolving Notes referred to in,
and evidences Indebtedness incurred under, the Credit Agreement,
to which reference is made for a statement of the terms and
conditions on which the Borrower is permitted and required to
make prepayments and repayments of principal of the Indebtedness
evidenced by this Note and on which such Indebtedness may be
declared to be immediately due and payable. This Note amends and
restates the Revolving Credit Note dated as of November 17, 1994
executed by Borrower in favor of the Bank in connection with that
certain Amended and Restated Credit Agreement, dated as of
November 17, 1994, among the Borrower, the Agent, the Issuing
Bank and the lenders party thereto, and amounts outstanding under
such Revolving Credit Note are deemed outstanding and owing under
this Note. Unless otherwise defined, terms used herein have the
meanings provided in the Credit Agreement.
All parties hereto, whether as makers, endorsers, or
otherwise, severally waive presentment for payment, demand,
protest and notice of dishonor.
If any payment on this Revolving Note becomes due and
payable on a date which is not a Business Day, such payment shall
be made on the next succeeding Business Day.
THIS NOTE HAS BEEN DELIVERED IN LOS ANGELES, CALIFORNIA
AND SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF CALIFORNIA.
EDISON MISSION ENERGY
By_____________________________
Title:
REVOLVING LOANS AND PRINCIPAL PAYMENTS
Type Amount Amount of Outstanding Nota-
of of End of Prin. or Principal tion
Loan Loan Interest Int. Paid Balance Made
Date Made Made Period This Date This Date By
---- ---- ---- -------- --------- --------- -----
EXHIBIT A-2
SECOND AMENDED AND RESTATED
---------------------------
MONEY MARKET NOTE
-----------------
$___________ October 11, 1996
FOR VALUE RECEIVED, the undersigned, EDISON MISSION ENERGY,
a California corporation (the "Borrower"), promises to pay to the
--------
order of ______________________ (the "Lender") on _________, 19__
------
the principal sum of __________________ DOLLARS ($___________)
or, if less, the aggregate unpaid principal amount of all Money
Market Loans shown on the schedule attached hereto (and any
continuation thereof) made by the Lender pursuant to that certain
Second Amended and Restated Credit Agreement, dated as of
October 11, 1996 (together with all amendments and other
modifications, if any, from time to time thereafter made thereto,
the "Credit Agreement"), among the Borrower, Bank of America
----------------
National Trust and Savings Association, as Agent and Issuing
Bank, and the various financial institutions (including the
Lender) as are, or may from time to time become, parties thereto.
The Borrower also promises to pay interest on the unpaid
principal amount hereof from time to time outstanding from the
date hereof until maturity (whether by acceleration or otherwise)
and, after maturity, until paid, at the rates per annum and on
the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in
Applicable Currency in same day or immediately available funds to
the account designated by the Agent pursuant to the Credit
Agreement.
This Note is one of the Money Market Notes referred to in,
and evidences Indebtedness incurred under, the Credit Agreement,
to which reference is made for a statement of the terms and
conditions on which the Borrower is permitted and required to
make prepayments and repayments of principal of the Indebtedness
evidenced by this Note and on which such Indebtedness may be
declared to be immediately due and payable. This Note amends and
restates the Money Market Note dated as of November 17, 1994
executed by Borrower in favor of the Bank in connection with that
certain Amended and Restated Credit Agreement, dated as of
November 17, 1994, among the Borrower, the Agent, the Issuing
Bank and the lenders party thereto, and amounts outstanding under
such Money Market Note are deemed outstanding and owing under
this Note. Unless otherwise defined, terms used herein have the
meanings provided in the Credit Agreement.
All parties hereto, whether as makers, endorsers, or
otherwise, severally waive presentment for payment, demand,
protest and notice of dishonor.
If any payment on this Money Market Note becomes due and
payable on a date which is not a Business Day, such payment shall
be made on the next succeeding Business Day.
THIS NOTE HAS BEEN DELIVERED IN LOS ANGELES, CALIFORNIA AND
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF CALIFORNIA.
EDISON MISSION ENERGY
By_____________________________
Title:
MONEY MARKET LOANS AND PRINCIPAL PAYMENTS
Type Amount Amount of Outstanding Nota-
of of End of Prin. or Principal tion
Loan Loan Interest Int. Paid Balance Made
Date Made Made Period This Date This Date By
---- ---- ---- -------- --------- ----------- ------
EXHIBIT B-1
BORROWING REQUEST
-----------------
Bank of America National Trust
and Savings Association, Agent
Agency Administrative Services #5596
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ Kubukawa
Agency Officer
EDISON MISSION ENERGY
---------------------
Gentlemen and Ladies:
This Borrowing Request is delivered to you pursuant to
Sections 2.3 and 6.2.2 of the Second Amended and Restated Credit
------------ -----
Agreement, dated as of October 11, 1996 (together with all
amendments, if any, from time to time made thereto, the "Credit
------
Agreement"), among EDISON MISSION ENERGY, a California
---------
corporation (the "Borrower"), certain financial institutions,
--------
Bank of America National Trust and Savings Association as Issuing
Bank, and Bank of America National Trust and Savings Association
(the "Agent"). Unless otherwise defined herein or the context
-----
otherwise requires, terms used herein have the meanings provided
in the Credit Agreement.
The Borrower hereby requests that a Revolving Loan be made
in [insert Applicable Currency] the aggregate principal amount of
[___________] on __________, 19___ as a [LIBO Rate Loan having an
Interest Period of _______ months] [Base Rate Loan].
Please wire transfer the proceeds of the Borrowing to the
accounts of the following persons at the financial institutions
indicated respectively:
Amount to be Person to be Paid Name, Address
--------------------------
Transferred Name Account No. of Transferee Lender
----------- ---- ----------- --------------------
[ ] [$]_________________________________ ____________________
____________________
Attention: _________
[ ] [$]______________________________________________________
____________________
Attention: _________
Balance of The Borrower ___________ ____________________
such proceeds ____________________
Attention: _________
The Borrower has caused this Borrowing Request to be
executed and delivered by its duly Authorized Representative this
___ day of ___________, 19___.
EDISON MISSION ENERGY
By-------------------------------
Title:
EXHIBIT B-2
FORM OF LETTER OF CREDIT APPLICATION
EXHIBIT C
CONTINUATION/CONVERSION NOTICE
------------------------------
Bank of America National Trust
and Savings Association, Agent
Agency Administrative Services #5596
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ Kubukawa
Agency Officer
EDISON MISSION ENERGY
---------------------
Gentlemen and Ladies:
This Continuation/Conversion Notice is delivered to you
pursuant to Section 2.4 of the Second Amended and Restated Credit
-----------
Agreement, dated as of October 11, 1996 (together with all
amendments, if any, from time to time made thereto, the "Credit
------
Agreement"), among EDISON MISSION ENERGY, a California
---------
corporation (the "Borrower"), certain financial institutions,
--------
Bank of America National Trust and Savings Association as Issuing
Bank, and Bank of America National Trust and Savings Association,
(the "Agent"). Unless otherwise defined herein or the context
-----
otherwise requires, terms used herein have the meanings provided
in the Credit Agreement.
The Borrower hereby requests that on ____________, 19___,
(1) $___________ of the presently outstanding
principal amount of the Revolving Loans originally made on
__________, 19___ [insert Applicable Currency],
(2) and all presently being maintained as 1[Base Rate
Loans] [LIBO Rate Loans],
(3) be [converted into] [continued as],
(4) 2[LIBO Rate Loans having an Interest Period of
______ months] [Base Rate Loans].
--------------
1 Select appropriate interest rate option.
2 Insert appropriate interest rate option.
(5) in the Offshore Currency of _____________ [insert
Applicable Currency].
The Borrower has caused this Continuation/Conversion Notice
to be executed and delivered by its Authorized Representative
this ___ day of _________, 19___.
EDISON MISSION ENERGY
By
---------------------------------
Title:
EXHIBIT D
LENDER ASSIGNMENT AGREEMENT
---------------------------
To: EDISON MISSION ENERGY
To: Bank of America National Trust
and Savings Association,
as the Agent
EDISON MISSION ENERGY
---------------------
Gentlemen and Ladies:
We refer to clause (d) of Section 11.11.1 of the Second
---------- ---------------
Amended and Restated Credit Agreement, dated as of October 11,
1996 (together with all amendments and other modifications, if
any, from time to time thereafter made thereto, the "Credit
------
Agreement"), among EDISON MISSION ENERGY, a California
---------
corporation (the "Borrower"), the various financial institutions
--------
(the "Lenders") as are, or shall from time to time become,
-------
parties thereto, Bank of America National Trust and Savings
Association as Issuing Bank, and Bank of America National Trust
and Savings Association, as agent (the "Agent") for the Lenders.
-----
Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the
Credit Agreement.
This agreement is delivered to you pursuant to clause (d) of
----------
Section 11.11.1 of the Credit Agreement and also constitutes
---------------
notice to each of you, pursuant to clause (c) of Section 11.11.1
---------- ---------------
of the Credit Agreement, of the assignment and delegation to
_______________ (the "Assignee") of ___% of the Loans, L/C
--------
Obligations, and Revolving Loan Commitments of _____________ (the
"Assignor") outstanding under the Credit Agreement on the date
--------
hereof. After giving effect to the foregoing assignment and
delegation, the Assignor's and the Assignee's Percentages for the
purposes of the Credit Agreement are set forth on Schedule 2.1.
[Add paragraph dealing with accrued interest and fees with
respect to Loans assigned.]
The Assignee hereby acknowledges and confirms that it has
received a copy of the Credit Agreement and the exhibits related
thereto, together with copies of the documents which were
required to be delivered under the Credit Agreement as a
condition to the making of the Loans thereunder. The Assignee
further confirms and agrees that in becoming a Lender and in
making its Commitments and Loans under the Credit Agreement, such
actions have and will be made without recourse to, or
representation or warranty by the Agent.
Except as otherwise provided in the Credit Agreement,
effective as of the date of acceptance hereof by the Agent
(1) the Assignee
(a) shall be deemed automatically to have become
a party to the Credit Agreement, have all the rights
and obligations of a "Lender" under the Credit
Agreement and the other Loan Documents as if it were an
original signatory thereto to the extent specified in
the second paragraph hereof; and
(b) agrees to be bound by the terms and
conditions set forth in the Credit Agreement and the
other Loan Documents as if it were an original
signatory thereto; and
(2) the Assignor shall be released from its
obligations under the Credit Agreement and the other Loan
Documents to the extent specified in the second paragraph
hereof.
The Assignor and the Assignee hereby agree that the
[Assignor] [Assignee] will pay to the Agent the processing fee
referred to in Section 11.11.1 of the Credit Agreement upon the
---------------
delivery hereof.
The Assignee hereby advises each of you of the following
administrative details with respect to the assigned Loans and
Commitments and requests the Agent to acknowledge receipt of this
document:
1. Address for Notices:
Institution Name:
Attention:
Domestic Office:
Telephone:
Facsimile:
Telex (Answerback):
LIBOR Office:
Telephone:
Facsimile:
Telex (Answerback):
2. Payment Instructions:
The Assignee agrees to furnish the tax form required by the
second to last sentence of Section 4.7 (if so required) of the
-----------
Credit Agreement no later than the date of acceptance hereof by
the Agent.
This Agreement may be executed by the Assignor and Assignee
in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
Adjusted Percentage [ASSIGNOR]
-------------------
Revolving Loan
Commitment
and
Revolving Loans: __%
L/C Obligations __%
By:_______________________
Title:
Percentage [ASSIGNEE]
----------
Revolving Loan
Commitment
and
Revolving Loans: __%
L/C Obligations __%
By:_______________________
Title:
Accepted and Acknowledged
this __ day of _______, 19__
__________________________,
as Agent
By:________________________
Title:
EXHIBIT E
OPINION OF COUNSEL TO THE BORROWER
----------------------------------
[Letterhead of Assistant General Counsel]
October 11, 1996
The Lenders under the Credit Agreement
Ladies and Gentlemen:
This letter is furnished to you pursuant to Section 6.1.3
-------------
of the Second Amended and Restated Credit Agreement, dated
October 11, 1996 (the "Credit Agreement"), between EDISON MISSION
----------------
ENERGY, a California corporation (the "Borrower"), certain
--------
institutional lenders and BofA, as agent for such lenders (the
"Agent") and Issuing Bank. Terms defined in the Credit Agreement
-----
are used herein as therein defined.
I am the Assistant General Counsel of the Borrower and, in
that capacity, am familiar with the business and affairs of the
Borrower; I am, or attorneys acting under my direction are,
familiar with the proceedings taken by the Borrower in connection
with the preparation, negotiation, execution and delivery of, and
the initial borrowing made under, the Credit Agreement.
In that connection, I or attorneys working in Borrower's
legal department who are members of the bar of the State of
California have examined:
1. the Credit Agreement;
2. the Articles of Incorporation of the Borrower and
all amendments thereto (the "Charter");
-------
3. the by-laws of the Borrower and all amendments
thereto (the "By-laws");
-------
4. the other documents furnished by the Borrower
pursuant to Section 6.1 of the Credit Agreement;
-----------
5. a certificate of the Secretary of State of
California attesting to the due incorporation, continued
corporate existence and good standing of the Borrower in
that state.
I, or attorneys working in Borrower's legal department who are
members of the bar of the State of California under my
supervision, have also examined the originals, or copies
certified to my or their satisfaction, of such other corporate
records of the Borrower, certificates of public officials and of
officers of the Borrower, and agreements, instruments and other
documents, as I or they have deemed necessary as a basis for the
opinions expressed below. As to questions of fact material to
such opinions, I or they have, when relevant facts were not
independently established by me, relied, to the extent I deemed
appropriate, upon certificates of the Borrower or its officers,
or of public officials.
For purposes of this opinion, I have assumed, with your
consent, the genuineness of all signatures (other than the
signatures of officers or Authorized Representatives of the
Borrower), the authenticity of all documents submitted to me as
originals, and the conformity to authentic original documents of
all documents submitted to me as certified, conformed or
photostatic copies. I have further assumed, with your consent,
the due authorization, execution and delivery of all such
documents by all parties to such documents other than the
Borrower, including documents to which the Borrower is not a
party, and the legality, validity, and enforceability of such
documents as to and against such other parties and that all
parties other than the Borrower are duly organized, validly
existing and in good standing. Where a particular opinion is
rendered to my knowledge or awareness or similar words, it also
includes the knowledge or awareness of attorneys working under my
supervision.
I am a member of the bar of the State of California and am
therefore rendering this opinion only with respect to the laws of
the State of California and the Federal laws of the United States
of America as in effect on the date hereof.
Based upon the foregoing and upon such investigation as I
have deemed necessary, I am of the following opinion:
1. The Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the
State of California.
2. The execution, delivery and performance by the
Borrower of the Credit Agreement and the Notes are within
the Borrower's corporate powers, have been duly authorized
by all necessary corporate action, and do not contravene
(a) the Charter or the By-laws;
(b) any law, rule or regulation applicable to
the Borrower (including, without limitation,
Regulation G, T, U or X of the Board of Governors of
the Federal Reserve System); or
(c) to my knowledge, any contractual or legal
restriction binding on or affecting the Borrower. The
Credit Agreement and the Notes have been duly executed
and delivered on behalf of the Borrower.
3. No authorization, approval or other action by,
and no notice to or filing with, any governmental authority
or regulatory body or other person, including the U.S.
Securities and Exchange Commission, is required for the due
execution, delivery and performance by the Borrower of the
Credit Agreement or the Notes.
4. The Credit Agreement and the Notes are legal,
valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their respective
terms.
5. To the best of my knowledge, there is no pending
or threatened action or proceeding against the Borrower or
any of its Subsidiaries before any court, governmental
agency or arbitrator which purport to affect the legality,
validity, binding effect or enforceability of the Credit
Agreement or the Notes.
6. The Borrower is not an "investment company" or a
company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
7. The Borrower is not a "holding company" within
the meaning of the Public Utility Holding Company Act of
1935, as amended, or a "subsidiary company" of any "holding
company" that is required to register as such under said
Act.
8. The Borrower is not engaged in the business of
extending credit for the purpose of buying or carrying
margin stock (within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System).
The opinions set forth above are subject to the following
qualifications:
(a) My opinions above are subject to the effect
of any applicable bankruptcy, insolvency,
reorganization, arrangement, moratorium, fraudulent
transfer or similar law affecting creditors' rights
generally.
(b) My opinions above are subject to the effect
of general principles of equity (regardless of whether
considered in a proceeding in equity or at law).
(c) My opinions are subject to the effect of
California court decisions and statutes which require
parties to any contract to make determinations
thereunder on a reasonable basis in good faith.
This opinion letter is being furnished to the Agent and the
Lenders for their use and the use of its and their counsel. No
other use or distribution of this opinion letter may be made
without my prior written consent.
Very truly yours,
and Assistant General Counsel
EXHIBIT F
CERTIFICATE OF EDISON MISSION ENERGY
------------------------------------
I, the undersigned, [Assistant] Secretary of Edison Mission
Energy, a California corporation (the "Borrower"), DO HEREBY
--------
CERTIFY that:
1. This Certificate is furnished pursuant to Section 6.1.1
-------------
of that certain Second Amended and Restated Credit Agreement,
dated as of October 11, 1996 (the "Credit Agreement"), among the
----------------
Borrower, certain financial institutions, Bank of America
National Trust and Savings Association as Issuing Bank and Bank
of America National Trust and Savings Association (the "Agent").
Unless otherwise defined herein, capitalized terms used in this
Certificate have the meanings assigned to such terms in the
Credit Agreement.
12. There have been no amendments to the Articles of
Incorporation of the Borrower since _______, 19__.
3. Attached hereto as Exhibit I is a true, correct and
complete copy of the by-laws of the Borrower as in effect on the
date hereof.
4. Attached hereto as Exhibit II is a true, correct and
complete copy of resolutions duly adopted at a meeting of the
Board of Directors of the Borrower, convened and held on the ___
day of ____________, 19__ , which resolutions have not been
revoked, modified, amended or rescinded and are still in full
force and effect, and the Credit Agreement, the Notes and the
other Loan Documents to which the Borrower is a party are in
substantially the forms of those documents submitted to and
approved by the Board of Directors of the Borrower at such
meeting.
5. The persons named in Exhibit III attached hereto have
been duly elected, have duly qualified as and at all times since
____________, 19__ (to and including the date hereof), have been
officers of the Borrower holding the respective offices set forth
------------------
1 Insert the date of the Secretary of State's Certificate (attached
to which is a copy of the Articles of Incorporation of the Borrower) furnished
to the Agent at the execution of the Credit Agreement.
therein opposite their names, and the signatures set forth
therein opposite their names are their genuine signatures.
6. I know of no proceeding for the dissolution or
liquidation of the Borrower or threatening its existence.
WITNESS my hand and seal of the Borrower this 11th day of
October, 1996.
-----------------------------------
[Assistant Secretary]
[Affix Corporate Seal]
I, the undersigned, [Vice] President of the Borrower, DO
HEREBY CERTIFY that:
1. ___________________ is [a] the duly elected and
qualified [Assistant] Secretary of the Borrower and the signature
above is his genuine signature.
2. The representations and warranties on the part of the
Borrower contained in the Credit Agreement are as true and
correct at and as of the date hereof as though made on and as of
the date hereof.
3. No Default has occurred and is continuing, or would
result from the consummation of the initial borrowing on this
date.
WITNESS my hand on this 11th day of October, 1996.
-----------------------------------
[Vice] President
EXHIBIT 1
TO CERTIFICATE
[Copy of the by-laws of Edison Mission Energy]
EXHIBIT 3
TO CERTIFICATE
Name of Officers
----------------
and Authorized
--------------
Representatives Office Signature
--------------- ------ ---------
------------------- --------------- ---------------------
------------------- --------------- ---------------------
------------------- --------------- ---------------------
------------------- --------------- ---------------------
------------------- --------------- ---------------------
EXHIBIT G
FORM OF MONEY MARKET QUOTE REQUEST
----------------------------------
______________, 199_
To: Bank of America National Trust
and Savings Association ("Agent")
From: Edison Mission Energy
Re: Second Amended and Restated Credit Agreement (the
"Credit Agreement") dated as of October 11, 1996 among
the Borrower, the Lenders listed on the signature pages
thereof, Bank of America National Trust and Savings
Association as Issuing Bank and the Agent
We hereby give notice pursuant to Section 2.8 of the
-----------
Credit Agreement that we request Money Market Quotes for the
following proposed Money Market Borrowing(s):
Date of Borrowing: ______________
Principal Amount* Interest Period
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market
[LIBO] [Absolute Rate]. [The applicable base rate is the London
Interbank Offered Rate.]
Terms used herein have the meanings assigned to them in
the Credit Agreement.
EDISON MISSION ENERGY
By---------------------------------
Title:
____________________
* Amount must be $10,000,000 or a larger multiple of
$1,000,000.
EXHIBIT H
FORM OF INVITATION FOR MONEY MARKET QUOTES
------------------------------------------
To: [Name of Bank]
Re: Invitation for Money Market Quotes to Edison Mission
Energy (the "Borrower")
Pursuant to Section 2.8 of the Second Amended and
-----------
Restated Credit Agreement dated as of October 11, 1996 among the
Borrower, the Lenders parties thereto and the undersigned, Bank
of America National Trust and Savings Association as Issuing Bank
and Agent, we are pleased on behalf of the Borrower to invite you
to submit Money Market Quotes to the Borrower for the following
proposed Money Market Borrowing(s):
Date of Borrowing: ______________
Offshore
Principal Amount Currency Interest Period
--------- ------ -------- ---------------
$
Such Money Market Quotes should offer a Money Market
[LIBO] [Absolute Rate]. [The applicable base rate is the London
Interbank Offered Rate.]
Please respond to this invitation by no later than
[____ P.M.] [____ A.M.] (San Francisco time) on [date].
Bank of America National Trust
and Savings Association, Agent
By----------------------------
Authorized Officer
EXHIBIT I
FORM OF MONEY MARKET QUOTE
--------------------------
Bank of America National Trust
and Savings Association, as Agent
Re: Money Market Quote to Edison Mission Energy (the "Borrower")
In response to your invitation on behalf of the
Borrower dated ____________, 19__, we hereby make the following
Money Market Quote on the following terms:
1. Quoting Lender: __________________________
2. Person to contact at Quoting Lender: ______________________
3. Date of Borrowing: ______________________*
4. We hereby offer to make Money Market Loan(s) in the
following principal amounts, for the following Interest
Periods and at the following rates:
Offshore Principal Interest Money Market
Amount** Currency Period*** [LIBO****] [Absolute Rate*****]
------------ -------- ------------- -------------- ------------------------
$
$
[Provided, that the aggregate principal amount of Money
Market Loans for which the above offers may be accepted
shall not exceed $______________.]**
____________________
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not exceed
principal amount requested. Specify aggregate limitation if
the sum of the individual offers exceeds the amount of the
Lender is willing to lend. Bids must be made for $5,000,000
or a larger multiple of $1,000,000.
(notes continued on following page)
We understand and agree that the offer(s) set forth
above, subject to the satisfaction of the applicable
conditions set forth in the Second Amended and Restated
Credit Agreement dated as of October 11, 1996, among the
Borrower, the Lenders listed on the signature pages thereof
and yourselves, as Agent, irrevocably obligates us to make
the Money Market Loan(s) for which any offer(s) are
accepted, in whole or in part.
Very truly yours,
[NAME OF LENDER]
Dated:__________ By:---------------------------
Authorized Officer
____________________
*** Not less than 7 days or not more than six months, as
specified in the related Invitation. No more than five
bids are permitted for each Interest Period.
**** Margin over or under the London Interbank Offered Rate
determined for the applicable Interest Period. Specify
percentage (to the nearest 1/[10,000]th of 1%) and specify
whether "PLUS" or "MINUS".
***** Specify rate of interest per annum (to the nearest
1/[10,000]th of 1%).
EXHIBIT J
NOTICE OF MONEY MARKET BORROWING
--------------------------------
TO: Bank of America National Trust
and Savings Association (the "Agent")
FROM: Edison Mission Energy (the "Borrower")
RE: Acceptance of Offers to Make Money Market Loans
Pursuant to Section 2.8 of the Second Amended and
-----------
Restated Credit Agreement dated as of October 11, 1996, among the
Borrower, the Lenders parties thereto, Bank of America National
Trust and Savings Association as Issuing Bank and the Agent, we
hereby accept the offers made by the following Lenders to make
Money Market Loans on the Date of Borrowing specified below to
the extent set forth below.
Name of [Money Market
Date of Offeror Principal Interest Margin]
Borrowing Bank Amount Currency Period [Absolute Rate]
--------- ------- --------- -------- -------- ---------------
Any offer made by any Lender to make Money Market Loans on the Date
of Borrowing set forth above is, to the extent not accepted above, hereby
rejected.
EDISON MISSION ENERGY
By---------------------------------
Authorized Representative