MULTI-YEAR REVOLVING CREDIT AGREEMENT
dated as of
May 10, 2002
among
SOUTHWEST GAS CORPORATION,
as Borrower,
THE LENDERS LISTED ON THE SIGNATURE PAGES HERETO
and
THE BANK OF NEW YORK,
as Administrative Agent,
BANK OF AMERICA, N.A.,
as Syndication Agent,
BANK ONE, N.A.,
as Co-Documentation Agent,
UNION BANK OF CALIFORNIA,
as Co-Documentation Agent,
BNY CAPITAL MARKETS, INC.,
as Co-Lead Arranger and Book Manager,
BANC OF AMERICA SECURITIES, INC.,
as Co-Lead Arranger and Book Manager, and
BANK ONE CAPITAL MARKETS, INC.,
as Co-Arranger
$125,000,000
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS....................................................................................1
Section 1.01 Definitions.................................................................1
ARTICLE II THE CREDIT FACILITY..........................................................................19
Section 2.01 Revolving Credit Loans.....................................................19
Section 2.02 Borrowing Procedure........................................................19
Section 2.03 Termination and Reduction and Increase of Commitments......................19
Section 2.04 Repayment..................................................................21
Section 2.05 Optional Prepayment........................................................21
ARTICLE III INTEREST AND FEES...........................................................................21
Section 3.01 Interest Rate Determination; Conversion....................................21
Section 3.02 Interest on ABR Revolving Loans............................................22
Section 3.03 Interest on Eurodollar Revolving Loans.....................................22
Section 3.04 Interest on Overdue Amounts................................................23
Section 3.05 Day Counts.................................................................23
Section 3.06 Maximum Interest Rate......................................................24
Section 3.07 Commitment Fees; Utilization Fee...........................................24
ARTICLE IV DISBURSEMENT AND PAYMENT.....................................................................26
Section 4.01 Disbursement...............................................................26
Section 4.02 Method and Time of Payments; Sharing among Lenders.........................26
Section 4.03 Compensation for Losses....................................................27
Section 4.04 Withholding and Additional Costs...........................................28
Section 4.05 Funding Impracticable......................................................31
Section 4.06 Expenses; Indemnity........................................................31
Section 4.07 Survival...................................................................32
Section 4.08 Substitution of a Lender...................................................32
ARTICLE V REPRESENTATIONS AND WARRANTIES................................................................33
Section 5.01 Representations and Warranties.............................................33
Section 5.02 Survival...................................................................38
ARTICLE VI CONDITIONS PRECEDENT.........................................................................38
Section 6.01 Conditions to the Availability of the Commitments..........................38
Section 6.02 Conditions to All Loans....................................................40
Section 6.03 Satisfaction of Conditions Precedent.......................................40
ARTICLE VII COVENANTS...................................................................................41
i
Section 7.01 Affirmative Covenants......................................................41
Section 7.02 Negative Covenants.........................................................45
Section 7.03 Financial Covenants........................................................48
ARTICLE VIII EVENTS OF DEFAULT..........................................................................48
Section 8.01 Events of Default..........................................................48
ARTICLE IX THE ADMINISTRATIVE AGENT.....................................................................51
Section 9.01 The Agency.................................................................51
Section 9.02 The Administrative Agent's Duties..........................................51
Section 9.03 Limitation of Liabilities..................................................51
Section 9.04 The Administrative Agent as a Lender.......................................52
Section 9.05 Lender Credit Decision.....................................................52
Section 9.06 Indemnification............................................................52
Section 9.07 Successor Administrative Agent.............................................53
ARTICLE X EVIDENCE OF LOANS; TRANSFERS..................................................................53
Section 10.01 Evidence of Loans; Revolving Credit Notes..................................53
Section 10.02 Participations.............................................................54
Section 10.03 Assignments................................................................54
Section 10.04 Certain Pledges............................................................55
ARTICLE XI MISCELLANEOUS................................................................................55
Section 11.01 APPLICABLE LAW.............................................................55
Section 11.02 WAIVER OF JURY.............................................................55
Section 11.03 Jurisdiction and Venue.....................................................56
Section 11.04 Set-off....................................................................56
Section 11.05 Confidentiality............................................................56
Section 11.06 Integration; Amendments and Waivers........................................57
Section 11.07 Cumulative Rights; No Waiver...............................................58
Section 11.08 Notices....................................................................58
Section 11.09 Separability...............................................................59
Section 11.10 Parties in Interest........................................................59
Section 11.11 Execution in Counterparts..................................................59
ii
SCHEDULE
Schedule I Lenders and Commitments
EXHIBITS
Exhibit A Form of Borrowing Request for Revolving Credit Loans
Exhibit B Form of Conversion Request
Exhibit C Form of Revolving Credit Note
Exhibit D Form of Opinion of Borrower's Counsel
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Confidentiality Agreement
Exhibit G Form of Increase Request
iii
MULTI-YEAR REVOLVING CREDIT AGREEMENT, dated as of May 10, 2002, among
SOUTHWEST GAS CORPORATION, a California corporation (the "Borrower"), each of
the lenders from time to time parties to this Agreement (collectively, the
"Lenders"), and THE BANK OF NEW YORK, as Administrative Agent (the
"Administrative Agent").
WITNESSETH:
WHEREAS, the Borrower has requested the Lenders severally to commit to
lend to the Borrower up to $125,000,000 on a revolving basis for general
corporate purposes, including, without limitation, for commercial paper back-up;
WHEREAS, the Lenders are willing to make such loans, on the terms and
conditions provided herein;
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
-----------
Section 1.01 Definitions.
------------
(a) TERMS GENERALLY. The definitions ascribed to terms in this
Agreement apply equally to both the singular and plural forms of such terms.
Whenever the context may require, any pronoun shall be deemed to include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be interpreted as if followed by the phrase
"without limitation". The phrase "individually or in the aggregate" shall be
deemed general in scope and not to refer to any specific Section or clause of
this Agreement. All references herein to Articles, Sections, Exhibits and
Schedules shall be deemed references to Articles and Sections of, and Exhibits
and Schedules to, this Agreement unless the context shall otherwise require. The
table of contents, headings and captions herein shall not be given effect in
interpreting or construing the provisions of this Agreement. Except as otherwise
expressly provided herein, all references to "dollars" or "$" shall be deemed
references to the lawful money of the United States of America.
(b) ACCOUNTING TERMS. Except as otherwise expressly provided herein,
the term "consolidated" and all other terms of an accounting nature shall be
interpreted and construed in accordance with GAAP, as in effect from time to
time; provided, however, that, for purposes of determining compliance with any
covenant set forth in Article VII, such terms shall be construed in accordance
with GAAP as in effect on the date of this Agreement, applied on a basis
consistent with the construction thereof applied in preparing the Borrower's
audited financial statements referred to in Section 5.01(k). If there shall
occur a change in GAAP which but for the foregoing proviso would affect the
computation used to determine compliance with any covenant set forth in Article
VII, the Borrower and the Lenders agree to negotiate in good faith in an effort
to agree upon an amendment to this Agreement that will permit compliance with
such covenant to be determined by reference to GAAP as so changed while
affording the Lenders the protection intended to be afforded by such covenant
prior to such change (it being understood, however, that such covenant shall
remain in full force and effect in accordance with its existing terms unless and
until such amendment shall become effective).
(c) OTHER TERMS. The following terms have the meanings ascribed to
them below or in the Sections of this Agreement indicated below:
"ABR REVOLVING LOANS" means Revolving Credit Loans that bear interest
at a rate or rates determined by reference to the Alternate Base Rate.
"ACQUISITION" means any purchase or other acquisition of (a) any assets
of any other Person that, taken together, constitute a business unit, (b) any
capital stock of or equity interests in any other Person if, immediately
thereafter, such other Person would be a Subsidiary of the Borrower or a
Subsidiary of a Subsidiary of the Borrower, or (c) any assets of any other
Person otherwise not in the ordinary course of business.
"ACQUISITION CONSIDERATION" has the meaning assigned to such term in
Section 7.02(c) hereof.
"ADMINISTRATIVE AGENT" means The Bank of New York, acting in the
capacity of administrative agent for the Lenders, or any successor
administrative agent appointed pursuant to the terms of this Agreement.
"ADMINISTRATIVE QUESTIONNAIRE" means an administrative details reply
form delivered by a Lender to the Administrative Agent, in substantially the
form provided by the Administrative Agent or the form attached to an Assignment
and Acceptance.
"AFFILIATE" means, when used with reference to any Person, a Person
(other than a Subsidiary) which directly or indirectly controls, is controlled
by, or is under common control with, such other Person. For purposes of this
definition, "control" (including with correlative meanings, the terms
"controlling," "controlled by" and "under common control with," as applied to
any Person, means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of that Person, whether
through the ownership of voting securities or by contract or otherwise.
"AGREEMENT" means this Multi-Year Revolving Credit Agreement, as it may
be amended, modified or supplemented from time to time.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to the
greater of:
2
(i) the rate of interest from time to time publicly announced
by the Administrative Agent in The City of New York as its prime
commercial loan rate in effect on such day; and
(ii) the sum of (a) 1/2 of 1% per annum and (b) the Federal
Funds Rate in effect on such day.
The Alternate Base Rate shall change as and when the greater of the foregoing
rates shall change. Any change in the Alternate Base Rate shall become effective
as of the opening of business on the day of such change.
"APPLICABLE LENDING OFFICE" means, with respect to a Loan, the
applicable office of the Lender for making such Loan, as specified in Schedule 1
or in an Administrative Questionnaire delivered to the Administrative Agent as
the office from which such Lender makes Loans of the relevant type.
"APPLICABLE MARGIN" means, at any date and with respect to each
Revolving Credit Loan during which the applicable Pricing Level set forth below
is in effect, the percentage set forth below adjacent to such Pricing Level:
--------------------------------------------------------------------------------
Pricing Applicable Applicable
Level Margin Margin
----- ------ ------
--------------------------------------------------------------------------------
Eurodollar Revolving Loans ABR Revolving Loans
-------------------------- -------------------
--------------------------------------------------------------------------------
I 0.500% 0.000%
--------------------------------------------------------------------------------
II 0.750% 0.000%
--------------------------------------------------------------------------------
III 0.875% 0.000%
--------------------------------------------------------------------------------
IV 1.125% 0.000%
--------------------------------------------------------------------------------
V 1.375% 0.125%
--------------------------------------------------------------------------------
"ASSIGNEE" has the meaning assigned to such term in Section 10.03.
"ASSIGNMENT AND ACCEPTANCE" has the meaning assigned to such term in
Section 10.03.
"AVAILABLE COMMITMENT" means, on any day, an amount equal to (a) the
Total Commitment on such day minus (b) the aggregate outstanding principal
amount of Loans on such day.
"BORROWER" has the meaning assigned to such term in the preamble.
3
"BORROWING DATE" means, with respect to any Loan, the Business Day set
forth in the relevant Borrowing Request as the date upon which the Borrower
desires to borrow such Loan.
"BORROWING REQUEST" means a request, substantially in the form of
Exhibit A, by the Borrower for Loans, which shall specify (a) the requested
Borrowing Date, (b) the aggregate amount of such Loans, and (c) (i) whether such
Loans are to bear interest initially as ABR Revolving Loans or Eurodollar
Revolving Loans and (ii) if applicable, the initial Interest Period therefor.
"BUSINESS DAY" means any day that is (a) not a Saturday, Sunday or
other day on which commercial banks in the City of New York and California are
authorized by law to close and (b) with respect to any Eurodollar Revolving
Loan, a day on which commercial banks are open for domestic and international
business (including dealings in U.S. dollar deposits) in London.
"CAPITAL EXPENDITURES" means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including that
portion of Capital Leases that is capitalized on the consolidated balance sheet
of the Borrower and its Subsidiaries) by the Borrower and its Subsidiaries
during such period that are included in the property, plant or equipment
reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries.
"CAPITAL LEASE" means, as to the Borrower and its Subsidiaries, a lease
of (or other agreement conveying the right to use) real and/or personal
Property, the obligations with respect to which are required to be classified
and accounted for as a capital lease on a balance sheet of the Borrower or any
of its Subsidiaries under GAAP (including Statement of Financial Accounting
Standards No. 13 of the Financial Accounting Standards Board).
"CAPITAL LEASE OBLIGATIONS" means, as to the Borrower and its
Subsidiaries, the obligations of the Borrower or any of its Subsidiaries to pay
rent or other amounts under a Capital Lease and, for purposes of this Agreement,
the amount of such obligations shall be the capitalized amount thereof,
determined in accordance with GAAP (including such Statement No. 13 referenced
in the definition of "Capital Lease").
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, and any regulation promulgated
thereunder.
"CHANGE IN CONTROL" means the occurrence of either of the following
conditions: (a) any Person or group of associated Persons acting in concert
shall have acquired an aggregate of more than 51 % of the outstanding shares of
voting stock of the Borrower, or (b) individuals who constitute the board of
directors of the Borrower on the date hereof (the "INCUMBENT BOARD") cease for
any reason to constitute at least a majority thereof, provided that any person
becoming a director subsequent to the date hereof whose election, or nomination
4
for election by the Borrower's shareholders, was approved by a vote of a
majority of the directors comprising the Incumbent Board (either by a specific
vote or by approval of the proxy statement of the Borrower in which such person
is named as a nominee for director, without objection to such nomination) shall
be, for purposes of this clause (b), considered as though such person were a
member of the Incumbent Board.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COMMITMENT" means, with respect to a Lender, the amount set forth
opposite such Lender's name under the heading "Commitment" on Schedule 1, as
such amount may be reduced from time to time pursuant to Section 2.03.
"COMMITMENT FEE" has the meaning assigned to such term in Section
3.07(a).
"CONFIDENTIAL INFORMATION" means information delivered to the
Administrative Agent for the Lenders or to a Lender by or on behalf of the
Borrower in connection with the transactions contemplated by or otherwise
pursuant to this Agreement that is confidential or proprietary in nature at the
time it is so delivered or information obtained by the Administrative Agent or
such Lender in the course of its review of the books or records of the Borrower
contemplated herein; provided that such term shall not include information (a)
that was publicly known or otherwise known to the Administrative Agent or such
Lender prior to the time of such disclosure, (b) that subsequently becomes
publicly known through no act or omission by the Administrative Agent or such
Lender or any Person acting on the Administrative Agent or such Lender's behalf,
(c) that otherwise becomes known from a third party who the Administrative Agent
or such Lender did not know or have reason to believe received such information
in a restricted or unlawful manner or (d) that constitutes financial information
delivered to the Administrative Agent or such Lender that is otherwise publicly
available.
"CONTINGENT OBLIGATION" means, for the Borrower and its Subsidiaries,
any direct or indirect Contractual Obligation with respect to any Debt, lease,
dividend, letter of credit or other obligation (the "primary obligations") of
another Person (the "primary obligor"), including, without limitation, any
obligation of the Borrower or any Subsidiary, whether or not contingent, (a) to
purchase, repurchase or otherwise acquire such primary obligations or any
Property constituting direct or indirect security therefor, or (b) to advance or
provide funds (i) for the payment or discharge of any such primary obligation,
or (ii) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency or any balance sheet item, level
of income or financial condition of the primary obligor prior to such obligation
being a stated or determinable amount, or (c) to purchase Property, securities
or services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation, or (d) otherwise to assure or hold harmless the holder of any such
primary obligation against loss in respect thereof. The amount of any Contingent
5
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or if indeterminable, the maximum reasonably
anticipated liability in respect thereof, except as specified in clause (b)(ii)
above.
"CONTRACTUAL OBLIGATIONS" means, as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its Property is bound.
"CONTROLLED GROUP" means the Borrower and all Persons (whether or not
incorporated) under common control or treated as a single employer with the
Borrower or any of its Subsidiaries pursuant to Section 414(b), (c), (m) or (o)
of the Code.
"CONVERSION DATE" means, with respect to a Loan, the date on which a
conversion of interest rates on such Loan shall take effect.
"CONVERSION REQUEST" means a request, substantially in the form of
Exhibit B, by the Borrower to convert the interest rate basis for all or
portions of outstanding Revolving Credit Loans, which shall specify (a) the
requested Conversion Date, which shall be not fewer than three Business Days
after the date of such Conversion Request, (b) the aggregate amount of such
Revolving Credit Loans, on and after the Conversion Date, which are to bear
interest as ABR Loans or Eurodollar Revolving Loans and (c) the term of the
Interest Periods therefor, if any.
"CPUC ORDER" means, collectively, the Opinion, dated April 22, 2002,
and the Order, dated April 24, 2002, of the California Public Utilities
Commission.
"CREDIT DOCUMENTS" means this Agreement and the Notes.
"DEBT" means, with respect to the Borrower and its Subsidiaries, (a)
all obligations for borrowed money, including interest or fees of any nature
related to the borrowing of money accrued but unpaid, (b) all obligations under
letters of credit, bills of exchange or bankers acceptances, (c) all obligations
representing the deferred purchase price of Property or services which in
accordance with GAAP would be shown on the balance sheet as a liability, (d) all
obligations, whether or not assumed by or with recourse to such Person, secured
by Liens upon, or payable out of the proceeds or production from, assets owned
by such Person, (e) all Capital Lease Obligations, and (f) all Contingent
Obligations.
"DEFAULT" means any event or circumstance which, with the giving of
notice or the passage of time, or both, would be an Event of Default.
"EFFECTIVE DATE" has the meaning assigned to such term in Section 6.01.
6
"ENVIRONMENTAL CLAIM" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law or for release or injury
to the environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources damage, or
otherwise alleging liability or responsibility for damages (punitive or
otherwise), cleanup, removal, remedial or response costs, restitution, civil or
criminal penalties, injunctive relief, or other type of relief, resulting from
or based upon (a) the presence, placement, discharge, emission or release
(including intentional and unintentional, negligent and non-negligent, sudden or
non-sudden, accidental or non-accidental placement, spills, leaks, discharges,
emissions or releases) of any hazardous material at, in or from Property,
whether or not owned by the Borrower, or (b) any other circumstances forming the
basis of any violation, or alleged violation, of any Environmental Law.
"ENVIRONMENTAL LAWS" means all federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authorities, in each case
relating to environmental, health, safety and land use matters; including
CERCLA, the Clean Air Act, the Federal Water Pollution Control Act of 1972, the
Solid Waste Disposal Act, the Federal Resource Conservation and Recovery Act and
the Toxic Substances Control Act.
"ENVIRONMENTAL PERMITS" shall have the meaning ascribed to such term in
Section 5.01(1)(ii).
"EQUITY ISSUANCE" means the issuance of any equity securities or the
receipt of any capital contribution, in each case, by the Borrower or any
Subsidiary, other than (a) any issuance of equity securities to, or receipt of
any such capital contribution from, the Borrower, (b) the issuance of stock in
connection with an Acquisition, or (c) the issuance of common stock pursuant to
a stock option plan, dividend reinvestment plan, employee benefit investment
plan or for executive compensation, in each case, in the ordinary course of
business.
"ERISA" means the Employee Retirement Income Security Act of 1974 and
any regulation promulgated thereunder.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with the Borrower or any Subsidiary of the
Borrower within the meaning of Section 414(b), 414(c) or 414(m) of the Code.
"ERISA EVENT" means (a) a Reportable Event with respect to a Qualified
Plan or a Multiemployer Plan; (b) a withdrawal by any member of the Controlled
Group from a Qualified Plan subject to Section 4063 of ERISA during a plan year
in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA); (c) a complete or partial withdrawal by any member of the Controlled
Group from a Multiemployer Plan; (d) the filing of a notice of intent to
7
terminate, the treatment of a plan amendment as a termination under Section 4041
or 4041A of ERISA or the commencement of proceedings by the PBGC to terminate a
Qualified Plan or Multiemployer Plan subject to Title IV of ERISA; (e) a failure
to make required contributions to a Qualified Plan or Multiemployer Plan; (f) an
event or condition which might reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Qualified Plan or Multiemployer Plan; (g) the
imposition of any liability under Title IV of ERISA, other than PBGC premiums
due but not delinquent under Section 4007 of ERISA, upon any member of the
Controlled Group; (h) an application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code with respect to any
Qualified Plan; (i) any member of the Controlled Group engaging in or otherwise
becoming liable for a non-exempt prohibited transaction; or (j) a violation of
the applicable requirements of Section 404 or 405 of ERISA or the exclusive
benefit rule under Section 401 (a) of the Code by any fiduciary with respect to
any Qualified Plan for which the Borrower or any of its Subsidiaries may be
directly or indirectly liable.
"EURODOLLAR LENDING OFFICE" initially, the office of each Lender
through which it will be making or maintaining Eurodollar Revolving Loans, as
reported by such Lender to the Administrative Agent.
"EURODOLLAR REVOLVING LOANS" means Revolving Credit Loans that bear
interest at a rate or rates determined by reference to LIBOR.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day, the percentage
prescribed by the Federal Reserve Board for determining the maximum reserve
requirement (including any marginal, supplemental or emergency reserve
requirements) on such day for a member bank of the Federal Reserve System in
respect of "Eurocurrency Liabilities" (as defined in Regulation D of the Federal
Reserve Board (or any successor regulation), as amended from time to time) for
other deposits having a maturity approximately equal to the applicable Interest
Period.
"EVENT OF DEFAULT" has the meaning assigned to such term in Section
8.01.
"EXCLUDED TAXES" means all present and future taxes, levies, imposts,
duties, deductions, withholdings, fees, liabilities and similar charges imposed
on or measured by the overall net income of any Lender (or any office, branch or
subsidiary of such Lender) or any franchise taxes, taxes on doing business or
taxes measured by capital or net worth imposed on any Lender (or any office,
branch or subsidiary of such Lender), in each case imposed by the United States
of America or any political subdivision or taxing authority thereof or therein,
or taxes on or measured by the overall net income of any office, branch or
subsidiary of a Lender or any franchise taxes, taxes imposed on doing business
or taxes measured by capital or net worth imposed on any office, branch or
subsidiary of such Lender, in each case imposed by any foreign country or
subdivision thereof in which such Lender's principal office or Eurodollar
Lending Office is located.
8
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded,
if necessary, to the next greater l/16 of 1 %) equal to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (i) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day, and (ii) if no such rate is so published on such next succeeding
Business Day, then the Federal Funds Rate for such day shall be the average rate
quoted to the Administrative Agent on such day on such transactions, as
determined by the Administrative Agent.
"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal
Reserve System (or any successor Governmental Authority).
"FUNDED DEBT" means, for the Borrower and its Subsidiaries, (a) all
obligations for borrowed money, (b) all obligations representing the deferred
purchase price of Property or services which in accordance with GAAP would be
shown on a balance sheet of such Person as a liability due more than 12 months
from the date of the occurrence or evidenced by a note or similar instrument,
(c) all Capital Lease Obligations, (d) all Contingent Obligations and (e)
Preferred Securities with an aggregate stated liquidation amount in excess of
7.5% of Total Capitalization.
"GAAP" means generally accepted accounting principles, as set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entities as may be approved by a significant segment of
the accounting profession of the United States of America.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"HAZARDOUS MATERIALS" means all those substances which are regulated
by, or which may form the basis of liability under, any Environmental Law,
including all substances identified under any Environmental Law as a pollutant,
contaminant, waste, solid waste, hazardous waste, hazardous constituent, special
waste, hazardous substance, hazardous material, or toxic substance, or petroleum
or petroleum derived substance or waste.
"INCREASE REQUEST" means a request by the Borrower for an increase of
the Total Commitment in accordance with Section 2.03.
"INCREMENTAL LENDER" has the meaning assigned to such term in Section
2.03(c).
9
"INCUMBENT BOARD" has the meaning specified in the definition of
"Change of Control."
"INDEMNITEE" has the meaning assigned to such term in Section 4.06.
"INTEREST PERIOD" means, with respect to any Eurodollar Revolving Loan,
each one week, or one, two, three or six-month period, or if made available by
all Lenders, periods of twelve months, such period being the one selected by the
Borrower pursuant to Section 2.02 or 3.01 and commencing on the date such Loan
is made or at the end of the preceding Interest Period, as the case may be;
PROVIDED, HOWEVER, that:
(a) any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next 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;
(b) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (c) below, end on the last Business
Day of a calendar month; and
(c) any Interest Period that would otherwise end after the
Termination Date then in effect shall end on the Termination Date.
"INVESTMENTS" means any direct or indirect purchase or acquisition of
any obligations or other securities of, or any interest in, any Person (other
than purchases or acquisitions constituting an Acquisition), or any advance
(other then advances to employees for expenses incurred in the ordinary course
of business), loan, extension of credit or capital contribution to, or any other
investment in, any Person including, without limitation, any Affiliates of such
Person.
"IRS" means the Internal Revenue Service.
"LEASE OBLIGATIONS" means, as of the date of any determination thereof,
for the Borrower and its Subsidiaries the aggregate rental commitments under
leases for real and/or personal Property (net of income received or receivable
(if no default), from subleases thereof, but including taxes, insurance,
maintenance and similar expenses which the lessee is obligated to pay under the
terms of said leases), whether or not such obligations are reflected as
liabilities or commitments on a balance sheet of the Borrower or any Subsidiary
or in the notes thereto, excluding, however, Capital Lease Obligations.
"LENDERS" has the meaning assigned to such term in the preamble.
"LIBOR" means, with respect to any Interest Period, the rate per annum
determined by the Administrative Agent to be the offered rate for dollar
10
deposits with a term comparable to such Interest Period that appears on the
display designated as Page 3750 on the Dow ▇▇▇▇▇ Telerate Service (or such other
page as may replace such page on such service, or on another service designated
by the British Bankers' Association, for the purpose of displaying the rates at
which dollar deposits are offered by leading banks in the London interbank
deposit market) at approximately 11:00 A.M., London time, on the second Business
Day preceding the first day of such Interest Period. If such rate does not
appear on such page, "LIBOR" shall mean the arithmetic mean (rounded, if
necessary, to the next higher 1/16 of 1%) of the respective rates of interest
communicated by the LIBOR Reference Bank to the Administrative Agent as the rate
at which U.S. dollar deposits are offered to the LIBOR Reference Bank by leading
banks in the London interbank deposit market at approximately 11:00 A.M., London
time, on the second Business Day preceding the first day of such Interest Period
in an amount substantially equal to the respective LIBOR Reference Amounts for a
term equal to such Interest Period.
"LIBOR Reference Amount" means, with respect to any LIBOR Reference
Bank and Interest Period, the amount of the Eurodollar Revolving Loan of the
Lender which is, or is affiliated with, such LIBOR Reference Bank, scheduled to
be outstanding during that Interest Period (without taking into account any
assignment or participation and rounded up to the nearest integral multiple of $
1,000,000).
"LIBOR Reference Bank" means The Bank of New York; provided that if the
LIBOR Reference Bank assigns its Commitment or all its Loans to an unaffiliated
institution, such Person shall be replaced as a LIBOR Reference Bank by the
Administrative Agent's appointment, in consultation with the Borrower and with
the consent of the Required Lenders, of another bank which is a Lender (or an
Affiliate of a Lender).
"LIEN" means any voluntary or involuntary mortgage, assignment, pledge,
security interest, encumbrance, lien, claim or charge of any kind on or with
respect to, or any preferential arrangement with respect to the payment of any
obligations with the proceeds or from the production of, any asset of any kind,
including, without limitation, any agreement to give any of the foregoing, any
conditional sale or other title retention agreement or any lease in the nature
thereof.
"LOANS" means Revolving Credit Loans.
"MARGIN STOCK" means "margin stock" as such term is defined in
Regulations G, T, U or X of the Federal Reserve Board.
"MATERIAL ADVERSE EFFECT" means a change, or announcement of a change,
which would reasonably be expected, immediately or with the passage of time, to
result in a material adverse change in, or a material adverse effect upon, any
of (i) the operations, business, Properties, condition (financial or otherwise)
or prospects of the Borrower or the Borrower and its Subsidiaries taken as a
whole, (ii) the ability of the Borrower timely to perform any of its material
11
obligations, or of the Lenders to exercise any remedy, under any Credit Document
or (iii) the legality, validity, binding nature or enforceability of any Credit
Document.
"MATURITY DATE" means May 10, 2005, or such earlier date on which the
Notes shall become due and payable, whether by acceleration or otherwise.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor
thereto that is a nationally recognized rating agency.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" (within the meaning
of Section 4001 (a)(3) of ERISA) and to which any member of the Controlled Group
makes, is making, or is obligated to make contributions or has made, or been
obligated to make, contributions.
"NET WORTH" means the amount of (a) Borrower's common shareholders'
equity determined in accordance with GAAP, plus (b) preferred and preference
stock, plus (c) Preferred Securities with an aggregate stated liquidation amount
of 7.5% or less of Total Capitalization.
"NEW LENDER" has the meaning assigned to such term in Section 2.03(c).
"NOTICE OF LIEN" means any "notice of lien" or similar document filed
or recorded with any court, registry, recorder's office, central filing office
or Governmental Authority for the purpose of evidencing, creating, perfecting or
preserving the priority of a Lien securing obligations owing to a Governmental
Authority.
"OBLIGATIONS" means the Loans and any other liability or duty owing by
the Borrower to the Administrative Agent or any Lender or Indemnitee hereunder.
"PARTICIPANT" has the meaning assigned to such term in Section 10.02.
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor
Governmental Authority).
"PENSION PLAN" means a Plan that (i) is an employee pension benefit
plan, as defined in Section 3(3) of ERISA (other than a Multiemployer Plan) and
(ii) is subject to the provisions of Title IV of ERISA or is subject to the
minimum funding standards under Section 412 of the Code.
"PERMITTED INVESTMENTS" means Investments made by the Borrower and its
Subsidiaries in the ordinary course of business as presently conducted or
transactions permitted by Section 7.02(b), provided that the Borrower may only
make cash Investments in (a) U.S. government and agency securities; (b) money
market funds rated AA or A-1 or better by S&P and Aaa or P-1 or better by
Moody's; (c) municipal securities rated within the top two ratings by S&P and
12
Moody's; (d) repurchase agreements with reputable financial institutions fully
secured by collateral consisting of securities described in clauses (a) and (b)
above having a market value at least equal to 102% of the amount so invested;
(e) bankers' acceptances issued by a bank rated Aaa or better by Moody's or
rated AA or better by S&P and eligible for purchase by a Federal Reserve Bank;
(f) interest-bearing demand or time deposits (including certificates of deposit)
in banks and savings and loan associations, provided such deposits are (i)
secured at all times, in the manner and to the extent provided by law, by
collateral consisting of securities described in clauses (a) and (b) above
having a market value of no less than 102% of the amount of moneys so invested
or (ii) fully insured by federal deposit insurance; (g) shares of any "regulated
investment company" within the meaning of Section 851(a) of the Code, the assets
of which consist only of securities or investments described in clauses (a)
through (f) above; (h) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof) which
have been rated at least A-1 by S&P and at least P-1 by Moody's at the time of
such investment; (i) other obligations of corporations which have been rated at
least AA by S&P and at least Aaa by Moody's at the time of such investment; (j)
open ended mutual funds, as regulated by Rule 2a-7 under the Investment Company
Act of 1940 and whose net asset value remains a constant $1 a share; (k)
investments directed by the Borrower in conjunction with industrial development
revenue bonds, and (1) Subsidiaries, Affiliates and transactions permitted by
Section 7.02(b).
"PERMITTED LIENS" means any of the following:
(a) Liens on any Property acquired, constructed, or improved
by the Borrower or its Subsidiaries after the Effective Date that are
created or assumed contemporaneously with, or within 120 days after,
such acquisition or completion of the construction or improvement, or
within six months thereafter pursuant to a firm commitment for
financing arranged with a lender or investor within such 120-day
period, to secure or provide for the payment of all or any part of the
purchase price of such Property or the cost of such construction or
improvement incurred after the Effective Date or, in addition to Liens
contemplated by clauses (b) and (c) below, Liens on any Property
existing at the time of acquisition thereof, provided that the Liens
shall not apply to any Property theretofore owned by the Borrower or
its Subsidiaries other than, in the case of any such construction or
improvement, any theretofore unimproved Property on which the Property
so constructed or the improvement is located;
(b) Existing Liens on any Property or indebtedness of a
corporation that is merged with or into or consolidated with the
Borrower or its Subsidiaries or becomes a Subsidiary; provided that the
Liens shall not apply to any Property theretofore owned by the Borrower
or its Subsidiaries;
13
(c) Liens in favor of the United States of America, any state
or any foreign country or any department, agency or instrumentality or
political subdivision of any such jurisdiction to secure partial,
progress, advance or other payment pursuant to any contract or statute
or to secure any indebtedness incurred for the purpose of financing all
or any part of the purchase price or cost of constructing or improving
the Property subject to such Liens, including, without limitation,
Liens to secure debt of the pollution control or industrial revenue
bond type;
(d) Liens on current assets of the Borrower or its
Subsidiaries to secure loans to the Borrower or its Subsidiaries which
mature within 12 months from the creation thereof and which are made in
the ordinary course of business;
(e) Liens on any Property (including any natural gas, oil or
other mineral property of the Borrower or its Subsidiaries) to secure
all or part of the cost of exploration or drilling for or development
of oil or gas reserves or laying a pipeline or to secure debt incurred
to provide funds for any such purpose;
(f) Any Lien existing on Property of the Borrower or its
Subsidiaries on the Effective Date;
(g) Liens on moneys or U.S. Government obligations deposited
pursuant to Article Thirteen of the Borrower's July 15, 1996 Indenture
and Article Four of the Borrower's August 1, 1986 Indenture;
(h) Liens for the sole purpose of extending, renewing or
replacing, in whole or in part, Liens securing debt of the type
referred to in the foregoing clauses (a) through (g), inclusive, or
this clause (h); provided, however, that the principal amount of debt
so secured at the time of such extension, renewal or replacement shall
not be increased, and that such extension or replacement shall be
limited to all or part of the Property or indebtedness which secured
the Lien so extended, renewed or replaced (plus improvements on such
Property);
(i) Carriers, warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the
ordinary course of business which are not delinquent or remain payable
without penalty and which are being contested in good faith and by
appropriate proceedings;
(j) Liens (other than any Lien imposed by ERISA) on Property
of the Borrower or any of its Subsidiaries incurred, or pledges or
deposits required, in connection with workers compensation,
unemployment insurance and other social security legislation;
(k) Liens on Property of the Borrower or any of its
Subsidiaries securing (i) the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, and
14
(ii) obligations on surety and appeal bonds, and (iii) other
obligations of a like nature incurred in the ordinary course of
business;
(1) Licenses, easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business which,
in the aggregate, are not substantial in amount, and which do not in
any case materially detract from the value of the Property subject
thereto or interfere with the ordinary conduct of the businesses of the
Borrower and its Subsidiaries;
(m) Liens on the Property of a Subsidiary (i) other than a
Significant Subsidiary which could not reasonably be expected to have a
Material Adverse Effect and (ii) Liens on the Property of Northern
Pipeline Construction, Co.;
(n) Intellectual property licenses;
(o) Any attachment or judgment Lien not constituting an Event
of Default under Section 8.01(e); and
(p) Leases or subleases granted to others not interfering in
any material respect with the ordinary conduct of the business of the
Borrower and UCC financing statements relating solely thereto.
"PERSON" means any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, entity or
government (whether federal, state, county, city, municipal or otherwise,
including any instrumentality, division, agency, body or department thereof).
"PLAN" means an employee benefit plan (as defined in Section 3(a) of
ERISA) which the Borrower or any member of the Controlled Group sponsors or
maintains or to which the Borrower or member of the Controlled Group makes or is
obligated to make contributions, and includes any Multiemployer Plan or
Qualified Plan.
"PREFERRED SECURITIES" means any preferred securities issued by a
financing entity (i.e., partnership, trust, limited liability company, etc.)
used exclusively to raise capital for the Borrower having the following
structural characteristics: (a) the financing entity is capitalized by a nominal
equity investment from the Borrower and the remainder through preferred
securities issued by the financing entity, (b) the financing entity lends the
proceeds from the issuance of preferred securities to the Borrower in exchange
for subordinated debt securities (which debt securities are subordinated in all
respects to the Funded Debt of the Borrower, except for Funded Debt which by its
terms is expressly subordinated to or pari passu with such debt securities), (c)
the Borrower makes periodic interest payments (associated with the subordinated
debt securities) to the financing entity which, in turn, are used to make
corresponding payments to holders of the preferred securities of the financing
15
entity, (d) the subordinated debt securities issued by the Borrower and
corresponding preferred securities issued by the financing entity have a
maturity of at least thirty years, (e) interest payments on the subordinated
debt securities may be deferred at the Borrower's discretion for one or more
consecutive periods of up to five years, which would result in a corresponding
deferral of payments to holders of the preferred securities, plus accrual of
interest thereon, and (f) the subordinated debt securities and corresponding
preferred securities may not be redeemed for a period of five years from the
date of issuance other than as a result of a tax or other special event.
"PRESCRIBED FORMS" has the meaning assigned to such term in Section
4.04(a).
"PRICING LEVEL I" means at any time the Borrower's Senior Debt Rating
is (a) A- or higher by S&P or (b) A3 or higher by Moody's;
"PRICING LEVEL II" means at any time the Borrower's Senior Debt Rating
is (a) BBB+ or higher by S&P or (b) Baa1 or higher by Moody's, and Pricing Level
I is not applicable;
"PRICING LEVEL III" means at any time the Borrower's Senior Debt Rating
is (a) BBB or higher by S&P or (b) Baa2 or higher by Moody's, and Pricing Levels
I and II are not applicable;
"PRICING LEVEL IV" means at any time the Borrower's Senior Debt Rating
is (a) BBB- or higher by S&P or (b) Baa3 or higher by Moody's, and Pricing
Levels I, II and III are not applicable; and
"PRICING LEVEL V" means at any time the Borrower's Senior Debt Rating
is (1) less than or equal to BB+ by S&P or (2) less than or equal to Ba1 by
Moody's, and Pricing Levels I, II, III, and IV are not applicable.
"PROPERTY" means all types of real, personal, tangible, intangible or
mixed property.
"PROPOSED LENDER" has the meaning assigned to such term in Section
2.03(c).
"PRO RATA SHARE" means, with respect to any Lender at any time of
determination, in relation to Revolving Credit Loans, the proportion of such
Lender's Commitment to the Total Commitment then in effect or, after the
Termination Date, the proportion of such Lender's Revolving Credit Loans to the
aggregate amount of Revolving Credit Loans then outstanding.
"QUALIFIED PLAN" means a pension plan (as defined in Section 3(2) of
ERISA) intended to be tax-qualified under Section 401(a) of the Code and which
any member of the Controlled Group sponsors, maintains, or to which it makes or
is obligated to make contributions, or in the case of a multiple employer plan
(as described in Section 4064(a) of ERISA) has made contributions at any time
16
during the immediately preceding period covering at least five (5) plan years,
but excluding any Multiemployer Plan.
"REQUIRED LENDERS" means, at any date of determination, Lenders having
at least 51% of the Total Commitment then in effect or, if the Total Commitment
has been cancelled or terminated, holding at least 51% of the aggregate unpaid
principal amount of the Loans then outstanding.
"REQUIREMENT OF LAW" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its Property or to which the Person or any of its Property is subject.
"RESPONSIBLE OFFICER" means the chief executive officer, president,
chief financial officer, chief accounting officer, treasurer or any vice
president, senior vice president or executive vice president of the Borrower.
"REVOLVING CREDIT LOANS" has the meaning assigned to such term in
Section 2.01.
"REVOLVING CREDIT NOTES" means the promissory notes of the Borrower
substantially in the form of Exhibit C.
"SEC" means the Securities and Exchange Commission (or any successor
Governmental Authority).
"SENIOR DEBT RATING" means the Borrower's senior unsecured debt ratings
from either S&P and Moody's.
"S&P" means Standard & Poor's Ratings Group and any successor thereto
that is a nationally recognized rating agency.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary of the Borrower having
10% or more of the total assets of the Borrower and its Subsidiaries on a
consolidated basis as of the end of any fiscal quarter or generating 10% or more
of the income of the Borrower and its Subsidiaries on a consolidated basis
during the most recently completed four fiscal quarters.
"SUBSIDIARY" means any corporation, association, partnership, joint
venture or other business entity of which the Borrower and/or any subsidiary of
the Borrower either (a) in respect of a corporation, owns more than 50% of the
outstanding stock having ordinary voting power to elect a majority of the board
of directors or similar managing body, irrespective of whether or not at the
time the stock of any class or classes shall or might have voting power by
reason of the happening of any contingency, or (b) in respect of an association,
partnership, joint venture or other business entity, is the sole general partner
or is entitled to share in more than 50% of the profits, however determined.
17
"SUBSTITUTE LENDER" has the meaning ascribed to such term in Section
4.08.
"TAXES" has the meaning assigned to such term in Section 4.04(a).
"TERMINATION DATE" means, initially, May 10, 2005.
"364-DAY AGREEMENT" shall mean that certain 364-Day Revolving Credit
Agreement, dated the date hereof, among the Borrower, the Administrative Agent,
and the lenders party thereto.
"TOTAL CAPITALIZATION" means Funded Debt PLUS Net Worth.
"TOTAL COMMITMENT" means, on any day, the aggregate Commitment on such
day of all the Lenders.
"UNFUNDED PENSION LIABILITIES" means the excess of a Plan's accrued
benefits, as defined in Section 3(23) of ERISA, over the current value of that
Plan's assets, as defined in Section 3(26) of ERISA.
"UNSECURED DEBT" means all Debt which has not been secured by a pledge
of any real or personal property.
"UNUSED COMMITMENT" means, with respect to a Lender on any day, such
Lender's Commitment in effect on such day, less the principal amount of such
Lender's Revolving Credit Loans outstanding on such day.
"UTILIZATION FEE" has the meaning assigned to such term in Section
3.07(b).
"WHOLLY OWNED SUBSIDIARY" means, at any time and with respect to any
Person, a Subsidiary, all the shares of stock of all classes of which (other
than directors' qualifying shares) or other ownership interests at the time are
owned directly or indirectly by such Person and/or one or more other Wholly
Owned Subsidiaries of such Person.
(d) RATINGS DETERMINATIONS. Whenever this Agreement requires the
determination of the Borrower's Senior Debt Rating (i) if there is a split
rating as between Moody's and S&P (1) by one rating category, the higher of the
two ratings will apply and (2) by more than one category, the rating that is one
rating level below the higher rating will apply, (ii) if any rating established
by Moody's or S&P shall be changed (other than as a result of a change in the
rating system of either Moody's or S&P), such change shall be given effect as of
the date on which such change is first announced by the rating agency making
such change and (iii) if both Moody's and S&P have not rated the Company's
senior Unsecured Debt, Pricing Level V will apply for the purposes of
determining the Applicable Margin, the Utilization Fee and the Commitment Fee.
18
ARTICLE II
THE CREDIT FACILITY
-------------------
Section 2.01 Revolving Credit Loans.
-----------------------
Until the Termination Date, subject to the terms and conditions of this
Agreement, each of the Lenders, severally and not jointly with the other
Lenders, agrees to make revolving credit loans (collectively, "REVOLVING CREDIT
LOANS") in dollars to the Borrower in an aggregate principal amount at any one
time outstanding not to exceed such Lender's Commitment. Revolving Credit Loans
shall be made on any Borrowing Date only (i) in the minimum aggregate principal
amount of $5,000,000 or in integral multiples of $1,000,000 in excess thereof,
in the case of Eurodollar Revolving Loans, and in the minimum aggregate amount
of $1,000,000 or in integral multiples of $100,000, in the case of ABR Revolving
Loans and (ii) in a maximum aggregate principal amount not exceeding the
Available Commitment (after giving effect to any repayments or prepayments and
any other borrowings of Loans on such Borrowing Date).
Section 2.02 Borrowing Procedure.
--------------------
In order to borrow Revolving Credit Loans, the Borrower shall give a
Borrowing Request to the Administrative Agent not later than 12:00 noon, New
York time, (i) on the Borrowing Date for ABR Revolving Loans and (ii) on the
third Business Day before the Borrowing Date for Eurodollar Revolving Loans.
Upon receipt, the Administrative Agent forthwith shall give notice to each
Lender of the substance of the Borrowing Request. Not later than 2:00 P.M., New
York time, on the Borrowing Date, each Lender shall make available to the
Administrative Agent such Lender's Pro Rata Share of the requested Loans in
funds immediately available at the Administrative Agent's office specified
pursuant to Section 11.08(a). Subject to satisfaction, or waiver by all of the
Lenders, of each of the applicable conditions precedent contained in Article VI,
on the Borrowing Date the Administrative Agent shall make available, in like
funds, to the Borrower the amounts received by the Administrative Agent from the
Lenders.
Section 2.03 Termination and Reduction and Increase of Commitments.
------------------------------------------------------
(a) Unless previously terminated, the Commitments shall terminate on
the Maturity Date.
(b) The Borrower may terminate the Total Commitment, or reduce the
amount thereof, by (i) giving written notice to the Administrative Agent, not
later than 5:00 P.M., New York time, on the fifth Business Day prior to the date
of termination or reduction and (ii) paying the amount of the Commitment Fees
accrued through such date of termination or reduction. Reductions of the Total
Commitment shall be in the amount of $5,000,000 or in integral multiples of
$1,000,000 in excess thereof (or, if the amount of the Available Commitment is
less than $5,000,000, then all of such lesser amount), but shall not exceed the
19
Available Commitment in effect immediately before giving effect to such
reduction. Any termination, and all reductions, of the Total Commitment shall be
permanent.
(c) The Borrower may, at its sole expense and effort after consulting
with the Administrative Agent, request: (i) one or more Lenders reasonably
acceptable to the Administrative Agent to increase (in the sole and absolute
discretion of each such Lender) the amount of their respective Commitments
and/or (ii) one or more other lending institutions acceptable to the
Administrative Agent (each, a "NEW LENDER") to become "LENDERS" and extend
Commitments hereunder (each such Lender and each New Lender being herein
referred to as a "PROPOSED LENDER"). To request an increase pursuant to this
Section 2.03(c), the Borrower shall submit to the Administrative Agent an
Increase Request, in the form annexed hereto as Exhibit G, signed by the
Borrower, which shall be irrevocable and shall specify, as the case may be: (A)
each such Lender and the amount of the proposed increase in its Commitment, or
(B) the proposed Commitment for such New Lender. Promptly following receipt of
an Increase Request, the Administrative Agent shall advise each Lender of the
details thereof. If one or more of such Proposed Lenders shall have
unconditionally agreed to such Increase Request in a writing delivered to the
Borrower and the Administrative Agent (each such existing Lender and New Lender
being hereinafter referred to as an "INCREMENTAL LENDER"), then: (1) each such
Incremental Lender which shall then be an existing Lender shall have its
Commitment increased by the amount set forth in such Increase Request, and (2)
each such New Lender shall be and become a "Lender" hereunder having a
Commitment equal to the amount set forth therefor in such Increase Request,
PROVIDED, however, that in each such case: (I) immediately before and after
giving effect thereto, no Default or Event of Default shall or would exist, (II)
each such Incremental Lender shall have executed and delivered to the
Administrative Agent a supplement to this Agreement providing for its increased
Commitment or its Commitment, as applicable, in form approved by the
Administrative Agent, (III) immediately after giving effect thereto, the Total
Commitments under this Agreement shall not exceed $175,000,000, (IV) immediately
after giving effect thereto, the aggregate amount of the Total Commitment under
this Agreement and under the 364-Day Agreement shall not exceed $300,000,000,
(V) each such Increase Request shall be in an aggregate minimum amount of
$10,000,000 or an integral multiple of $5,000,000 in excess thereof, and (VI)
the Commitment extended by any such Incremental Lender which is a New Lender
shall be in a minimum amount of $5,000,000 or an integral multiple of $1,000,000
in excess thereof.
(d) Simultaneously with each increase in the aggregate amount of the
Commitments under this Section 2.03(c), each Incremental Lender shall, to the
extent necessary, purchase from each other Lender, and each other Lender shall
sell to each Incremental Lender, in each case at par and without representation,
warranty, or recourse (in accordance with and subject to the restrictions
contained in Section 10.03), such principal amount of the Revolving Loans of
such other Lender, together with all accrued and unpaid interest thereon, as
will result, after giving effect to such transaction, in each Lender's
20
Applicable Percentage of Revolving Credit Loans outstanding being equal to such
Lender's Applicable Percentage of all Revolving Credit Loans, PROVIDED that each
such assignor Lender shall have received (to the extent of the interests, rights
and obligations assigned) payment of the outstanding principal amount of its
Revolving Credit Loans, accrued interest thereon, accrued fees, commissions and
all other amounts payable to it under the Loan Documents from the applicable
assignee Lenders (to the extent of such outstanding principal and accrued
interest, fees and commissions) or the Borrower (in the case of all other
amounts).
Section 2.04 Repayment.
----------
Revolving Credit Loans shall be repaid, together with all accrued and
unpaid interest thereon, on the Termination Date.
Section 2.05 Optional Prepayment.
--------------------
The Borrower may prepay Revolving Credit Loans bearing interest on the
same basis and having the same Interest Periods, if any, by giving notice to the
Administrative Agent not later than 1:00 P.M., New York time, on the third
Business Day preceding the proposed date of prepayment, in the case of
Eurodollar Revolving Loans, or not later than 1:00 P.M., New York time on the
Business Day of the proposed prepayment, in the case of ABR Revolving Loans.
Each such prepayment of Eurodollar Revolving Loans shall be in an aggregate
principal amount of $5,000,000 or in integral multiples of $1,000,000 in excess
thereof (or, if the aggregate amount of outstanding Eurodollar Revolving Credit
Loans is less than $5,000,000, then all of such lesser amount), and each
prepayment of ABR Revolving Loans shall be in an aggregate amount of $1,000,000
or in integral multiples of $100,000 in excess thereof (or, if the aggregate
amount of outstanding ABR Revolving Loans is less than $1,000,000, then all of
such lesser amount), and, in the case of Eurodollar Revolving Loans, together
with the amounts required by Section 4.03, accrued interest on the principal
being prepaid to the date of prepayment. Subject to the terms and conditions of
this Agreement, prepaid Revolving Credit Loans may be reborrowed.
ARTICLE III
INTEREST AND FEES
-----------------
Section 3.01 Interest Rate Determination; Conversion.
(a) Except to the extent that the Borrower shall request, in a
Revolving Credit Request, in a Conversion Request or in a written election
pursuant to Section 3.03(b), that Revolving Credit Loans (or portions thereof)
bear interest as Eurodollar Revolving Loans, Revolving Credit Loans shall bear
interest as ABR Revolving Loans.
21
(b) The Borrower may request, by giving a Conversion Request to the
Administrative Agent, not later than 1:00 P.M., New York time on the third
Business Day prior to the requested Conversion Date, that all or portions of the
outstanding Revolving Credit Loans, in the aggregate principal amount of
$5,000,000 or in integral multiples of $1,000,000 in excess thereof, in the case
of Loans being converted to or continued as Eurodollar Revolving Loans, and in
the aggregate principal amount of $1,000,000 or in integral multiples of
$100,000 in excess thereof (or, if the aggregate principal amount of outstanding
Revolving Loans is less than $1,000,000, then all such lesser amount), in the
case of ABR Revolving Loans, bear interest from and after the Conversion Date as
either ABR Revolving Loans or Eurodollar Revolving Loans; provided, however,
that during the continuance of any Default or Event of Default that shall have
occurred, no Loan (or portion thereof) may be converted into Eurodollar
Revolving Loans. Upon receipt, the Administrative Agent forthwith shall give
notice to each Lender of the substance of each Conversion Request. Upon payment
by the Borrower of the amounts, if any, required by Section 4.03, on the
Conversion Date the Loans or portions thereof as to which the Conversion Request
was made shall commence to accrue interest in the manner selected by the
Borrower therein.
Section 3.02 Interest on ABR Revolving Loans.
--------------------------------
Each ABR Revolving Loan shall bear interest from the date made until
the date repaid, or (if converted into a Eurodollar Revolving Loan) to (but
excluding) the first day of any relevant Interest Period, as the case may be,
payable in arrears on the last day of each calendar quarter of each year,
commencing with the first such date after the Effective Date, and on the date
such Loan is repaid, at a rate per annum equal to the sum of (i) the Applicable
Margin and (ii) the Alternate Base Rate in effect from time to time, which rate
shall change as and when said Alternate Base Rate shall change.
Section 3.03 Interest on Eurodollar Revolving Loans.
---------------------------------------
(a) Each Eurodollar Revolving Loan shall bear interest from the date
made until the date repaid or converted to an ABR Revolving Loan, payable in
arrears, with respect to Interest Periods of three months or less, on the last
day of such Interest Period, and with respect to Interest Periods longer than
three months, on the day which is three months after the commencement of such
Interest Period and on the last day of such Interest Period, at a rate per annum
equal to the sum of (i) the Applicable Margin and (ii) LIBOR.
(b) Each Eurodollar Revolving Loan shall become an ABR Revolving Loan
at the end of the Interest Period therefor, unless (i) there shall not have
occurred and be continuing a Default or Event of Default and (ii) not later than
the third Business Day prior to the last day of such Interest Period, (x) the
Borrower shall have delivered to the Administrative Agent an irrevocable written
election of the subsequent Interest Period, in which case such Eurodollar
Revolving Loan shall remain outstanding as a Eurodollar Revolving Loan, or (y)
the Borrower shall have delivered to the Administrative Agent a Conversion
22
Request with respect thereto, in which case such Eurodollar Revolving Loan shall
be converted in accordance with Section 3.01(b).
(c) If, during any period, a Lender shall be required to maintain
reserves against "Eurocurrency Liabilities" in accordance with Federal Reserve
Board Regulation D (or any successor regulation), the Borrower shall pay
additional interest during such period on each outstanding Eurodollar Revolving
Loan of such Lender (contemporaneously with each interest payment due thereon
commencing with the first such payment due at least five Business Days after
receipt of the notice referred to in the next sentence) at a rate per annum up
to but not exceeding the marginal rate determined by the following formula:
LIBOR - LIBOR
------------------------------------
l -Eurodollar Reserve Percentage
Each Lender shall promptly notify the Borrower, with a copy to the
Administrative Agent, upon becoming aware that the Borrower may be required to
make a payment of additional interest to such Lender. When requesting payment
pursuant to this Section 3.03(c), a Lender shall provide to the Borrower, with a
copy to the Administrative Agent, a certificate, signed by an officer of such
Lender setting forth, in reasonable detail, the basis of such claim, the amount
required to be paid by the Borrower to such Lender and the computations made by
such Lender to determine such amount. Absent manifest error, such certificate
shall be binding as to the amounts of additional interest owing in respect of
such Lender's Eurodollar Revolving Loans. Any Lender that gives notice under
this Section 3.03(c) shall promptly withdraw such notice (by written notice of
withdrawal given to the Administrative Agent and the Borrower) whenever such
Lender is no longer required to maintain such reserves or the circumstances
giving rise to such notice shall otherwise cease.
Section 3.04 Interest on Overdue Amounts.
----------------------------
All overdue amounts (including principal, interest and fees) hereunder,
and, during the continuance of any Event of Default that shall have occurred,
each Loan, shall bear interest, payable on demand, at a rate per annum equal to
the sum of (i) 2% and (ii) in the case of Eurodollar Revolving Loans, the rate
then applicable until the end of the current Interest Period therefor, and
thereafter the rate of interest applicable to ABR Revolving Loans, changing as
and when such rate shall change, and in the case of ABR Revolving Loans, the
rate of interest applicable thereto, changing as and when such rate shall
change.
Section 3.05 Day Counts.
-----------
Interest on ABR Revolving Loans shall be calculated on the basis of (a)
a 365- or, if applicable, a 366-day year for the actual number of days elapsed
for so long as interest is determined pursuant to clause (i) of the definition
of "Alternate Base Rate" and (b) a 360-day year for the actual number of days
23
elapsed for so long as interest is determined based on clause (ii) of the
definition of "Alternate Base Rate". Interest on all other Loans, and all fees
shall be calculated on the basis of a 360-day year for the actual number of days
elapsed.
Section 3.06 Maximum Interest Rate.
----------------------
(a) Nothing in this Agreement shall require the Borrower to pay
interest at a rate exceeding the maximum rate permitted by applicable law.
Neither this Section nor Section 11.01 is intended to limit the rate of interest
payable for the account of any Lender to the maximum rate permitted by the laws
of the State of New York (or any other applicable law) if a higher rate is
permitted with respect to such Lender by supervening provisions of U.S. Federal
law.
(b) If the amount of interest payable for the account of any Lender on
any interest payment date in respect of the immediately preceding interest
computation period, computed pursuant to this Article III, would exceed the
maximum amount permitted by applicable law to be charged by such Lender, the
amount of interest payable for its account on such interest payment date shall
automatically be reduced to such maximum permissible amount.
(c) If the amount of interest payable for the account of any Lender in
respect of any interest computation period is reduced pursuant to Section
3.06(b) and the amount of interest payable for its account in respect of any
subsequent interest computation period would be less than the maximum amount
permitted by law to be charged by such Lender, then the amount of interest
payable for its account in respect of such subsequent interest computation
period shall be automatically increased to such maximum permissible amount;
provided that at no time shall the aggregate amount by which interest paid for
the account of any Lender has been increased pursuant to this Section 3.06(c)
exceed the aggregate amount by which interest paid for its account has
theretofore been reduced pursuant to Section 3.06(b).
Section 3.07 Commitment Fees; Utilization Fee.
---------------------------------
(a) The Borrower agrees to pay to the Administrative Agent, for the
account of each Lender, on the last day of each calendar quarter of each year,
commencing with the first such day after the Effective Date (or such later date
on which such Lender becomes a Lender), and on the Termination Date (or other
date on which the Commitment shall terminate) with respect to such Lender, a fee
(the "Commitment Fee") computed by applying (i) on each day on which the
applicable Pricing Level set forth below is in effect, the percentage per annum
set forth below adjacent to such Pricing Level on such day during the
then-ending quarter (or shorter period ending with the Termination Date or any
other date on which the Commitment of such Lender shall terminate) to (ii) the
amount of such Lender's unused Commitment on such day:
24
-------------------------------------------------
Pricing Commitment
Level Fee
----- ---
-------------------------------------------------
I 0.150%
-------------------------------------------------
II 0.175%
-------------------------------------------------
III 0.200%
-------------------------------------------------
IV 0.225%
-------------------------------------------------
V 0.350%
-------------------------------------------------
(b) The Borrower agrees to pay to the Administrative Agent, for the
account of each Lender, on the last day of each calendar quarter of each year,
commencing with the first such day after the Effective Date (or such later date
on which such Lender becomes a Lender), and on the Termination Date (or other
date on which the Commitment shall terminate) with respect to such Lender, a fee
(the "Utilization Fee"), computed by applying on any date the outstanding
principal amount of the Revolving Credit Loans exceeds 50% of the Commitments
(i) on each day on which the applicable Pricing Level set forth below is in
effect, the percentage per annum set forth below adjacent to such Pricing Level
on such day during the then-ending quarter (or shorter period ending with the
Termination Date or any other date on which the Commitment of such Lender shall
terminate) to (ii) the outstanding principal amount of such Lender's Revolving
Credit Loans on such day:
-------------------------------------------------
Pricing Level Utilization Fee
-------------------------------------------------
I 0.100%
-------------------------------------------------
II 0.125%
-------------------------------------------------
III 0.125%
-------------------------------------------------
IV 0.150%
-------------------------------------------------
V 0.250%
-------------------------------------------------
25
ARTICLE IV
DISBURSEMENT AND PAYMENT
------------------------
Section 4.01 Disbursement.
-------------
(a) Each Loan shall be made by the relevant Lender from such Lender's
branch or affiliate identified as its Applicable Lending Office.
(b) The failure of any Lender to make any Loan to be made by it on the
Borrowing Date therefor shall not relieve any other Lender of its obligation to
make its Loan or Loans on such date, but neither any Lender nor the
Administrative Agent shall be responsible for the failure of any other Lender to
make a Loan to be made by such other Lender.
(c) The Administrative Agent may, but shall not be required to, advance
on behalf of any Lender the amount of such Lender's Loan to be made on a
Borrowing Date, unless such Lender shall have notified the Administrative Agent
prior to such Borrowing Date that it does not intend to make such Loan on such
date. If the Administrative Agent makes any such advance, the Administrative
Agent shall be entitled to recover the amount so advanced on demand from the
Lender on whose behalf such advance was made and, if such Lender does not pay
the Administrative Agent the amount of such advance on demand, the Borrower
agrees promptly to repay such amount to the Administrative Agent. Until such
amount is repaid to the Administrative Agent by such Lender or the Borrower,
such advance shall be deemed for all purposes to be a Loan made on such
Borrowing Date by the Administrative Agent. The Administrative Agent shall be
entitled to recover from the Lender or the Borrower, as the case may be,
interest on the amount advanced by it for each day from the Borrowing Date
therefor until repaid to the Administrative Agent, at a rate per annum equal to
the Federal Funds Rate until the third Business Day after the date of the
advance and, thereafter, at the rate per annum equal to the relevant rate on
Loans made on the relevant Borrowing Date.
Section 4.02 Method and Time of Payments; Sharing among Lenders.
---------------------------------------------------
(a) All funds received by the Administrative Agent for the account of
the Lenders in respect of payments made by the Borrower under, or from any other
Person on account of, any Credit Document shall be distributed forthwith by the
Administrative Agent among the Lenders, in like funds as received, ratably in
proportion to their respective interests therein. Each payment of Commitment
Fees and each reduction of the Total Commitment shall be apportioned among the
Lenders in proportion to each Lender's Pro Rata Share.
(b) All payments by the Borrower hereunder shall be made without setoff
or counterclaim to the Administrative Agent, for its account or for the account
of the Lender or Lenders entitled thereto, as the case may be, in dollars and in
26
immediately available funds at the office of the Administrative Agent prior to
3:00 P.M., New York time, on the date when due.
(c) Whenever any payment from the Borrower shall be due on a day that
is not a Business Day, the date of payment thereof shall be extended to the next
succeeding Business Day. If the date for any payment of principal is extended by
operation of law or otherwise, interest thereon shall be payable for such
extended time.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment from the Borrower is due that
the Borrower will not make such payment in full, the Administrative Agent may
assume that the Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance upon such
assumption, but shall not be obligated to, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent that the Borrower shall not have so made such payment, each
Lender shall repay to the Administrative Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Administrative Agent, at the Federal Funds Rate.
(e) If any Lender shall receive from the Borrower or any other Person
any amount owing under any Credit Document (whether received pursuant to the
exercise of any right of set-off, banker's lien, realization upon any security
held for or appropriated to such obligation or otherwise) other than in
proportion to such Lender's ratable share thereof, then such Lender shall
purchase from each other Lender a participating interest in so much of the other
Lenders' Loans as shall be necessary in order that each Lender shall share such
payment with each of the other Lenders in proportion to each Lender's ratable
share; provided that nothing herein contained shall obligate any Lender to apply
any set-off, banker's lien or collateral security first to the obligations of
the Borrower hereunder if the Borrower is obligated to such Lender pursuant to
other loans or notes. If any purchasing Lender shall be required to return any
excess payment received by it, such participation shall be rescinded and the
purchase price restored to the extent of such return, but without interest.
Section 4.03 Compensation for Losses.
------------------------
(a) If (i) the Borrower makes a prepayment, or a Conversion Date
occurs, other than on the last day of the relevant Interest Period, (ii) the
Borrower fails to borrow, convert, continue or prepay any Eurodollar Revolving
Loan on the date specified in any notice delivered pursuant hereto, (iii) the
Borrower revokes any Borrowing Request for Eurodollar Revolving Loans, (iv)
Eurodollar Revolving Loans (or portions thereof) are converted into ABR Loans
pursuant to Section 4.05 or (v) Loans (or portions thereof) shall become or be
declared to be due prior to the scheduled maturity thereof, then the Borrower
shall pay to each Lender an amount that will compensate such Lender for any loss
(other than lost profit) or premium or penalty incurred by such Lender as a
27
result of such prepayment, conversion, declaration or revocation in respect of
funds obtained for the purpose of making or maintaining such Lender's Loans, or
any portion thereof. Such compensation shall include an amount equal to the
excess, if any, of (i) the amount of interest which would have accrued on the
amount so paid or prepaid, or not borrowed or converted, for the period from the
date of such payment or prepayment or conversion or failure to borrow to the
last day of such Interest Period (or, in the case of a failure to borrow, the
Interest Period that would have commenced on the date of such failure to borrow)
in each case at the applicable rate of interest for such Loan provided for
herein (excluding, however, any Applicable Margin included therein) over (ii)
the amount of interest (as reasonably determined by such Lender) which would
have accrued to such Lender on such amount by placing such amount on deposit for
a comparable period with leading banks in the London interbank deposit market.
(b) In connection with a demand for payment pursuant to this Section
4.03, a Lender shall provide to the Borrower, with a copy to the Administrative
Agent, a certificate, signed by an officer of such Lender, setting forth in
reasonable detail the amount required to be paid by the Borrower to such Lender
and the computations made by such Lender to determine such amount. In the
absence of manifest error, such certificate shall be conclusive as to the amount
so required to be paid.
Section 4.04 Withholding and Additional Costs.
---------------------------------
(a) WITHHOLDING. (i) To the extent permitted by law, all payments under
this Agreement and under the Revolving Credit Notes (including payments of
principal and interest) shall be payable to each Lender free and clear of any
and all present and future taxes, levies, imposts, duties, deductions,
withholdings, fees, liabilities and similar charges other than Excluded Taxes
(collectively, "TAXES"). If any Taxes are required to be withheld or deducted
from any amount payable under this Agreement, then the amount payable under this
Agreement shall be increased to the amount which, after deduction from such
increased amount of all Taxes required to be withheld or deducted therefrom,
will yield to such Lender the amount stated to be payable under this Agreement.
The Borrower shall also hold each Lender harmless and indemnify it for any stamp
or other taxes with respect to the preparation, execution, delivery, recording,
performance or enforcement of the Credit Documents (all of which shall be
included within "Taxes"). If any of the Taxes specified in this Section 4.04(a)
are paid by any Lender, the Borrower shall, upon demand of such Lender, promptly
reimburse such Lender for such payments, together with any interest, penalties
and expenses incurred in connection therewith. The Borrower shall deliver to the
Administrative Agent certificates or other valid vouchers for all Taxes or other
charges deducted from or paid with respect to payments made by the Borrower
hereunder. Notwithstanding the foregoing, the Borrower shall be entitled, to the
extent required to do so by law, to deduct or withhold (and shall not be
required to make payments as otherwise required by this Section 4.04 on account
of such deductions or withholdings) income or other similar taxes imposed by the
United States of America from interest, fees or other amounts payable hereunder
28
for the account of any Lender other than a Lender (A) that is a U.S. Person for
U.S. federal income tax purposes or (B) that has the Prescribed Forms on file
with the Borrower for the applicable year to the extent deduction or withholding
of such taxes is not required as a result of such filing of such Prescribed
Forms; provided that, if the Borrower shall so deduct or withhold any such
taxes, the Borrower shall provide a statement to the Administrative Agent and
such Lender, setting forth the amount of such taxes so deducted or withheld, the
applicable rate and any other information or documentation which such Lender may
reasonably request for assisting such Lender to obtain any allowable credits or
deductions for the taxes so deducted or withheld in the jurisdiction or
jurisdictions in which such Lender is subject to tax.
(ii) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall deliver to the Borrower and
the Administrative Agent two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 (or any successor form or forms), certifying
in either case that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes ("Prescribed Forms"). Each Lender that so delivers such Prescribed Forms
further undertakes to deliver to the Borrower and the Administrative Agent two
additional copies of such Prescribed Forms on or before the date that such
Prescribed Forms expire or become obsolete or after the occurrence of any event
requiring a change in the most recent Prescribed Forms so delivered by it, and
such amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Borrower or the Administrative Agent, in each case certifying
that such Lender is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes, unless an
event (including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such Prescribed Forms inapplicable or which would
prevent such Lender from duly completing and delivering Prescribed Forms with
respect to it and such Lender advises the Borrower and the Administrative Agent
that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax. If any Lender that is not
incorporated under the laws of the United States of America or a state thereof
fails to comply with the provisions of this Section, the Borrower and/or the
Administrative Agent, may, as required by law, deduct and withhold federal
income tax payments from payments to such Lender under this Agreement.
(b) ADDITIONAL COSTS. Subject to Sections 4.04(c), (d) and (e):
(i) Without duplication of any amounts payable described in Section
3.03(c) or 4.03 (a), if after the date hereof, any change in any law or
regulation or in the interpretation thereof by any court or administrative or
Governmental Authority charged with the administration thereof or the enactment
of any law or regulation shall either (1) impose, modify or deem applicable any
reserve, special deposit or similar requirement against any Lender's Commitment
or Loans or (2) impose on any Lender (or such Lender's Applicable Lending
29
Office) any other condition regarding this Agreement, its Commitment or the
Loans and the result of any event referred to in clause (1) or (2) shall be to
increase the cost to such Lender (or such Lender's Applicable Lending Office) of
maintaining its Commitment or any Eurodollar Revolving Loans made by such Lender
(which increase in cost shall be calculated in accordance with such Lender's
reasonable averaging and attribution methods) by an amount which such Lender
deems to be material, then, upon demand by such Lender, the Borrower shall pay
to such Lender, on demand, an amount equal to such increase in cost; and
(ii) Without duplication of any amounts payable described in
Section 3.03(c) or 4.03(a), if any Lender shall have determined that the
adoption of any applicable law, rule, regulation or guideline regarding capital
adequacy, 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, (including any
such adoption or change made prior to the date hereof but not effective until
after the date hereof) or compliance by such Lender (or such Lender's Applicable
Lending Office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital for such Lender (or such Lender's Applicable Lending Office) or any
corporation controlling such Lender as a consequence of its obligations under
this Agreement to a level below that which such Lender (or such Lender's
Applicable Lending Office) or such corporation could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's (or such
Lender's Applicable Lending Office) or such corporation's policies with respect
to capital adequacy), then from time to time, upon demand by such Lender, then
the Borrower shall pay to such Lender, on demand, such additional amount or
amounts as will compensate such Lender (or such Lender's Applicable Lending
Office) or such corporation for such reduction.
(c) LENDING OFFICE DESIGNATIONS. Before making any demand for payment
pursuant to this Section 4.04, each Lender shall, if possible, designate a
different Applicable Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.
(d) CERTIFICATE, ETC. In connection with any demand for payment
pursuant to this Section 4.04, a Lender shall provide to the Borrower, with a
copy to the Administrative Agent, a certificate, signed by an officer of such
Lender, setting forth in reasonable detail the basis for such demand, the amount
required to be paid by the Borrower to such Lender the computations made by such
Lender to determine such amount.
30
(e) LIMITATIONS. The Borrower shall not be obligated to compensate a
Lender for any amount under Section 4.04(b) (i) and (ii) arising or occurring
more than 90 days prior to the date on which an office of such Lender primarily
responsible for the administration of this Agreement obtains actual knowledge
that such Lender is entitled to such compensation.
Section 4.05 Funding Impracticable.
----------------------
If at any time any Lender shall have determined in good faith (which
determination shall be conclusive) that the making or maintenance of all or any
part of such Lender's Eurodollar Revolving Loans has been made impracticable or
unlawful because of compliance by such Lender in good faith with any law or
guideline or interpretation or administration thereof by any Governmental
Authority charged with the interpretation or administration thereof or with any
request or directive of such body (whether or not having the effect of law) or
because U.S. dollar deposits in the amount and requested maturity of such
Eurodollar Revolving Loans are not available to such Lender in the London
Eurodollar interbank market, then the Administrative Agent, upon notification to
it of such determination by such Lender, shall forthwith advise the other
Lenders and the Borrower thereof. Upon such date as shall be specified in such
notice and until such time as the Administrative Agent, upon notification to it
by such Lender, shall notify the Borrower and the other Lenders that the
circumstances specified by it in such notice no longer apply, (i)
notwithstanding any other provision of this Agreement, such Eurodollar Revolving
Loans shall, automatically and without requirement of further notice, or any
payment pursuant to Section 4.03 or 4.04, by the Borrower, be converted to ABR
Revolving Loans, and (ii) the obligation of such Lender to make or continue
Eurodollar Revolving Loans shall be suspended, and, if the Borrower shall
request in a Borrowing Request or Conversion Request that the Lenders make a
Eurodollar Revolving Loan, the Loan requested to be made by such Lender shall
instead be made as an ABR Revolving Loan.
Section 4.06 Expenses; Indemnity.
--------------------
(a) The Borrower agrees to pay all reasonable out-of-pocket expenses
incurred by the Administrative Agent or any Lender (including reasonable fees
and disbursements of counsel) in connection with the enforcement of, and the
protection of their respective rights under, any provision of any Credit
Document or any amendment or supplement to this Agreement.
(b) The Borrower agrees to indemnify the Administrative Agent, BNY
Capital Markets, Inc. and each of the Lenders and their respective directors,
officers, employees and agents (each, an "Indemnitee") against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including counsel fees and expenses, incurred by or asserted
against any Indemnitee arising out of, in any way connected with, or as a result
of (i) the execution or delivery of any Credit Document or any agreement or
31
instrument contemplated by any Credit Document, the performance by the parties
thereto of their respective obligations under any Credit Document or the
consummation of the transactions contemplated by any Credit Document, (ii) the
use of the proceeds of the Loans or (iii) any claim, litigation, investigation
or proceeding relating to any of the foregoing, whether or not any Indemnitee is
a party thereto; provided that such indemnity shall not, as to any Indemnitee,
be available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee.
(c) All amounts due under this Section 4.06 shall be payable in
immediately available funds upon written demand therefor.
Section 4.07 Survival.
---------
The provisions of Sections 4.03, 4.04, 4.06 and 9.06, shall remain
operative and in full force and effect regardless of the expiration of the term
of this Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the reduction or termination of any Commitments,
the invalidity or unenforceability of any term or provision of any Credit
Document, or any investigation made by or on behalf of the Lenders.
Section 4.08 Substitution of a Lender.
-------------------------
Notwithstanding anything to the contrary contained herein, if any
Lender shall request compensation pursuant to Section 4.04(b)(i) and (ii) in an
aggregate amount in excess of $25,000, then, in each case, the Borrower may
require that such Lender transfer all of its right, title and interest under
this Agreement and such Lender's Revolving Credit Notes to one or more of the
other Lenders or any other lender identified by the Borrower and reasonably
acceptable to the Administrative Agent (a "Substitute Lender") which is willing
to assume all of the obligations of such Lender, for consideration equal to the
outstanding principal amount of such Lender's Loans, together with interest
thereon to the date of such transfer and all other amounts payable under the
Credit Documents to such Lender on or prior to the date of such transfer
(including, without limitation, any fees accrued hereunder and any amounts which
would be payable under Section 4.03 as if all of such Lender's Loans were being
prepaid in full on such date). Subject to the execution and delivery of new
notes, an Assignment and Acceptance, and such other documents as such Lender may
reasonably require, such Substitute Lender shall be a "Lender" for all purposes
hereunder. Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements of the Borrower contained in Sections 4.04
and 4.06 (without duplication of any payments made to such Lender by the
Borrower or the Substitute Lender) shall survive for the benefit of any Lender
replaced under this Section 4.08 with respect to the time prior to such
replacement.
32
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 5.01 Representations and Warranties.
-------------------------------
The Borrower represents and warrants to the Administrative Agent and
each Lender as follows:
(a) CORPORATE EXISTENCE.
(i) the Borrower and each of its Significant Subsidiaries
has been duly incorporated and is validly existing and in good standing under
the laws of its jurisdiction of incorporation;
(ii) the Borrower and each of its Significant Subsidiaries
has the corporate power and authority and all necessary governmental licenses,
authorizations, consents and approvals material to the ownership of its assets
and the carrying on of its business;
(iii) the Borrower has the power and authority and all
governmental licenses, authorizations, consents and approvals to execute,
deliver and perform its obligations under this Agreement and the Revolving
Credit Notes; and
(iv) the Borrower is duly qualified as a foreign
corporation licensed and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of Property or the conduct of its
business requires such qualification.
(b) CORPORATE AUTHORIZATION; NO CONTRAVENTION. The execution, delivery,
and performance by the Borrower of the Credit Documents have been duly
authorized by all necessary corporate action and do not and will not:
(i) contravene the terms of the Borrower's articles of
incorporation, bylaws or other organizational document;
(ii) conflict with or result in any breach or contravention
of, or the creation of any Lien under, any indenture, agreement, lease,
instrument, Contractual Obligation, injunction, order, decree or undertaking to
which the Borrower is a party or by which it is bound including, without
limitation, the CPUC Order; or
(iii) violate any Requirement of Law.
(c) GOVERNMENTAL AUTHORIZATION. No consent, approval, authorization or
order of any Governmental Authority is required for due execution, delivery and
33
performance by the Borrower of the Credit Documents, other than the CPUC Order,
which has been obtained and is in full force and effect.
(d) BINDING EFFECT. This Agreement is, and the Revolving Credit Notes
when delivered hereunder will be, legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their respective
terms subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(e) LITIGATION. There are no actions, suits, proceedings, claims or
disputes pending, or to the best knowledge of the Borrower, threatened at law,
in equity, in arbitration or before any Governmental Authority, against the
Borrower, or its Subsidiaries or any of their respective Properties which (i)
purport to affect or pertain to this Agreement, or any of the transactions
contemplated hereby; or (ii) would reasonably be expected to have a Material
Adverse Effect. No injunction, writ, temporary restraining order or any order of
any nature has been issued by any court or other Governmental Authority
purporting to enjoin or restrain the execution, delivery and performance of any
Credit Document or directing that the transactions provided for herein not be
consummated as herein provided.
(f) NO DEFAULT. No Default or Event of Default exists or would result
from the incurring of the Obligations by the Borrower under this Agreement.
Neither the Borrower, nor any of its Significant Subsidiaries, is in default
under or with respect to any Contractual Obligation which, individually or
together with all such defaults, would have a Material Adverse Effect.
(g) ERISA COMPLIANCE. (i) Each Qualified Plan is in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
federal or state law, including all requirements under the Code or ERISA for
filing reports (which are true and correct in all material respects as of the
date filed), and to the best knowledge of the Borrower, benefits have been paid
in accordance with the provisions of such Plan.
(ii) Each Qualified Plan has been determined by the IRS to
qualify under Section 401 of the Code, the IRS has not determined that any
amendment to any Qualified Plan does not qualify under Section 401 of the Code,
and the trusts created thereunder have been determined to be exempt from tax
under the provisions of Section 501 of the Code, and to the best knowledge of
the Borrower, nothing has occurred which would cause the loss of such
qualification or tax-exempt status.
(iii) There is no outstanding liability under Title IV of
ERISA with respect to any Plan maintained or sponsored by the Borrower or any
ERISA Affiliate (as to which the Borrower is or may be liable), nor with respect
to any Plan to which the Borrower or any ERISA Affiliate (wherein the Borrower
is or may be liable) contributes or is obligated to contribute.
34
(iv) None of the Qualified Plans subject to Title IV of
ERISA has any Unfunded Pension Liability as to which the Borrower is or may be
liable.
(v) No ERISA Event has occurred or is reasonably expected
to occur with respect to any Plan maintained or sponsored by the Borrower or to
which the Borrower is obligated to contribute.
(vi) There are no pending or, to the best knowledge of the
Borrower, threatened claims, actions or lawsuits, other than routine claims for
benefits in the usual and ordinary course, asserted or instituted against (i)
any Plan maintained or sponsored by the Borrower or its assets, (ii) any member
of the Controlled Group with respect to any Qualified Plan of the Company, or
(iii) any fiduciary with respect to any Plan for which the Borrower may be
directly or indirectly liable, through indemnification obligations or otherwise
which would be reasonably likely to have a Material Adverse Effect.
(vii) The Borrower has not incurred nor reasonably expects to
incur (i) any liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability) under
Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan or (ii) any
liability under Title IV of ERISA (other than premiums due and not delinquent
under Section 4007 of ERISA) with respect to a Plan.
(viii) The Borrower has not transferred any Unfunded Pension
Liability outside of the Controlled Group or otherwise engaged in a transaction
that could be subject to Section 4069 or 4212(c) of ERISA.
(ix) The Borrower has not engaged, directly or indirectly,
in a non-exempt prohibited transaction (as defined in Section 4975 of the Code
or Section 406 of ERISA) in connection with any Plan which would have a Material
Adverse Effect.
(h) USE OF PROCEEDS; MARGIN REGULATIONS. No Loans will be used,
directly or indirectly, (i) to purchase or carry Margin Stock or (ii) to repay
or otherwise refinance indebtedness of the Borrower or others incurred to
purchase or carry Margin Stock or (iii) to extend credit for the purpose of
purchasing or carrying any Margin Stock. No Loan will be used to acquire any
security in any transaction which is subject to Sections 13 or 14 of the
Securities Exchange Act of 1934.
(i) TITLE TO PROPERTIES. The Borrower and each of its Significant
Subsidiaries has sufficient and legal title in fee simple to or valid leasehold
interest in all its Property, except for such defects in title as could not,
individually or in the aggregate, have a Material Adverse Effect. Such Property
is free and clear of all Liens or rights of others, except Permitted Liens.
35
(j) TAXES. The Borrower and its Subsidiaries have filed all federal and
other material tax returns and reports required to be filed and have paid all
federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their Properties, income or assets
otherwise due and payable except (a) those which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP and no Notice of Lien has been filed or
recorded, and (b) those levied or imposed on Subsidiaries other than Significant
Subsidiaries the nonpayment of which would not, in the aggregate, have a
Material Adverse Effect. To the best knowledge of the Borrower, there is no
proposed tax assessment against the Borrower or any of its Subsidiaries which
would, if the assessment were made, have a Material Adverse Effect.
(k) FINANCIAL CONDITION.
(i) The audited consolidated balance sheet of the Borrower as
of December 31, 2001 and the unaudited consolidated balance sheets of the
Borrower as of March 31, 2002, and the related consolidated statements of
income, changes in shareholders' equity and cash flows for, each of the
respective periods then ended, copies of which have been furnished to the
Administrative Agent and the Lenders, fairly present the consolidated financial
condition of the Borrower and its consolidated Subsidiaries as of, and the
results of its operations and cash flows for, each of the respective periods
then ended, applied on a consistent basis. Such financial statements were
prepared in accordance with GAAP consistently applied throughout the period
covered thereby, are complete and accurate, and show all material indebtedness
and other liabilities of the Borrower and its consolidated Subsidiaries as of
the date thereof (including liabilities for taxes and material commitments).
(ii) The unaudited unconsolidated balance sheets of the
Borrower as of March 31, 2002, and the related unconsolidated statements of
income, changes in shareholders' equity and cash flows for the period then
ended, copies of which have been furnished to the Administrative Agent and the
Lenders, fairly present the financial position of the Borrower as of, and the
results of its operations and cash flows for, each of the respective periods
then ended, applied on a consistent basis.
(l) ENVIRONMENTAL MATTERS.
(i) The operations of the Borrower and each of its
Subsidiaries comply with all Environmental Laws except where such noncompliance
would not have a Material Adverse Effect.
(ii) The Borrower and each of its Subsidiaries have obtained
all licenses, permits, authorizations and registrations required under any
Environmental Law ("Environmental Permits") necessary for its operations, and
all such Environmental Permits are in good standing, and the Borrower and each
of its Subsidiaries are in compliance with all terms and conditions of such
36
Environmental Permits, except where the failure so to obtain, be in good
standing or be in compliance would not have a Material Adverse Effect.
(iii) None of the Borrower, any of its Subsidiaries or any of
their present Property or operations is subject to any outstanding written order
from or agreement with any Governmental Authority or other Person, nor subject
to any judicial or docketed administrative proceeding, respecting any
Environmental Law, Environmental Claim or Hazardous Material which would have a
Material Adverse Effect.
(iv) There are no conditions or circumstances which may give
rise to any Environmental Claim arising from the operations of the Borrower or
its Subsidiaries which would have a Material Adverse Effect. Without limiting
the generality of the foregoing (i) neither the Borrower nor any of its
Subsidiaries has any underground storage tanks (x) that are not properly
registered or permitted under applicable Environmental Laws or (y) that are
leaking or disposing of Hazardous Materials offsite and (ii) the Borrower and
its Subsidiaries have notified all of their employees of the existence, if any,
of any health hazard arising from the conditions of their employment and have
met all notification requirements under Title III of CERCLA or any other
Environmental Law, except where the failure to so notify would not, in the
aggregate, have a Material Adverse Effect.
(m) REGULATED ENTITIES. Neither the Borrower nor any Person controlling
the Borrower is (i) an "Investment Company" within the meaning of the Investment
Company Act of 1940; or (ii) subject to regulation under the Public Utility
Holding Company Act of 1935 other than pursuant to Section 9(a)(2) thereof, the
Federal Power Act, the Interstate Commerce Act or any regulation thereunder
limiting its ability to incur Debt.
(n) LABOR RELATIONS. There are no strikes, lockouts or other labor
disputes against the Borrower or any of its Subsidiaries or, to the best of the
Borrower's knowledge, threatened against or affecting the Borrower or any of its
Subsidiaries which would have a Material Adverse Effect, and no significant
unfair labor practice complaint is pending against the Borrower or any of its
Subsidiaries or, to the best knowledge of the Borrower, threatened against any
of them before any Governmental Authority which would have a Material Adverse
Effect.
(o) INSURANCE. The Properties of the Borrower and its Significant
Subsidiaries are insured with financially sound and reputable insurance
companies, in such amounts, with such deductibles and covering such risks as is
customarily carried by companies engaged in similar businesses and owning
similar Properties in localities where the Borrower or such Significant
Subsidiary operates.
(p) FULL DISCLOSURE. None of the representations or warranties made by
the Borrower in this Agreement as of the date of such representations and
37
warranties, and none of the statements contained in any certificate furnished by
or on behalf of the Borrower in connection with this Agreement contains any
untrue statement of a material fact or omits any material fact required to be
stated therein or necessary to make the statements made therein, in light of the
circumstances under which they are made, not misleading.
(q) COMPLIANCE WITH APPLICABLE LAWS. Neither the Borrower nor any
Subsidiary is in default with respect to any judgment, order, writ, injunction,
decree or decision of any Governmental Authority which default would have a
Material Adverse Effect. The Borrower and each Subsidiary is complying in all
material respects with all applicable statutes and regulations, including ERISA
and applicable occupational, safety and health and other labor laws, of all
Governmental Authorities, a violation of which would have a Material Adverse
Effect.
(r) RANKING. The Obligations of the Borrower to the Lenders to be
undertaken under the Credit Documents will rank senior to or pari passu with
other Unsecured Debt of the Borrower.
Section 5.02 Survival.
---------
All representations and warranties made by the Borrower in this
Agreement, and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement, shall (i) be considered to have
been relied upon by the Lenders, (ii) survive the making of Loans regardless of
any investigation made by, or on behalf of, the Lenders, and (iii) continue in
full force and effect as long as the Commitments have not been terminated and,
thereafter, so long as any Loan, fee or other amount payable hereunder remains
unpaid.
ARTICLE VI
CONDITIONS PRECEDENT
--------------------
Section 6.01 Conditions to the Availability of the Commitments.
--------------------------------------------------
The obligations of each Lender hereunder are subject to, and the
Lenders' Commitments shall not become available until the earliest date (the
"EFFECTIVE DATE") (which shall be no later than the close of business in New
York City on May 10, 2002) on which each of the following conditions precedent
shall have been satisfied or waived in writing by the Lenders:
(a) THIS AGREEMENT. The Administrative Agent shall have received this
Agreement duly executed and delivered by each of the Lenders and the Borrower.
(b) THE REVOLVING CREDIT NOTES. The Borrower shall have delivered to
the Administrative Agent, for each of the Lenders, a duly executed Revolving
Credit Note.
38
(c) EVIDENCE OF CORPORATE ACTION. The Lenders shall have received the
following:
(i) The articles of incorporation of the Borrower as in
effect on the Effective Date, certified by the Secretary of State
of California as of a recent date and by the Secretary or
Assistant Secretary of the Borrower as of the Effective Date and
the bylaws of the Borrower as in effect on the Effective Date,
certified by the Secretary or Assistant Secretary of the Borrower
as of the Effective Date.
(ii) Certificates of good standing for the Borrower from
each of the Secretary of State of California and the Secretaries
of State of the states where the Borrower conducts its principal
operations, certifying that the Borrower is in good standing in
such states, such certificates to be dated reasonably near the
Effective Date.
(iii) Copies of the resolutions of the board of directors of
the Borrower approving and authorizing the execution, delivery and
performance by the Borrower of this Agreement and the Revolving
Credit Notes and authorizing the borrowings hereunder, certified
as of the Effective Date by the Secretary or an Assistant
Secretary of the Borrower.
(iv) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true signatures
of the officers of the Borrower authorized to sign this Agreement,
the Revolving Credit Notes and any certificates or other
documents, to be delivered in connection herewith.
(d) OPINIONS OF COUNSEL. The Lenders shall have received a favorable
written opinion, dated the Effective Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant
General Counsel of the Borrower, and O'Melveny & ▇▇▇▇▇ LLP, in substantially the
form of Exhibit D.
(e) REPRESENTATIONS AND WARRANTIES; ETC. The following statements shall
be true and the Administrative Agent shall have received a certificate signed by
a Responsible Officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section
5.01 of this Agreement are correct on and as of the Effective Date
as though made on and as of such date;
(ii) Since December 31, 2001, neither the Borrower nor any of
its Subsidiaries have entered into or consummated any transaction
or transactions, and there has occurred no change, affecting the
business, credit, operations, financial condition or prospects of
39
the Borrower and its Subsidiaries, taken as a whole, which would
have a Material Adverse Effect;
(iii) No litigation, proceeding or inquiry before or by any
arbitrator or Governmental Authority is continuing or, to the best
of the Borrower's knowledge, threatened which would have a
Material Adverse Effect; and
(iv) No event has occurred and is continuing which
constitutes a Default or Event of Default.
(f) OTHER DOCUMENTS. The Lenders shall have received such other
certificates, opinions and other documents as the Required Lenders reasonably
may require.
Section 6.02 Conditions to All Loans.
------------------------
The obligations of the Lenders to make each Loan are subject to the
conditions precedent that, on the date of each Loan and after giving effect
thereto, each of the following conditions precedent shall have been satisfied,
or waived in writing by the Lenders:
(a) BORROWING REQUEST. The Administrative Agent shall have received a
Borrowing Request complying with the terms of this Agreement.
(b) NO DEFAULT. No Default or Event of Default shall have occurred and
be continuing, nor shall any Default or Event of Default occur as a result of
the making of such Loan.
(c) REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained in Section 5.01 shall have been true and correct when made and (except
to the extent that any representation or warranty speaks as of a date certain)
shall be true and correct on the Borrowing Date with the same effect as though
such representations and warranties had been made on such Borrowing Date.
Section 6.03 Satisfaction of Conditions Precedent.
-------------------------------------
Each of (i) the delivery by the Borrower of a Borrowing Request (unless
the Borrower notifies the Lenders in writing to the contrary prior to the
Borrowing Date) and (ii) the acceptance of the proceeds of a Loan shall be
deemed to constitute a certification by the Borrower that, as of the Borrowing
Date, each of the conditions precedent contained in Section 6.02 has been
satisfied with respect to any Loans then being made.
40
ARTICLE VII
COVENANTS
---------
Section 7.01 Affirmative Covenants.
----------------------
Until satisfaction in full of all the obligations of the Borrower under
the Credit Documents and termination of the Commitments of the Lenders
hereunder:
(a) FINANCIAL STATEMENTS; COMPLIANCE CERTIFICATES. The Borrower shall
furnish to the Lenders:
(i) As soon as available, but not later than 120 days after
the end of each fiscal year of the Borrower, (i) the audited,
consolidated balance sheet of the Borrower as of the end of such
fiscal year and the related consolidated statements of income,
changes in shareholders' equity and cash flows for such fiscal
year, certified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or other independent
certified public accountants of recognized national standing, and
(ii) the unaudited unconsolidated balance sheet of the Borrower as
of the end of such fiscal year and the related unaudited
unconsolidated statements of income, changes in shareholders'
equity and cash flows for such fiscal year, in each case setting
forth comparative figures for the preceding fiscal year, all in
reasonable detail, certified by a Responsible Officer of the
Borrower who was involved in the preparation of the financial
statements referred to herein;
(ii) As soon as available, but not later than 60 days after
the end of each of the first three quarterly accounting periods in
each fiscal year of the Borrower, (i) the unaudited unconsolidated
balance sheet of the Borrower as of the end of such quarterly
period and the related unaudited unconsolidated statements of
income, changes in shareholders' equity and cash flows, and (ii)
the unaudited consolidated balance sheet of the Borrower as of the
end of such quarterly period and the related unaudited consolidated
statements of income, changes in shareholders' equity and cash
flows for the elapsed portion of the fiscal year ended with the
last day of such quarterly period. Such statements shall be in
reasonable detail and certified by a Responsible Officer of the
Borrower who was involved in the preparation of the financial
statements referred to herein;
(iii) Concurrently with the delivery of the financial
statements referred to in clauses (i) and (ii) above, a certificate
of a Responsible Officer (A) stating that, to the best of such
officer's knowledge after reasonable investigation, the Borrower,
during such period, has observed or performed all of its covenants
and other agreements in all material respects, and satisfied every
condition contained in this Agreement to be observed, performed or
41
satisfied by it, and that such officer has obtained no knowledge of
any Default or Event of Default except as specified in such
certificate, and (B) showing in detail the calculation supporting
such statement in respect of Section 7.03;
(iv) Concurrently with the delivery of the financial
statements referred to in clause (i) above, a comprehensive budget
that has been reviewed by the Board of Directors of the Borrower
for such fiscal year (including pro forma unconsolidated projected
balance sheets, income statements, cash flow statements, in each
case for the current budget year) and financial forecast for the
next two fiscal years, together with an explanation of key
assumptions, all in the form such budget has previously been
delivered to the Administrative Agent;
(v) Within 5 days after the same are sent, copies of all
financial statements and reports which the Borrower sends to its
shareholders, and promptly after the same are filed, copies of all
financial statements and regular, periodical or special reports
which the Borrower may make to, or file with, the SEC; and
(vi) Promptly, such additional financial and other
information as the Administrative Agent, at the request of any
Lender may from time to time reasonably request.
(b) NOTICES. The Borrower shall promptly notify the Administrative
Agent (who shall notify each Lender):
(i) of the occurrence of any Default or Event of Default
and of the occurrence or existence of any event or circumstance
that foreseeably will become a Default or Event of Default;
(ii) of any (A) breach or non-performance of, or any default
under any Contractual Obligation of the Borrower or any of its
Subsidiaries which would be reasonably expected to result in a
Material Adverse Effect; or (B) dispute, litigation, investigation,
proceeding or suspension which may exist at any time between the
Borrower or any of its Subsidiaries and any Governmental Authority
which would reasonably be expected to result in a Material Adverse
Effect;
(iii) of the commencement of, or any material development in,
any litigation or proceeding affecting the Borrower or any
Subsidiary which, if adversely determined, would have a Material
Adverse Effect;
(iv) of any other litigation or proceeding affecting the
Borrower or any of its Subsidiaries which the Borrower would be
42
required to report to the SEC pursuant to the Securities Exchange
Act of 1934, within four days after reporting the same to the SEC;
(v) any ERISA Event affecting the Borrower or any member of
its Controlled Group (but in no event more than ten days after such
ERISA Event) together with (i) a copy of any notice with respect to
such ERISA Event that may be required to be filed with the PBGC and
(ii) any notice delivered by the PBGC to the Borrower or any member
of its Controlled Group with respect to such ERISA Event;
(vi) upon becoming aware thereof, of any Material Adverse
Effect;
(vii) upon becoming aware thereof, of any change in the
Borrower's Senior Debt Rating by ▇▇▇▇▇'▇ or S&P;
(viii) following any change in accounting policies or
financial reporting practices; and
(ix) upon becoming aware of any labor controversy resulting
in or threatening to result in any strike, work stoppage, boycott,
shutdown or other labor disruption against or involving the
Borrower or any Subsidiary and which would reasonably be expected
to have a Material Adverse Effect.
Each notice pursuant to this Section 7.01(b) shall be accompanied
by a written statement by a Responsible Officer of the Borrower setting
forth details of the occurrence referred to therein.
(c) PRESERVATION OF CORPORATE EXISTENCE, ETC. The Borrower shall and
shall cause each of its Significant Subsidiaries to:
(i) preserve and maintain in full force and effect its
corporate existence and good standing under the laws of its state
or jurisdiction of incorporation except as permitted under Section
7.02(b) hereof;
(ii) preserve and maintain in full force and effect all
rights, privileges, qualifications, permits, licenses and
franchises material in the normal conduct of its business;
(iii) use its reasonable efforts, in the ordinary course and
consistent with past practice, to preserve its business
organization and preserve the goodwill and business of the
customers, suppliers and others having business relations with it;
and
43
(iv) preserve or renew all of its registered trademarks,
trade names and service marks, the non-preservation of which would
have a Material Adverse Effect.
(d) MAINTENANCE OF PROPERTY. The Borrower shall maintain, and shall
cause each of its Significant Subsidiaries to maintain, and preserve all its
Property which is used or useful in its business in good working order and
condition, ordinary wear and tear excepted.
(e) INSURANCE. The Borrower shall maintain, and shall cause each
Significant Subsidiary to maintain, with financially sound and reputable
insurers, insurance with respect to its Properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same
or similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons, including workers'
compensation insurance, public liability and property and casualty insurance.
(f) PAYMENTS OF OBLIGATIONS. The Borrower shall, and shall cause its
Subsidiaries to, pay and discharge as the same shall become due and payable, all
obligations and liabilities material to the Borrower and its Subsidiaries taken
as a whole, including:
(i) all tax liabilities, assessments and governmental charges
or levies upon it or its Properties or assets, unless (x) the same
are being contested in good faith by appropriate proceedings and
adequate reserves in accordance with GAAP are being maintained by
the Borrower or such Subsidiary or (y) the same are levied or
imposed on Subsidiaries other than Significant Subsidiaries and the
nonpayment of which would not, in the aggregate, have a Material
Adverse Effect; and
(ii) all lawful claims which, if unpaid, might by law become a
Lien other than a Permitted Lien upon its Property.
(g) COMPLIANCE WITH LAWS. The Borrower shall comply, and shall cause
each of its Subsidiaries to comply, in all material respects with all
Requirements of Law of any Governmental Authority having jurisdiction over it or
its business, except such as may be contested in good faith or as to which a
bona fide dispute may exist or where such noncompliance would not have a
Material Adverse Effect.
(h) INSPECTION OF PROPERTY AND BOOKS AND RECORDS. The Borrower shall
maintain and shall cause each of its Subsidiaries to maintain, proper books of
record and account, in which full, true and correct entries in conformity with
GAAP consistently applied shall be made of all financial transactions and
matters involving the assets and business of the Borrower and such Subsidiaries.
To the extent permitted by applicable law and subject to Section 11.05, the
Borrower will permit, and will cause each of its Subsidiaries to permit,
44
representatives of the Administrative Agent or any Lender to visit and inspect
any of their respective Properties, to examine their respective corporate,
financial and operating records and make copies thereof or abstracts therefrom,
and to discuss their respective affairs, finances and accounts with their
respective directors, officers, employees and independent public accountants,
all at the expense of the Borrower and at such reasonable times during normal
business hours and as often as may be reasonably desired, upon reasonable
advance notice to the Borrower.
Section 7.02 Negative Covenants.
------------------
Until satisfaction in full of all the obligations of the Borrower under
the Credit Documents and termination of the Commitments of the Lenders
hereunder, the Borrower will not, without the written consent of the Required
Lenders:
(a) LIENS. Create or suffer to exist, or permit any of its Subsidiaries
to create or suffer to exist, any lien upon or with respect to any of its
Property except Permitted Liens.
(b) CONSOLIDATIONS AND MERGERS; DISPOSITION OF ASSETS. Merge,
consolidate with or into, or convey, transfer, lease or otherwise dispose of, or
permit any of its Significant Subsidiaries to merge, consolidate with or into,
or convey, transfer, lease or otherwise dispose of, (whether in one transaction
or in a series of transactions) all or substantially all of its assets (whether
now owned or hereinafter acquired) or enter into, or permit any of its
Significant Subsidiaries to enter into, any joint venture or partnership with,
any Person except:
(i) any Significant Subsidiary of the Borrower may merge,
consolidate or combine with or into, or transfer assets to the
Borrower (if the Borrower shall be the continuing or surviving
corporation) or with, into or to any one or more Significant
Subsidiaries of the Borrower; PROVIDED that if any transaction
shall be between a Significant Subsidiary and a wholly-owned
Significant Subsidiary, the wholly-owned Significant Subsidiary
shall be the continuing or surviving corporation;
(ii) any Significant Subsidiary of the Borrower may sell,
lease, transfer or otherwise dispose of any or all of it assets
(upon voluntary liquidation or otherwise), to the Borrower or
another wholly-owned Significant Subsidiary of the Borrower; if
immediately after giving effect thereto no Default or Event of
Default would exist;
(iii) the Borrower may merge, consolidate or combine with
another entity if (1) the Borrower is the corporation surviving the
merger, and (2) immediately after giving effect thereto, no Default
or Event of Default would exist; and
45
(iv) the Borrower and any Subsidiary may enter into joint
ventures and partnerships in the ordinary course of business as
presently conducted.
(c) INVESTMENTS AND ACQUISITIONS. Make, or permit any of its
Significant Subsidiaries to make, any Investments or Acquisitions except for (i)
Permitted Investments, (ii) as required by any Governmental Authority, and (iii)
Acquisitions, provided that:
(i) immediately before or after giving effect to each
Acquisition, no Default shall or would exist, and immediately after giving
effect thereto, all of the representations and warranties contained in this
Agreement shall be true and correct with the same effect as though then made,
(ii) the Person or business acquired is engaged in the same line
of business as the Borrower or any Significant Subsidiary,
(iii) the Borrower shall have delivered to the Administrative Agent
notice thereof not less than ten days prior to the consummation of such
Acquisition,
(iv) the Borrower shall have delivered to the Administrative Agent
a certificate of a financial officer thereof, in all respects reasonably
satisfactory to the Administrative Agent and dated the date of such
consummation,
(1) certifying that prior to and after giving effect to such
Acquisition and based on the most recent financial statements
delivered pursuant to Section 7.01(a), the Borrower is and will be
in compliance with Section 7.03,
(2) demonstrating that the sum (the "Acquisition
Consideration") of (A) the cash consideration paid or agreed to be
paid, plus (B) the fair market value of all non-cash consideration
paid or agreed to be paid and (C) an amount equal to the principal
or stated amount of all liabilities assumed or incurred in
connection with such Acquisition and paid for all Acquisitions
consummated after the Effective Date and prior to such Acquisition
would not exceed $200,000,000 in the aggregate, and
(3) providing or attaching such other information, documents
and other items as the Administrative Agent shall have reasonably
requested.
(d) TRANSACTIONS WITH AFFILIATES. Enter into, or permit any of its
Subsidiaries to enter into, any transaction with any Affiliate of the Borrower
or of any such Subsidiary except as contemplated by this Agreement or in the
ordinary course of business and pursuant to the reasonable requirements of the
business of the Borrower or such Subsidiary and upon fair and reasonable terms
46
no less favorable to the Borrower or such Subsidiary than would be obtained in a
comparable arm's-length transaction with a Person not an Affiliate of the
Borrower or such Subsidiary.
(e) COMPLIANCE WITH ERISA. Directly or indirectly, or permit any ERISA
Affiliate to directly or indirectly (i) terminate, any Plan subject to Title IV
of ERISA so as to result in any material (in the opinion of the Administrative
Agent) liability to the Borrower or any ERISA Affiliate, (ii) permit to exist
any ERISA Event or any other event or condition, which presents the risk of a
material (in the opinion of the Administrative Agent) liability of the Borrower
or any ERISA Affiliate, or (iii) make a complete or partial withdrawal (within
the meaning of ERISA Section 4201) from any Multiemployer Plan so as to result
in any material (in the opinion of the Required Lenders) liability to the
Borrower or any ERISA Affiliate, (iv) enter into any new Plan or modify any
existing plan so as to increase its obligations thereunder except in the
ordinary course of business consistent with past practice which would reasonably
be expected to result in any material (in the opinion of the Administrative
Agent) liability of the Borrower or any ERISA Affiliate, or (v) permit the
present value of all nonforfeitable accrued benefits under each Plan (using the
actuarial assumptions utilized by the PBGC upon termination of a Plan)
materially (in the opinion of the Required Lenders) to exceed the fair market
value of Plan assets allocable to such benefits, all determined as of the most
recent valuation date for each such Plan.
(f) LEASE OBLIGATIONS. Create or suffer to exist, or permit any
Significant Subsidiary to create or suffer to exist, any Lease Obligations,
except for:
(i) leases of the Borrower or any of its Significant
Subsidiaries in existence on the Effective Date and any arms'
length renewal, extension or refinancing thereof, and
(ii) after the Effective Date, any leases entered into by the
Borrower or any of its Significant Subsidiaries in the ordinary
course of business in a manner and to an extent consistent with
past practice.
(g) RESTRICTED PAYMENTS. Declare or make any dividend payment or other
distribution of assets, Properties, cash, rights, obligations or securities on
account of any shares of any class of its capital stock or purchase, redeem or
otherwise acquire for value (or permit any of its Subsidiaries to do so) any
shares of its capital stock or any warrants, rights or options to acquire such
shares, now or hereafter outstanding if a Default or Event of Default has
occurred and is continuing or would result therefrom.
(h) CHANGE IN BUSINESS. Engage, or permit any of its Subsidiaries to
engage, in any material line of business substantially different from those
lines of business carried on by it on the date hereof.
47
Section 7.03 Financial Covenants.
--------------------
(a) LEVERAGE RATIO
Until satisfaction in full of all the obligations of the Borrower under
the Credit Documents and termination of the Commitments of the Lenders
hereunder, the Borrower will not permit the ratio of Funded Debt to Total
Capitalization to exceed 0.70 to 1.00 as of the end of any quarter of any fiscal
year.
(b) NET WORTH
Until satisfaction in full of all of the obligations of the Borrower
under the Credit Documents and the termination of the Commitments of the Lenders
hereunder, the Borrower will not permit its Net Worth as of the end of any
quarter of any fiscal year to be less than $450,000,000 plus 25% of the net
proceeds of any Equity Issuance.
ARTICLE VIII
EVENTS OF DEFAULT
-----------------
Section 8.01 EVENTS OF DEFAULT
If one or more of the following events (each, an "Event of Default")
shall occur:
(a) The Borrower shall fail duly to pay any principal of any Loan when
due, whether at maturity, by notice of intention to prepay or otherwise; or
(b) The Borrower shall fail duly to pay any interest, fee or any other
amount payable under the Credit Documents within two Business Days after the
same shall be due; or
(c) Any representation or warranty made or deemed made by the Borrower
herein, or any statement or representation made in any certificate, report or
opinion delivered by or on behalf of the Borrower in connection herewith, shall
prove to have been false or misleading in any material respect when so made or
deemed made; or
(d) The Borrower shall fail duly to observe or perform any other term,
covenant or agreement contained in this Agreement; or
(e) The Borrower or any Subsidiary shall fail to pay any of its
Obligations (other than its obligations hereunder) in an amount of $10,000,000
or more when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), or any other default or event of default
under any agreement or instrument relating to any such obligation shall occur
and shall continue after the applicable grace period, if any, specified in such
agreement or instrument, or if the maturity of such obligation is accelerated,
or any such obligation shall be declared to be due and payable, or required to
be prepaid prior to the stated maturity thereof, or
48
(f) One or more judgments against the Borrower or attachments against
its Property, which in the aggregate exceed $10,000,000 not covered by
insurance, or the operation or result of which would interfere materially and
adversely with the conduct of the business of the Borrower, shall remain unpaid,
unstayed on appeal, undischarged, unbonded and undismissed for a period of 30
days or more; or any Person shall have filed any suit, action or proceeding
which results in the granting of any form of injunction or restraining order,
temporary or otherwise, the compliance with which would have a Material Adverse
Effect, and which injunction or restraining order is not dissolved (or otherwise
terminated) or modified within 30 days so as to eliminate that portion of such
injunction or restraining order which would have such Material Adverse Effect;
or
(g) Any order, writ, warrant, garnishment or other process of any court
attaching, garnishing, distraining or otherwise freezing assets of the Borrower
in an amount equal to $10,000,000 or more in value in the aggregate for all such
orders, writs, warrants, garnishments shall remain unstayed on appeal,
undischarged or undismissed for a period of 30 days or more; or
(h) (i) The Borrower shall commence any case, proceeding, or other
action (A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of debts,
seeking to have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other relief
with respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any
substantial part of its assets, or the Borrower shall make a general assignment
for the benefit of its creditors; or (ii) there shall be commenced against the
Borrower any case, proceeding or other action of a nature referred to in clause
(i) above and such case, proceeding or action shall not have been vacated,
discharged or stayed within 60 days from the entry thereof, or (iii) the
Borrower shall consent to the institution of, or fail to controvert in a timely
and appropriate manner, any case, proceeding or other action of a nature
referred to above; or (iv) the Borrower shall file an answer admitting the
material allegations of a petition filed against it in any case, proceeding or
other action of a nature referred to above; or (v) the Borrower shall generally
not, or shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or (vi) the Borrower shall take corporate action for
the purpose of effecting any of the foregoing; or
(i) The Borrower or an ERISA Affiliate shall fail to pay when due,
after the expiration of any applicable grace period, any installment payment
with respect to its withdrawal liability under a Multiemployer Plan; (ii) the
Borrower or an ERISA Affiliate shall fail to satisfy its contribution
requirements under Section 412(c)(II) of the Code, whether or not it has sought
a waiver under Section 412(d) of the Code; (iii) the Unfunded Pension
49
Liabilities of a Plan or Plans shall exceed $50,000,000; (iv) a Plan that is
intended to be qualified under Section 401(a) of the Code shall lose its
qualification, and such loss can reasonably be expected to impose on the
Borrower or an ERISA Affiliate liability (for additional taxes, to Plan
participants, or otherwise) in the aggregate amount of $50,000,000 or more; (v)
the commencement or increase of contributions to, the adoption of, or the
amendment of a Plan by, the Borrower or an ERISA Affiliate shall result in a net
increase in unfunded liabilities of the Borrower or an ERISA Affiliate in excess
of $50,000,000; or (vi) any combination of events listed in clause (iii) through
(vi) that involves a net increase in aggregate Unfunded Pension Liabilities and
unfunded liabilities in excess of $50,000,000 shall occur; or
(j) All or substantially all of the Property of the Borrower or its
Subsidiaries shall be condemned, seized or appropriated, excluding Property of a
Subsidiary other than a Significant Subsidiary the condemnation, seizure or
appropriation of which would not have a Material Adverse Effect; or
(k) Any Governmental Authority shall revoke or fail to renew any
license, permit or franchise of the Borrower or any of its Subsidiaries, or the
Borrower or any of its Subsidiaries shall for any reason lose any license,
permit or franchise, if such revocation, non-renewal or loss would have a
Material Adverse Effect; or
(l) Any Credit Document shall cease to be in full effect; or
(m) An Event of Default under the 364-Day Agreement shall occur; or
(n) A Change in Control shall occur;
then, and at any time during the continuance of such Event of Default, the
Required Lenders, may, by written notice to the Borrower, take either or both of
the following actions, at the same or different times: (i) terminate forthwith
the Commitments and (ii) declare any Loans then outstanding to be due and
payable, whereupon the principal of the Loans so declared to be due, together
with accrued interest thereon and any other unpaid amounts accrued under the
Credit Documents, shall become forthwith due and payable, without presentment,
demand, protest or any other notice of any kind (all of which are hereby
expressly waived by the Borrower); provided that, in the case of any Event of
Default described in Section 8.01(h) occurring with respect to the Borrower, the
Commitments shall automatically and immediately terminate and the principal of
all Loans then outstanding, together with accrued interest thereon and any other
unpaid amounts accrued under the Credit Documents, shall automatically and
immediately become due and payable without presentment, demand, protest or any
other notice of any kind (all of which are hereby expressly waived by the
Borrower).
50
ARTICLE IX
THE ADMINISTRATIVE AGENT
------------------------
Section 9.01 The Agency.
-----------
Each Lender appoints The Bank of New York as its agent hereunder and
irrevocably authorizes the Administrative Agent to take such action on its
behalf and to exercise such powers hereunder and thereunder as are specifically
delegated to the Administrative Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto, and the Administrative
Agent hereby accepts such appointment subject to the terms hereof. The
relationship between the Administrative Agent and the Lenders shall be that of
agent and principal only and nothing herein shall be construed to constitute the
Administrative Agent a trustee or fiduciary for any Lender nor to impose on the
Administrative Agent duties or obligations other than those expressly provided
for herein.
Section 9.02 The Administrative Agent's Duties.
----------------------------------
The Administrative Agent shall promptly forward to each Lender copies,
or notify each Lender as to the contents, of all notices received from the
Borrower pursuant to the terms of this Agreement and, in the event that the
Borrower fails to pay when due the principal of or interest on any Loan, the
Administrative Agent shall promptly give notice thereof to the Lenders. As to
any other matter not expressly provided for herein, the Administrative Agent
shall have no duty to act or refrain from acting with respect to the Borrower,
except upon the instructions of the Required Lenders. The Administrative Agent
shall not be bound by any waiver, amendment, supplement, or modification of this
Agreement which affects its duties hereunder, unless it shall have given its
prior written consent thereto. The Administrative Agent shall have no duty to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, covenants or agreements binding on the Borrower pursuant to this
Agreement nor shall the Administrative Agent be deemed to have knowledge of the
occurrence of any Default or Event of Default (other than a failure of the
Borrower to pay when due the principal or interest on any Loan), unless it shall
have received written notice from the Borrower or a Lender specifying such
Default or Event of Default and stating that such notice is a "Notice of
Default".
Section 9.03 Limitation of Liabilities.
--------------------------
Each of the Lenders and the Borrower agree that (i) neither the
Administrative Agent nor any of its officers or employees shall be liable for
any action taken or omitted to be taken by any of them hereunder except for its
or their own gross negligence or willful misconduct, (ii) neither the
Administrative Agent nor any of its officers or employees shall be liable for
any action taken or omitted to be taken by any of them in good faith in reliance
upon the advice of counsel, independent public accountants or other experts
selected by the Administrative Agent, and (iii) the Administrative Agent shall
51
be entitled to rely upon any notice, consent, certificate, statement or other
document believed by it to be genuine and correct and to have been signed and/or
sent by the proper Persons.
Section 9.04 The Administrative Agent as a Lender.
-------------------------------------
The Administrative Agent may, without any liability to account,
maintain deposits or credit balances for, invest in, lend money to and generally
engage in any kind of banking business with the Borrower or any Subsidiary or
Affiliate of the Borrower without any duty to account therefor to the other
Lenders.
Section 9.05 Lender Credit Decision.
-----------------------
Neither the Administrative Agent, nor any of its Affiliates, officers
or employees has any responsibility for, gives any guaranty in respect of, nor
makes any representation to the Lenders as to, (i) the condition, financial or
otherwise, of the Borrower or any Subsidiary thereof or the truth of any
representation or warranty given or made in this Agreement, or in connection
herewith or therewith or (ii) the validity, execution, sufficiency,
effectiveness, construction, adequacy, enforceability or value of this Agreement
or any other document or instrument related hereto. Except as specifically
provided herein, neither the Administrative Agent nor any of its Affiliates,
officers or employees shall have any duty or responsibility, either initially or
on a continuing basis, to provide any Lender with any credit or other
information with respect to the operations, business, property, condition or
creditworthiness of the Borrower or any of its Subsidiaries, whether such
information comes into the Administrative Agent's possession on or before the
date hereof or at any time thereafter. Each Lender acknowledges that (i) it has,
independently and without reliance upon the Administrative Agent or any other
Lender, based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and (ii)
all information reviewed by it in its credit analysis or otherwise in connection
herewith has been provided solely by or on behalf of the Borrower, and the
Administrative Agent has no responsibility for such information. Each Lender
also acknowledges that it will independently and without reliance upon the
Administrative Agent or any other Lender, based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under any Credit Document.
Section 9.06 Indemnification.
----------------
Each Lender agrees to indemnify the Administrative Agent, to the extent
not reimbursed by the Borrower, ratably in proportion to its Commitment, from
and against any and all liabilities, obligations, losses, claims, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement, or any action taken or omitted to be taken by the Administrative
52
Agent hereunder; provided, that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross negligence or
willful misconduct of the Administrative Agent or any of its officers or
employees. Without limiting the foregoing, each Lender agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including fees and disbursements of counsel incurred by
the Administrative Agent in connection with the preparation, execution or
enforcement of, or legal advice in respect of rights or responsibilities under,
any Credit Document or any amendments or supplements thereto, to the extent that
the Administrative Agent is not reimbursed for such expenses by the Borrower.
Except for action expressly required of the Administrative Agent hereunder, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall receive further assurances to its
satisfaction from the Lenders of their indemnification obligations under this
Section 9.06 against any and all liability and expense that may be incurred by
it by reason of taking or continuing to take any such action.
Section 9.07 Successor Administrative Agent
------------------------------
The Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent reasonably acceptable to the Borrower. If no successor Administrative
Agent shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the resigning Administrative
Agent's giving of notice of resignation, the resigning Administrative Agent may
appoint a successor Administrative Agent, which shall be a commercial bank
organized or licensed under the laws of the United States of America or of any
State thereof and having a combined capital and surplus of at least
$250,000,000. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the resigned Administrative Agent, and the resigned
Administrative Agent shall be discharged from its duties and obligations under
this Agreement. After any Administrative Agent's resignation, the provisions of
this Article IX shall continue to inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement.
ARTICLE X
EVIDENCE OF LOANS; TRANSFERS
----------------------------
Section 10.01 Evidence of Loans; Revolving Credit Notes.
------------------------------------------
The Borrower's obligation to repay the Revolving Credit Loans shall be
evidenced by Revolving Credit Notes, one such payable to the order of each
53
Lender. The Revolving Credit Note of each Lender shall (i) be in the principal
amount of such Lender's Commitment, (ii) be dated the Effective Date and (iii)
be stated to mature on the Termination Date and bear interest from its date
until maturity on the principal balance (from time to time outstanding
thereunder) payable at the rates and in the manner provided herein. Each Lender
is authorized to indicate upon the grid attached to its Revolving Credit Note
all Revolving Credit Loans made by it pursuant to this Agreement, interest
elections and payments of principal and interest thereon. Such notations shall
be presumptive, absent manifest error, as to the aggregate unpaid principal
amount of all Revolving Credit Loans made by such Lender, and interest due
thereon, but the failure by any Lender to make such notations or the inaccuracy
or incompleteness of any such notations shall not affect the obligations of the
Borrower hereunder or under the Revolving Credit Notes.
Section 10.02 Participations.
---------------
Any Lender may at any time grant to one or more financial institutions
(each a "PARTICIPANT") participating interests in its Commitment or any or all
of its Loans. In the event of any such grant by a Lender of a participating
interest to a Participant, whether or not upon notice to the Borrower and the
Administrative Agent, such Lender shall remain responsible for the performance
of its obligations hereunder, and, except to the extent such participating
interest has been granted pursuant to Section 4.02(e), the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement.
Any agreement pursuant to which any Lender may grant such a participating
interest shall provide that such Lender shall retain the sole right and
responsibility to enforce the obligations of the Borrower hereunder including
the right to approve any amendment, modification or waiver of any provision of
this Agreement; provided, that such participation agreement may provide that
such Lender will not agree to any modification, amendment or waiver of this
Agreement described in clauses (i) through (vi), inclusive, of Section 11.06
without the consent of the Participant.
Section 10.03 Assignments.
------------
(a) Any Lender may at any time assign to one or more financial
institutions (each an "ASSIGNEE") all, or a proportionate part of all, of its
rights and obligations under this Agreement, and such Assignee shall assume such
rights and obligations, pursuant to an instrument, in substantially the form of
EXHIBIT E (an "ASSIGNMENT AND ACCEPTANCE"), executed by such Assignee and such
transferring Lender, with (and subject to) the signed consent of the Borrower
and the Administrative Agent (which consents shall not be unreasonably
withheld); PROVIDED, that the foregoing consent requirement shall not be
applicable in the case of an assignment or other transfer by any Lender to an
affiliate of such Lender, to another Lender or to a Federal Reserve Bank
PROVIDED further, that any consent of the Borrower otherwise required under this
Section shall not be required if an Event of Default has occurred and is
continuing. Upon execution and delivery of an Assignment and Acceptance and
54
payment by such Assignee to such transferring Lender of an amount equal to the
purchase price agreed between such transferring Lender and such Assignee and
payment by the transferring Lender or the Assignee of an assignment fee of
$3,500 to the Administrative Agent, such Assignee shall be a Lender party to
this Agreement and shall have all the rights and obligations of a Lender with a
Commitment as set forth in such Assignment and Acceptance, and the transferring
Lender shall be released from its obligations hereunder to a corresponding
extent, and no further consent or action by any party shall be required.
(b) No Assignee of any transferring Lender's rights shall be entitled
to receive any greater payment under Section 4.03 or 4.04 than such Lender would
have been entitled to receive with respect to the rights transferred, unless
such transfer is made with the Borrower's prior written consent or by reason of
the provisions of Section 4.04(c) requiring such transferring Lender to
designate a different Applicable Lending Office under certain circumstances or
at a time when the circumstances giving rise to such payment did not exist.
Section 10.04 Certain Pledges.
----------------
Notwithstanding any other provision in this Agreement, any Lender may
at any time create a security interest in, or pledge, all or any portion of its
rights under this Agreement and any Revolving Credit Note held by it in favor of
any Federal Reserve Bank in accordance with Federal Reserve Board Regulation A
(or any successor provision) or U.S. Treasury Regulation 31 C.F.R. ss. 203.14
(or any successor provision), and such Federal Reserve Bank may enforce such
pledge or security interest in any manner permitted under applicable law.
ARTICLE XI
MISCELLANEOUS
-------------
Section 11.01 APPLICABLE LAW.
---------------
THE RIGHTS AND DUTIES OF THE BORROWER, THE ADMINISTRATIVE AGENT AND THE
LENDERS UNDER THIS AGREEMENT SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW
SECTION 5-1401, BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
Section 11.02 WAIVER OF JURY.
---------------
THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS EACH HEREBY
WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
55
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, THE REVOLVING
CREDIT NOTES OR THE RELATIONSHIPS ESTABLISHED HEREUNDER.
Section 11.03 Jurisdiction and Venue.
-----------------------
The Borrower, the Administrative Agent and the Lenders each hereby
irrevocably submits to the non-exclusive jurisdiction of any state or federal
court in the Borough of Manhattan, The City of New York for the purpose of any
suit, action, proceeding or judgment relating to or arising out of any Credit
Document. The Borrower, the Administrative Agent and the Lenders each hereby
irrevocably consents to the jurisdiction of any such court in any such action
and to the laying of venue in the Borough of Manhattan, The City of New York.
The Borrower, the Administrative Agent and the Lenders each hereby irrevocably
waives, to the fullest extent permitted by applicable law, any objection to the
laying of the venue of any such suit, action or proceeding brought in the
aforesaid courts and hereby irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum.
Section 11.04 Set-off.
--------
The Borrower hereby authorizes each Lender (including each Lender in
its capacity as a purchaser of a participation interest pursuant to Section
4.02(e)) upon the occurrence of an Event of Default and at any time and from
time to time during the continuance thereof, to the fullest extent permitted by
law, to set-off and apply any and all deposits (whether general or special, time
or demand, provisional or final and in whatever currency) at any time held, and
other Indebtedness at any time owing, by such Lender to or for the credit or the
account of the Borrower against any of the obligations of the Borrower, now or
hereafter existing under any Credit Document, held by such Lender, irrespective
of whether such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this
Section 11.04 are in addition to other rights and remedies (including other
rights of set-off) which such Lender may have. Any Lender exercising its rights
under this Section 11.04 shall give notice thereof to the Borrower and the
Administrative Agent concurrently with or prior to the exercise of such rights;
provided that failure to give such notice shall not affect the validity of such
exercise.
Section 11.05 Confidentiality.
----------------
The Lenders and the Administrative Agent agree (on behalf of themselves
and each of their Affiliates, directors, officers, employees and
representatives) to take normal and reasonable precautions and exercise due care
to maintain the confidentiality of all non-public information provided to them
by the Borrower or any Subsidiary or by the Administrative Agent on the
Borrower's or any Subsidiary's behalf in connection with this Agreement and
neither the Administrative Agent, any Lender, nor any of their Affiliates,
56
directors, officers, employees and representatives shall use any such
information for any purpose or in any manner other than pursuant to the terms
contemplated by this Agreement, except to the extent such information (a) was or
becomes generally available to the public other than as a result of a disclosure
by the Administrative Agent or any Lender, or (b) was or becomes available on a
non-confidential basis from a source other than the Borrower, provided that such
source is not bound by a confidentiality agreement with the Borrower known to
the Administrative Agent or affected Lender(s); PROVIDED that nothing herein
shall limit the disclosure of any such information (i) to the extent required by
statute, rule, regulation or judicial process; (ii) to counsel for any of the
Lenders or the Administrative Agent; (iii) to bank examiners, auditors or
accountants; (iv) to the Administrative Agent or any other Lender; (v) by the
Administrative Agent or any Lender to an Affiliate thereof who is bound by this
Section 11.05; provided that any such information delivered to an Affiliate
shall be for the purposes related to the extension of credit represented by this
Agreement and the administration and enforcement thereof and for no other
purpose; (vi) in connection with any litigation relating to enforcement of the
Credit Documents or (vii) to any assignee or participant (or prospective
assignee or participant) so long as such assignee or participant (or prospective
assignee or participant) first executes and delivers to the respective Lender a
Confidentiality Agreement, in substantially the form of EXHIBIT F.
Section 11.06 Integration; Amendments and Waivers.
------------------------------------
(a) This Agreement and any separate letter agreements with respect to
fees payable by the Borrower with respect to this Agreement constitute the
entire agreement among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof.
(b) Any provision of this Agreement may be amended, modified,
supplemented or waived, but only by a written amendment or supplement, or
written waiver, signed by the Borrower and either the Required Lenders (and, if
the rights or duties of the Administrative Agent are affected thereby, by the
Administrative Agent), or the Administrative Agent with the consent of the
Required Lenders; PROVIDED , however, that no such amendment, modification, or
waiver shall, unless signed by all the Lenders, or by the Administrative Agent
with the consent of all the Lenders, (i) increase or decrease the Commitment of
any Lender or subject any Lender to any additional obligation, (ii) reduce the
principal of or rate of interest on any Loan or any fees hereunder, (iii)
postpone any payment of principal of or interest on any Loan or any fees
hereunder, (iv) postpone any reduction or termination of any Commitment, (v)
change the percentage, or type of, the Commitments or of the aggregate unpaid
principal amount of Loans, or the number of Lenders, which shall be required for
the Lenders or any of them to take any action under this Section 11.06 or any
other provision of this Agreement, or (vi) amend, modify, supplement or waive
the provisions of this Section 11.06. Except to the extent expressly set forth
57
therein, any waiver shall be effective only in the specific instance and for the
specific purpose for which such waiver is given.
Section 11.07 Cumulative Rights; No Waiver.
-----------------------------
Each and every right granted to the Administrative Agent and the
Lenders hereunder or under any other document delivered in connection herewith,
or allowed them by law or equity, shall be cumulative and not exclusive and may
be exercised from time to time. No failure on the part of the Administrative
Agent or any Lender to exercise, and no delay in exercising, any right will
operate as a waiver thereof, nor will any single or partial exercise by the
Administrative Agent or any Lender of any right preclude any other or future
exercise thereof or the exercise of any other right.
Section 11.08 Notices.
--------
(a) Any communication, demand or notice to be given hereunder will be
duly given when delivered in writing or by telecopy to a party at its address as
indicated below or such other address as such party may specify in a notice to
each other party hereto. A communication, demand or notice given pursuant to
this Section 11.08 shall be addressed:
If to the Borrower, at
Southwest Gas Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Treasury Services
If to the Administrative Agent, at
BNY Capital Markets, Inc.
Agency Function Administration
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
58
With a copy to:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
If to any Lender, at its address indicated on SCHEDULE I hereto, or at
such other address as may be designated by such Lender in an Administrative
Questionnaire or other appropriate writing, delivered to the Administrative
Agent and the Borrower.
This Section 11.08 shall not apply to notices referred to in Article II
of this Agreement, except to the extent set forth therein.
(b) Unless otherwise provided to the contrary herein, any notice which
is required to be given in writing pursuant to the terms of this Agreement may
be given by telecopy.
Section 11.09 Separability.
----------------------------
In case any one or more of the provisions contained in any Credit
Document shall be invalid, illegal or unenforceable in any respect under any
law, the validity, legality and enforceability of the remaining provisions
contained herein or in any other Credit Document shall not in any way be
affected or impaired thereby.
Section 11.10 Parties in Interest.
--------------------
This Agreement shall be binding upon and inure to the benefit of the
Borrower and the Lenders and their respective successors and assigns, except
that the Borrower may not assign any of its rights hereunder without the prior
written consent of all of the Lenders, and any purported assignment by the
Borrower without such consent shall be void.
Section 11.11 Execution in Counterparts.
--------------------------
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all the counterparts, including
counterparts delivered by facsimile, shall together constitute one and the same
instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
59
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SOUTHWEST GAS CORPORATION
By:
------------------------
Name:
Title:
SOUTHWEST GAS CORPORATION
MULTI-YEAR REVOLVING CREDIT AGREEMENT
THE BANK OF NEW YORK, as a Lender
and as Administrative Agent
By:
-------------------------------
Name:
Title:
SOUTHWEST GAS CORPORATION
MULTI-YEAR REVOLVING CREDIT AGREEMENT
BANK OF AMERICA, N.A., as a Lender
and as Syndication Agent
By:
-------------------------------
Name:
Title:
SOUTHWEST GAS CORPORATION
MULTI-YEAR REVOLVING CREDIT AGREEMENT
BANK ONE, NA, as a Lender and as
Co-Documentation Agent
By:
-----------------------------
Name:
Title:
SOUTHWEST GAS CORPORATION
MULTI-YEAR REVOLVING CREDIT AGREEMENT
UNION BANK OF CALIFORNIA, N.A., as
a Lender and as Co-Documentation Agent
By:
-----------------------------------
Name:
Title:
SOUTHWEST GAS CORPORATION
MULTI-YEAR REVOLVING CREDIT AGREEMENT
FLEET NATIONAL BANK
By:
------------------------------
Name:
Title:
SOUTHWEST GAS CORPORATION
MULTI-YEAR REVOLVING CREDIT AGREEMENT
KBC BANK, N.V.
By:
------------------------------
Name:
Title:
SOUTHWEST GAS CORPORATION
MULTI-YEAR REVOLVING CREDIT AGREEMENT
MELLON BANK, N.A.
By:
------------------------------
Name:
Title:
SOUTHWEST GAS CORPORATION
MULTI-YEAR REVOLVING CREDIT AGREEMENT
U. S. BANK NATIONAL ASSOCIATION
By:
------------------------------
Name:
Title:
Schedule I
----------
Lenders and Commitments
-----------------------
Commitment
as of
the Effective Address for
Lender Date Notices
------ ---- -------
The Bank of New York $24,500,000 The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Bank of America, N.A. $24,500,000 Bank of America, N.A.
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Relationship Manager
Bank One, NA $21,500,000 Bank One, N.A.
1 Bank One Plaza
Suite IL 1-0634
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Client Service Associate
Union Bank of California, N.A. $17,500,000 Union Bank of California, N.A.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
Commercial Loan
Operations
Fleet National Bank $12,500,000 Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
KBC Bank, N.V. $10,000,000 KBC Bank, N.V.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Bank, N.A. $ 7,500,000 Mellon Bank, N.A.
Three Mellon Center,
Room 1203
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
U.S. Bank National Association $ 7,500,000 U.S. Bank National Association
▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Participation Specialist
Commercial Loan
Servicing Department
Exhibit A
Form of Borrowing Request For Revolving Credit Loans
[Date]
Attention:
---------------------
Borrowing Request for Revolving Credit Loans
--------------------------------------------
Ladies and Gentlemen:
Reference is made to the Multi-Year Revolving Credit Agreement, dated
as of May 10, 2002 (as amended, modified or supplemented from time to time, the
"CREDIT AGREEMENT"), among Southwest Gas Corporation (the "BORROWER"), the
Lenders from time to time parties thereto and The Bank of New York as
Administrative Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit Agreement.
The Borrower hereby gives you notice, pursuant to Section 2.02 of the
Credit Agreement, that it requests Revolving Credit Loans, and in that
connection sets forth below the terms on which such Revolving Credit Loans are
requested to be made:
(A) Borrowing Date 1 [ ]
-----------------
(B) Aggregate Principal Amount 2 $
-----------------
(C) Interest Rate Basis [ABR] [Eurodollar Revolving] Loan
---------------------------------
(D) Interest Period and the
last day thereof 3 [ ]
-----------------
Very truly yours,
SOUTHWEST GAS CORPORATION
By:
-----------------------
Title:
-------------------------
1 Must be a Business Day.
2 Must be an amount not less than $5,000,000, or an integral multiple of
$1,000,000 in excess thereof, in the case of Eurodollar Revolving Loans,
or at least $1,000,000 or an integral multiple of $100,000 in excess
thereof in the case of an ABR Loans.
3 In the case of Eurodollar Revolving Loans, one week, one, two, three or
six-month periods, or, if made available by all Lenders, periods of
twelve months. Not applicable to ABR Loans.
Exhibit B
---------
Form of Continuation/Conversion Request
---------------------------------------
[Date]
Attention:
--------------------
Continuation/Conversion Request
-------------------------------
Ladies and Gentlemen:
Reference is made to the Multi-Year Revolving Credit Agreement, dated
as of May 10, 2002 (as amended, modified or supplemented from time to time, the
"CREDIT AGREEMENT"), among Southwest Gas Corporation (the "Borrower"), the
Lenders from time to time parties thereto and The Bank of New York, as
Administrative Agent. Capitalized terms used herein but not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit Agreement.
The Borrower hereby requests, pursuant to Section 3.05(a) of the
Credit Agreement, that on __________, 200_:
(1) $__,000,000 of the presently outstanding principal amount
of Revolving Credit Loans originally made on ___________ 200_ [and
$__________ of the presently outstanding principal amount of the
Revolving Credit Loans originally made on ___________ 200_],
(2) presently being maintained as [ABR] [Eurodollar] Loans,
(3) be [converted into] [continued as], [Eurodollar Revolving
Loans having an Interest Period of [one week] [one] [two] [three] [six]
[twelve] months].
Very truly yours,
SOUTHWEST GAS CORPORATION
By:
------------------------
Title:
Exhibit C
Form of Revolving Credit Note
-----------------------------
PROMISSORY NOTE
[Principal Amount] [Date]
SOUTHWEST GAS CORPORATION, a California corporation (the "Borrower"),
for value received, promises to pay to the order of [LENDER] (the "Lender"), on
the Termination Date (as defined in the Credit Agreement referred to below), the
principal sum of [PRINCIPAL AMOUNT IN DOLLARS] or, if less, the aggregate
principal amount of the Revolving Credit Loans made by the Lender to the
Borrower pursuant to that certain Multi-Year Revolving Credit Agreement, dated
as of May 10, 2002 (as amended, modified or supplemented from time to time, the
"CREDIT AGREEMENT"), among the Borrower, the Lenders from time to time parties
thereto and The Bank of New York, as Administrative Agent.
The Borrower also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding, from the date hereof until the date
of repayment, at the rate or rates per annum and on the date or dates specified
in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money
of the United States of America in funds immediately available to the Lender at
its office or offices designated in accordance with the Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive diligence, presentment, demand, protest and notice of any kind
whatsoever. The failure or forbearance by the holder to exercise any of its
rights hereunder in any particular instance shall in no event constitute a
waiver thereof.
All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates thereof
shall be endorsed by the holder of this Note on the schedule attached hereto and
made a part hereof, or on a continuation thereof which shall be attached hereto
and made a part hereof, PROVIDED, however, that any failure of the holder of
this Note to make such a notation or any error in such notation shall in no
manner affect the validity or enforceability of the obligation of the Borrower
to make payments of principal and interest in accordance with the terms of this
Note and the Credit Agreement.
This Note is one of the Revolving Credit Notes referred to in the
Credit Agreement, which, among other things, contains provisions for the
acceleration of the maturity hereof upon the happening of certain events, for
optional prepayment of the principal hereof prior to the maturity thereof and
for the amendment or waiver of certain provisions of the Credit Agreement and/or
this Note, all upon the terms and conditions therein specified. Capitalized
terms used and not otherwise defined herein have the meanings ascribed thereto
in the Credit Agreement.
2
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL, PURSUANT TO NEW
YORK GENERAL OBLIGATIONS LAW SECTION 5-1401 BE GOVERNED BY THE LAW OF THE STATE
OF NEW YORK.
This Note is not negotiable and interests herein may be assigned only
upon the terms and conditions specified in the Credit Agreement.
SOUTHWEST GAS CORPORATION
By:
-----------------------
Title:
3
REVOLVING CREDIT LOANS AND PRINCIPAL PAYMENTS
Amount of Revolving Amount of Principal Amount of Unpaid
Credit Loans Made Repaid Principal Balance
------------------------------------------------------------------------------------------------------------------------------------
Date ABR Euro Interest ABR Euro ABR Euro Total Notation
Loan dollar Period (if Loan dollar Loan dollar Made By
Loan applicable) Loan Loan
------------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------- ---------------
------------ ---------- ------------ -------------- --------- --------- ----- ----------------- ------- ------------ ---------------
------------ ---------- ------------ -------------- --------- --------- ----- ----------------- ------- ------------ ---------------
------------ ---------- ------------ -------------- --------- --------- ----- ----------------- ------- ------------ ---------------
------------ ---------- ------------ -------------- --------- --------- ----- ----------------- ------- ------------ ---------------
------------ ---------- ------------ -------------- --------- --------- ----- ----------------- ------- ------------ ---------------
------------ ---------- ------------ -------------- --------- --------- ----- ----------------- ------- ------------ ---------------
------------ ---------- ------------ -------------- --------- --------- ----- ----------------- ------- ------------ ---------------
------------ ---------- ------------ -------------- --------- --------- ----- ----------------- ------- ------------ ---------------
------------ ---------- ------------ -------------- --------- --------- ----- ----------------- ------- ------------ ---------------
------------ ---------- ------------ -------------- --------- --------- ----- ----------------- ------- ------------ ---------------
------------ ---------- ------------ -------------- --------- --------- ----- ----------------- ------- ------------ ---------------
------------ ---------- ------------ -------------- --------- --------- ----- ----------------- ------- ------------ ---------------
------------------------------------------------------------------------------------------------------------------------------------
Exhibit D
Form of Opinion of
Counsel for the Borrower
------------------------
[to come]
Exhibit E
Form of Assignment and Acceptance
---------------------------------
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Multi-Year Revolving Credit Agreement, dated
as of May 10, 2002 (as amended, modified or supplemented from time to time, the
"CREDIT AGREEMENT"), among Southwest Gas Corporation (the "Borrower"), the
Lenders from time to time parties thereto and The Bank of New York, as
Administrative Agent. Capitalized terms defined in the Credit Agreement are used
herein with the same meanings.
Section 1. ASSIGNMENT AND ACCEPTANCE. The Assignor identified in ANNEX
I hereto (the "ASSIGNOR") hereby sells and assigns, without recourse, to the
Assignee identified in ANNEX I hereto (the "ASSIGNEE"), and the Assignee hereby
purchases and assumes, without recourse, from the Assignor, effective as of the
Transfer Effective Date set forth in Annex I hereto, the interests set forth on
ANNEX 1 hereto (the "ASSIGNED INTEREST") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
interests set forth on ANNEX I in the Commitment of the Assignor on the Transfer
Effective Date and Revolving Credit Loans owing to the Assignor which are
outstanding on the Transfer Effective Date. Each of the Assignor and the
Assignee hereby makes and agrees to be bound by all the representations,
warranties and agreements set forth in Section 9.05 of the Credit Agreement, a
copy of which has been received by the Assignee. From and after the Transfer
Effective Date (i) the Assignee shall be a party to and be bound by the
provisions of the Credit Agreement and, to the extent of the interests assigned
by this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent of the interests assigned
by this Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Credit Agreement.
Section 2. OTHER DOCUMENTATION. This Assignment and Acceptance is being
delivered to the Administrative Agent together with a properly completed
Administrative Questionnaire, attached as ANNEX 2 hereto, if the Assignee is not
already a Lender under the Credit Agreement.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNOR. The Assignor
(i) represents and warrants that, as of the date hereof, it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is held by it free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, or any other
instrument or document executed or furnished pursuant thereto; and (iii) makes
no representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNEE. The Assignee
(a) confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements delivered on or before the date hereof
pursuant to Sections 5.01(k) and 7.01(a) thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (b) agrees that it will,
independently and without reliance upon the Administrative Agent, the Assignor
or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under the Credit Documents; (c) appoints and authorizes
the Administrative Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (d) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Documents are required to be performed by it as a Lender; and (e) if the
Assignee is organized under the laws of a jurisdiction outside the United
States, confirms to the Borrower (and is providing to the Administrative Agent
and the Borrower Internal Revenue Service form 1001 or 4224, as appropriate, or
any successor form prescribed by the Internal Revenue Service) that (i) the
Assignee is entitled to benefits under an income tax treaty to which the United
States is a party that reduces the rate of withholding tax on payments under the
Credit Agreement or (ii) that the income receivable pursuant to the Credit
Agreement is effectively connected with the conduct of a trade or business in
the United States.
Section 5. GOVERNING LAW. THE RIGHTS AND DUTIES OF THE PARTIES UNDER
THIS ASSIGNMENT AND ACCEPTANCE SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS
LAW SECTION 5-1401, BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Annex I hereto.
2
Annex 1 to Assignment and Acceptance
------------------------------------
Date of Assignment:
-------------------------------------------------------------
Legal Name of Assignor:
---------------------------------------------------------
Legal Name of Assignee:
---------------------------------------------------------
Assignee's Address for Notices:
-------------------------------------------------
-------------------------------------------------
Transfer Effective Date of Assignment
(may not be fewer than two Business
Days after the Date of Assignment):
---------------------------------------------
---------------------------------------------
Percentage Assigned of
Commitment (set forth, to
at least 8 decimals, as a
percentage of the Total
Principal Amount Assigned Commitment)
Commitment Assigned: $
%
Revolving Credit Loans $
The terms set forth above
are hereby agreed to: Consent given:
, as Assignor SOUTHWEST GAS CORPORATION
--------------------------
By: By:
------------------------------ ------------------------------
Name: Name:
Title: Title:
, as Assignee
--------------------------
By:
------------------------------
Name:
Title:
Annex 2 to Assignment and Acceptance
LEGAL NAME OF ASSIGNEE TO APPEAR IN DOCUMENTATION:
--------------------------------------------------
GENERAL INFORMATION
-------------------
ABR LENDING OFFICE:
Institution Name:
---------------------------------------------------------------
Street Address:
-----------------------------------------------------------------
City, State, Country, Zip Code:
-------------------------------------------------
EURODOLLAR LENDING OFFICE:
Institution Name:
---------------------------------------------------------------
Street Address:
-----------------------------------------------------------------
City, State, Country, Zip Code:
-------------------------------------------------
CONTACTS/NOTIFICATION METHODS CREDIT CONTACTS:
Primary Contact:
----------------------------------------------------------------
Street Address:
-----------------------------------------------------------------
City, State, Country, Zip Code: Phone Number:
-----------------------------------
FAX Number:
---------------------------------------------------------------------
Backup Contact:
-----------------------------------------------------------------
Street Address: City, State, Country, Zip Code:
---------------------------------
Phone Number:
-------------------------------------------------------------------
FAX Number:
---------------------------------------------------------------------
E-Mail Address:
-----------------------------------------------------------------
ADMINISTRATIVE CONTACTS -- BORROWINGS, PAYDOWNS, INTEREST, FEES, ETC.
Contact:
------------------------------------------------------------------------
Street Address:
-----------------------------------------------------------------
City, State, Country, Zip Code: Phone Number:
-----------------------------------
FAX Number:
---------------------------------------------------------------------
PAYMENT INSTRUCTIONS
Name of bank where funds are to be transferred:
---------------------------------
Routing Transit/ABA number of bank where funds are to be
transferred:
--------------------------------------------------------------------
Name of Account, if applicable:
-------------------------------------------------
Account Number:
-----------------------------------------------------------------
Additional Information:
---------------------------------------------------------
--------------------------------------------------------------------------------
TAX WITHHOLDING
---------------
Non Resident Alien Y* N
------- -----
* Form 4224 Enclosed
Tax ID Number
-------------
MAILINGS
Please specify who should receive financial information:
Name:
---------------------------------------------------------------------------
Street Address:
-----------------------------------------------------------------
City, State, Country, Zip Code:
-------------------------------------------------
Exhibit F
Form of Confidentiality Agreement
---------------------------------
[Date]
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: Multi-Year Revolving Credit Agreement, dated as of May 10, 2002,
among Southwest Gas Corporation, the Lenders from time
to time parties thereto and The Bank of New York,
as Administrative Agent
------------------------------------------------------
Dear :
---------------
As a Lender party to the above-referenced credit agreement (the "Credit
Agreement"), we have agreed with Southwest Gas Corporation (the "Borrower"),
pursuant to Section 11.05 of the Credit Agreement, to use our best efforts to
keep confidential, except as otherwise provided therein, all Confidential
Information (as defined in the Credit Agreement) regarding the Borrower and its
Subsidiaries.
As provided in such Section 11.05, we are permitted to provide you, as
a prospective participant or assignee, with certain of such Confidential
Information subject to the execution and delivery by you, prior to receiving
such non-public information, of a Confidentiality Agreement in this form. Such
information will not be made available to you until your execution and return to
us of this Confidentiality Agreement.
Accordingly, in consideration of the foregoing, you agree (on behalf of
yourself and each of your affiliates, directors, officers, employees and
representatives) that (A) such information will not be used by you except in
connection with a proposed [participation] [assignment] to you pursuant to the
Credit Agreement and (B) you shall use your best efforts in accordance with your
customary procedures for handling confidential information and in accordance
with safe and sound banking practices, to keep such information confidential;
provided that nothing herein shall limit the disclosure of any such information
(i) to the extent required by statute, rule, regulation or judicial process,
(ii) to your counsel or to counsel for any of the Lenders or the Administrative
Agent, (iii) to bank examiners, auditors or accountants, (iv) to the
Administrative Agent or any other Lender, and (v) in connection with any
litigation relating to enforcement of the Credit Documents; provided further,
that, unless specifically prohibited by applicable law or court order, you
agree, prior to disclosure thereof, to notify the Borrower of any request for
disclosure of any such non-public information (x) by any Governmental Authority
or representative thereof (other than any such request in connection with an
examination of your financial condition by such Governmental Authority) or (y)
pursuant to legal process.
Please indicate your agreement to the foregoing by signing at the place provided
below the enclosed copy of this Confidentiality Agreement.
Very truly yours,
[Insert Name of Lender]
By:
--------------------------------------
Name:
Title:
Agreed as of the date of this letter.
[Insert name of prospective
participant or assignee]
By:
----------------------------------
Exhibit G
Form of Increase Request
[Date]
The Bank of New York
Agency Function Administration
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Increase Request for Revolving Credit Loans
-------------------------------------------
Ladies and Gentlemen:
Reference is made to the Multi-Year Revolving Credit Agreement, dated
as of May 10, 2002 (as amended, modified or supplemented from time to time, the
"CREDIT AGREEMENT"), among Southwest Gas Corporation (the "BORROWER"), the
Lenders from time to time parties thereto and The Bank of New York, as
Administrative Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit Agreement.
The Borrower hereby gives you notice, pursuant to Section 2.03(c) of
the Credit Agreement, that it requests an increase in the Commitments, and in
that connection sets forth below (A) the Lender(s) and the amount of the
proposed increase of the Commitment of such Lender(s) and (B) the proposed New
Lender(s) and the proposed amount of the Commitment of such New Lender(s):
(A) Lender Increase in Commitment
------ ----------------------
(B) New Lender New Commitment
---------- --------------
Very truly yours,
SOUTHWEST GAS CORPORATION
By:
--------------------------
Title: