EXHIBIT 10.8(a)
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
among
ATMOS ENERGY CORPORATION
as Borrower,
THE LENDERS IDENTIFIED HEREIN,
AND
BANK OF AMERICA, N.A.,
as Administrative Agent,
AND
BANK ONE, NA
and
SOCIETE GENERALE,
as Co-Syndication Agents
AND
FIRST UNION NATIONAL BANK
and
FLEET NATIONAL BANK,
as Co-Documentation Agents
DATED AS OF AUGUST 2, 2001
BANC OF AMERICA SECURITIES LLC
as Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS......................................................................1
1.1 Definitions.....................................................................................1
1.2 Computation of Time Periods....................................................................15
1.3 Accounting Terms...............................................................................15
1.4 Time...........................................................................................16
SECTION 2. LOANS................................................................................................16
2.1 Revolving Loan Commitment......................................................................16
2.2 Method of Borrowing for Revolving Loans........................................................18
2.3 Funding of Revolving Loans.....................................................................19
2.4 Continuations and Conversions..................................................................19
2.5 Minimum Amounts................................................................................20
2.6 Reductions of Revolving Loan Commitment........................................................20
2.7 Notes..........................................................................................20
SECTION 3. PAYMENTS.............................................................................................22
3.1 Interest.......................................................................................22
3.2 Prepayments....................................................................................22
3.3 Payment in full at Maturity....................................................................23
3.4 Fees...........................................................................................23
3.5 Place and Manner of Payments...................................................................24
3.6 Pro Rata Treatment.............................................................................24
3.7 Computations of Interest and Fees..............................................................24
3.8 Sharing of Payments............................................................................25
3.9 Evidence of Debt...............................................................................26
SECTION 4. ADDITIONAL PROVISIONS REGARDING LOANS................................................................27
4.1 Eurodollar Loan Provisions.....................................................................27
4.2 Capital Adequacy...............................................................................28
4.3 Compensation...................................................................................29
4.4 Taxes..........................................................................................29
SECTION 5. CONDITIONS PRECEDENT.................................................................................32
5.1 Closing Conditions.............................................................................32
5.2 Conditions to Loans............................................................................33
SECTION 6. REPRESENTATIONS AND WARRANTIES.......................................................................34
6.1 Organization and Good Standing.................................................................34
6.2 Due Authorization..............................................................................34
6.3 No Conflicts...................................................................................34
6.4 Consents.......................................................................................35
6.5 Enforceable Obligations........................................................................35
6.6 Financial Condition............................................................................35
6.7 No Material Change.............................................................................35
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6.8 No Default.....................................................................................36
6.9 Litigation.....................................................................................36
6.10 Taxes..........................................................................................36
6.11 Compliance with Law............................................................................36
6.12 Material Agreements............................................................................36
6.13 ERISA..........................................................................................36
6.14 Use of Proceeds................................................................................38
6.15 Government Regulation..........................................................................38
6.16 Disclosure.....................................................................................38
6.17 Environmental Matters..........................................................................39
6.18 Insurance......................................................................................39
6.19 Franchises, Licenses, Etc......................................................................39
6.20 Secured Indebtedness...........................................................................39
6.21 Subsidiaries...................................................................................39
SECTION 7. AFFIRMATIVE COVENANTS................................................................................39
7.1 Information Covenants..........................................................................40
7.2 Debt to Capitalization Ratio...................................................................42
7.3 Preservation of Existence, Franchises and Assets...............................................42
7.4 Books and Records..............................................................................42
7.5 Compliance with Law............................................................................42
7.6 Payment of Taxes and Other Indebtedness........................................................42
7.7 Insurance......................................................................................43
7.8 Use of Proceeds................................................................................43
7.9 Audits/Inspections.............................................................................43
SECTION 8. NEGATIVE COVENANTS...................................................................................43
8.1 Nature of Business.............................................................................43
8.2 Consolidation and Merger.......................................................................43
8.3 Sale or Lease of Assets........................................................................44
8.4 Arm's-Length Transactions......................................................................44
8.5 Fiscal Year; Organizational Documents..........................................................44
8.6 Liens..........................................................................................44
SECTION 9. EVENTS OF DEFAULT....................................................................................45
9.1 Events of Default..............................................................................45
9.2 Acceleration; Remedies.........................................................................48
9.3 Allocation of Payments After Event of Default..................................................49
SECTION 10. AGENCY PROVISIONS....................................................................................50
10.1 Appointment....................................................................................50
10.2 Delegation of Duties...........................................................................50
10.3 Exculpatory Provisions.........................................................................50
10.4 Reliance on Communications.....................................................................51
10.5 Notice of Default..............................................................................51
10.6 Non-Reliance on Administrative Agent and Other Lenders.........................................52
10.7 Indemnification................................................................................52
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10.8 Administrative Agent in Its Individual Capacity................................................53
10.9 Successor Agent................................................................................53
SECTION 11. MISCELLANEOUS.......................................................................................53
11.1 Notices........................................................................................53
11.2 Right of Set-Off...............................................................................54
11.3 Benefit of Agreement...........................................................................54
11.4 No Waiver; Remedies Cumulative.................................................................57
11.5 Payment of Expenses, etc.......................................................................57
11.6 Amendments, Waivers and Consents...............................................................58
11.7 Counterparts/Telecopy..........................................................................59
11.8 Headings.......................................................................................59
11.9 Defaulting Lender..............................................................................59
11.10 Survival of Indemnification and Representations and Warranties.................................59
11.11 Governing Law; Venue...........................................................................59
11.12 Waiver of Jury Trial...........................................................................60
11.13 Severability...................................................................................60
11.14 Further Assurances.............................................................................60
11.15 Entirety.......................................................................................60
11.16 Binding Effect; Continuing Agreement...........................................................61
SCHEDULES
Schedule 1.1 Commitment Percentages
Schedule 6.20 Secured Indebtedness
Schedule 6.21 Subsidiaries
Schedule 11.1 Notices
EXHIBITS
Exhibit 2.1(b) Form of Competitive Bid Request
Exhibit 2.2 Form of Notice of Borrowing
Exhibit 2.4 Form of Notice of Continuation/Conversion
Exhibit 2.7(a) Form of Revolving Loan Note
Exhibit 2.7(b) Form of Competitive Bid Loan Note
Exhibit 7.1(c) Form of Officer's Certificate
Exhibit 11.3(b) Form of Assignment Agreement
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AMENDED AND RESTATED
REVOLVING
CREDIT AGREEMENT
THIS AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT (this "Credit
Agreement"), dated as of August 2, 2001, is entered into among
ATMOS ENERGY
CORPORATION, a Texas and Virginia corporation (the "Borrower"), the Lenders (as
defined herein) and BANK OF AMERICA, N.A. as agent for the Lenders (in such
capacity, the "Administrative Agent").
RECITALS
WHEREAS, the Borrower, the Administrative Agent and certain Lenders are
party to the Existing
Revolving Credit Agreement (as defined below); and
WHEREAS, the Borrower has requested, and the Lenders and the
Administrative Agent have agreed, to amend and restate the terms of the Existing
Revolving Credit Agreement as provided herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1.
DEFINITIONS AND ACCOUNTING TERMS
1.1 DEFINITIONS.
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular.
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the
Applicable Percentage for Eurodollar Loans.
"Administrative Agent" means Bank of America, N.A. and any
successors and assigns in such capacity.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by or under
direct or indirect common control with such Person. A Person shall be
deemed to control another Person if such Person possesses, directly or
indirectly, the power (a) to vote 10% or more of the securities having
ordinary voting power for the election of directors of such other
Person or (b) to direct or cause direction of the management and
policies of such other Person, whether through the ownership of voting
securities, by contract or otherwise.
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"Agency Services Address" means ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ or such other address as the Administrative Agent may designate
in writing.
"Applicable Percentage" means with respect to Eurodollar Loans
and Unused Fees (subject to the terms set forth below), the appropriate
applicable percentage corresponding to the long term, senior,
unsecured, non-credit enhanced debt rating of the Borrower in effect
from time to time as described below:
Long Term, Senior, Unsecured, Non-Credit Applicable Percentage Applicable Percentage for
Enhanced Debt Rating of Borrower for Eurodollar Loans Unused Fees
---------------------------------------- --------------------- -------------------------
I. greater than or = to A from S&P .400% .085%
or
greater than or equal to A2 from ▇▇▇▇▇'▇
II. less than A but greater than or equal to A- from S&P .500% .100%
or
less than A2 but greater than or equal to A3 from ▇▇▇▇▇'▇
III. less than A- but greater than or equal to BBB+ from S&P .625% .125%
or
less than A3 but greater than or equal to Baa1 from ▇▇▇▇▇'▇
IV. less than BBB+ but greater than or equal to BBB from S&P .750% .150%
or
less than Baa1 but greater than or equal to Baa2 from ▇▇▇▇▇'▇
V. less than BBB but greater than or equal to BBB- from S&P 1.000% .200%
or
less than Baa2 but greater than or equal to Baa3 from ▇▇▇▇▇'▇
VI. less than BBB- from S&P 1.375% .300%
Or
less than Baa3 from ▇▇▇▇▇'▇
or
unrated by S&P and ▇▇▇▇▇'▇
Notwithstanding the above, (a) the Applicable Percentage on
the Effective Date shall be based on Pricing Level II set forth above
and shall remain at Pricing Level II until S&P or ▇▇▇▇▇'▇ has changed
its rating with respect to the Borrower and (b) if at any time there is
a split in ratings between S&P and ▇▇▇▇▇'▇ of one level, the applicable
percentage shall be determined by the higher of the two ratings and if
at any time there is a split between S&P and ▇▇▇▇▇'▇ of two or more
levels, the applicable level shall be one level below (i.e., one level
higher pricing than) the higher of the S&P or ▇▇▇▇▇'▇ rating.
The Borrower shall notify the Administrative Agent in writing
at the Agency Services Address immediately upon any change in the long
term, senior, unsecured non-credit enhanced debt rating of the
Borrower.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
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"Base Rate" means, for any day, the rate per annum equal to
the greater of (a) the Federal Funds Rate in effect on such day plus
1/2 of 1% (.50%) or (b) the Prime Rate in effect on such day. If for
any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is
unable after due inquiry to ascertain the Federal Funds Rate for any
reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms hereof,
the Base Rate shall be determined without regard to clause (a) of the
first sentence of this definition until the circumstances giving rise
to such inability no longer exist. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be effective
on the effective date of such change in the Prime Rate or the Federal
Funds Rate, respectively.
"Base Rate Loan" means a Loan which bears interest based on
the Base Rate.
"Borrower" means
Atmos Energy Corporation, a Texas and
Virginia corporation.
"Borrower Obligations" means, without duplication, all of the
obligations of the Borrower to the Lenders and the Administrative
Agent, whenever arising, under this Credit Agreement, the Notes or any
of the other Credit Documents.
"Business Day" means any day other than a Saturday, a Sunday,
a legal holiday or a day on which banking institutions are authorized
or required by law or other governmental action to close in Dallas,
Texas; provided that in the case of Eurodollar Loans, such day is also
a day on which dealings between banks are carried on in U.S. dollar
deposits in the London interbank market.
"Capital Stock" means (a) in the case of a corporation, all
classes of capital stock of such corporation, (b) in the case of a
partnership, partnership interests (whether general or limited), (c) in
the case of a limited liability company, membership interests and (d)
any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Change of Control" means either of the following events:
(a) any "person" or "group" (within the meaning of
Section 13(d) or 14(d) of the Exchange Act) has become,
directly or indirectly, the "beneficial owner" (as defined in
Rules 13d-3 (other than subsection (d) thereof) and 13d-5
under the Exchange Act), by way of merger, consolidation or
otherwise of 40% or more of the voting power of the Borrower
on a fully-diluted basis, after giving effect to the
conversion and exercise of all outstanding warrants, options
and other securities of the Borrower convertible into or
exercisable for voting stock of the Borrower (whether or not
such securities are then currently convertible or
exercisable); or
(b) during any period of two consecutive calendar
years, individuals who at the beginning of such period
constituted the board of directors of the
3
Borrower together with any new members of such board of
directors whose elections by such board or board of directors
or whose nomination for election by the stockholders of the
Borrower was approved by a vote of a majority of the members
of such board of directors then still in office who either
were directors at the beginning of such period or whose
election or nomination for election was previously so approved
cease for any reason to constitute a majority of the directors
of the Borrower then in office.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the rules and regulations promulgated
thereunder.
"Commitment Percentage" means, for each Lender, the percentage
identified as its Commitment Percentage opposite such Lender's name on
Schedule 1.1, as such percentage may be modified by assignment in
accordance with the terms of this Credit Agreement.
"Commitments" means, collectively, each Lender's share of the
Revolving Loan Commitment based upon such Lender's Commitment
Percentage, as reflected on Schedule 1.1.
"Competitive Bid" means an offer by a Lender to make a
Competitive Bid Loan pursuant to the terms of Section 2.1(b).
"Competitive Bid Fee" means a fee of $1,000 payable by the
Borrower to the Administrative Agent in connection with a Competitive
Bid Request pursuant to Section 2.1(b).
"Competitive Bid Loan" means a loan made by a Lender in its
discretion pursuant to the provisions of Section 2.1(b).
"Competitive Bid Loan Notes" means the promissory notes of the
Borrower in favor of each Lender evidencing the Competitive Bid Loans
and substantially in the form of Exhibit 2.7(b), as such promissory
notes may be amended, modified, supplemented or replaced from time to
time.
"Competitive Bid Rate" means, as to any Competitive Bid made
by a Lender in accordance with the provisions of Section 2.1(b), the
rate of interest offered by the Lender making the Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in the form of Exhibit 2.1(b).
"Consolidated Capitalization" means, without duplication, the
sum of (a) all of the shareholders' equity or net worth of the Borrower
and its Subsidiaries on a consolidated
4
basis, as determined in accordance with GAAP plus (b) the aggregate
principal amount of Preferred Securities plus (c) the aggregate
Minority Interests in Subsidiaries plus (d) Consolidated Funded Debt.
"Consolidated Funded Debt" means, without duplication, the sum
of (a) all indebtedness of the Borrower and its Subsidiaries for
borrowed money, (b) all purchase money indebtedness of the Borrower and
its Subsidiaries, (c) the principal portion of all obligations of the
Borrower and its Subsidiaries under capital leases, (d) all commercial
letters of credit and the maximum amount of all performance and standby
letters of credit issued or bankers' acceptance facilities created for
the account of the Borrower or one of its Subsidiaries, including,
without duplication, all unreimbursed draws thereunder, (e) all
Guaranty Obligations of the Borrower and its Subsidiaries with respect
to funded indebtedness of another Person; provided that neither the
indebtedness of ▇▇▇▇▇▇▇▇ Marketing, LLC ("▇▇▇▇▇▇▇▇") incurred in
connection with the purchase of gas by ▇▇▇▇▇▇▇▇ for resale to the
Borrower nor the guaranty by the Borrower or one of its Subsidiaries of
such indebtedness shall be included in this definition if such
indebtedness has been outstanding for less than two months from the
date of its incurrence by ▇▇▇▇▇▇▇▇, (f) all indebtedness of another
entity secured by a Lien on any property of the Borrower or any of its
Subsidiaries whether or not such indebtedness has been assumed by the
Borrower or any of its Subsidiaries, (g) all indebtedness of any
partnership or unincorporated joint venture to the extent the Borrower
or one of its Subsidiaries is legally obligated with respect thereto,
net of any assets of such partnership or joint venture, (h) all
obligations of the Borrower and its Subsidiaries to advance or provide
funds or other support for the payment or purchase of funded
indebtedness (including, without limitation, maintenance agreements,
comfort letters or similar agreements or arrangements) (other than as
may be given in respect of ▇▇▇▇▇▇▇▇) and (i) the principal balance
outstanding under any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product
of the Borrower or one of its Material Subsidiaries where such
transaction is considered borrowed money indebtedness for tax purposes
but is classified as an operating lease in accordance with GAAP.
"Consolidated Net Property" means the Fixed Assets less,
without duplication, the amount of accumulated depreciation and
amortization attributable thereto.
"Credit Documents" means this Credit Agreement, the Notes, any
Notice of Borrowing and all other related agreements and documents
issued or delivered hereunder or thereunder or pursuant hereto or
thereto.
"Debt to Capitalization Ratio" means the ratio of (a)
Consolidated Funded Debt to (b) Consolidated Capitalization.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, at
such time (a) has failed
5
to make a Loan required pursuant to the term of this Credit Agreement,
(b) has failed to pay to the Administrative Agent or any Lender an
amount owed by such Lender pursuant to the terms of this Credit
Agreement or (c) has been deemed insolvent or has become subject to a
bankruptcy or insolvency proceeding or to a receiver, trustee or
similar official.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Effective Date" means the date on which all of the conditions
set forth in Section 5.1 shall have been fulfilled (or waived in the
sole discretion of the Lenders).
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; and (c) any other Person approved by the Administrative Agent
and the Borrower (such approval not to be unreasonably withheld or
delayed); provided that (i) the Borrower's consent is not required
during the existence and continuation of a Default or an Event of
Default, (ii) approval by the Borrower shall be deemed given if no
objection is received by the Administrative Agent from the Borrower
within five Business Days after notice of such proposed assignment has
been received by the Borrower; and (iii) neither the Borrower nor an
Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Environmental Laws" means any current or future legal
requirement of any Governmental Authority pertaining to (a) the
protection of health, safety, and the indoor or outdoor environment,
(b) the conservation, management, or use of natural resources and
wildlife, (c) the protection or use of surface water and groundwater or
(d) the management, manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, release, threatened
release, abatement, removal, remediation or handling of, or exposure
to, any hazardous or toxic substance or material or (e) pollution
(including any release to land surface water and groundwater) and
includes, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and Hazardous and Solid Waste Amendment of 1984,
42 USC 6901 et seq., Federal Water Pollution Control Act, as amended by
the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act of
1966, as amended, 42 USC 7401 et seq., Toxic Substances Control Act of
1976, 15 USC 2601 et seq., Hazardous Materials Transportation Act, 49
USC App. 1801 et seq., Occupational Safety and Health Act of 1970, as
amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et
seq., Emergency Planning and Community Right-to-Know Act of 1986, 42
USC 11001 et seq., National Environmental Policy Act of 1969, 42 USC
4321 et seq., Safe Drinking Water Act of 1974, as amended, 42 USC
300(f) et seq., any analogous implementing or successor law, and any
amendment, rule, regulation, order, or directive issued thereunder.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
6
"ERISA Affiliate" means an entity, whether or not
incorporated, which is under common control with the Borrower or any of
its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA, or
is a member of a group which includes the Borrower or any of its
Subsidiaries and which is treated as a single employer under Sections
414(b), (c), (m), or (o) of the Code.
"Eurodollar Loan" means a Loan bearing interest at the
Adjusted Eurodollar Rate.
"Eurodollar Rate" means with respect to any Eurodollar Loan,
for the Interest Period applicable thereto, a rate per annum determined
pursuant to the following formula:
"Eurodollar Rate" = London Interbank Offered Rate
-------------------------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means, for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D, as the maximum reserve requirement (including,
without limitation, any basic, supplemental, emergency, special, or
marginal reserves) applicable with respect to Eurocurrency liabilities,
as that term is defined in Regulation D (or against any other category
of liabilities that includes deposits by reference to which the
interest rate of Eurodollar Loans is determined), whether or not a
Lender has any Eurocurrency liabilities subject to such reserve
requirement at that time. Eurodollar Loans shall be deemed to
constitute Eurocurrency liabilities and as such shall be deemed subject
to reserve requirements without benefits of credits for proration,
exceptions or offsets that may be available from time to time to a
Lender. The Eurodollar Rate shall be adjusted automatically on and as
of the effective date of any change in the Eurodollar Reserve
Percentage.
"Event of Default" has the meaning specified in Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Existing
Revolving Credit Agreement" means that certain
credit agreement, dated as of August 3, 2000, among the Borrower, the
lenders identified therein and Bank of America, N.A., as administrative
agent, as amended, modified, supplemented or replaced from time to
time.
"Existing Term Credit Agreement" means that certain Term
Credit Agreement, dated as of August 3, 2000, among the Borrower, the
lenders identified therein and Bank of America, N.A., as administrative
agent, as amended, modified, supplemented or replaced from time to
time.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal
7
funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal
Reserve Bank of
New York on the Business Day next succeeding such day;
provided that (a) if such day is not a Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next
preceding Business Day and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such day shall
be the average rate quoted to the Administrative Agent on such day on
such transactions as determined by the Administrative Agent.
"Fee Letter" means that certain letter agreement, dated as of
June 7, 2001, between the Administrative Agent and the Borrower, as
amended, modified, supplemented or replaced from time to time.
"Financial Officer" means any one of the chief financial
officer, the controller or the treasurer of the Borrower.
"Fixed Assets" means the assets of the Borrower and its
Subsidiaries constituting "net property, plant and equipment" on the
consolidated balance sheet of the Borrower and its Subsidiaries.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to Section 1.3.
"Governmental Authority" means any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guaranty Obligations" means, with respect to any Person,
without duplication, any obligations (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing any indebtedness for borrowed money of any
other Person in any manner, whether direct or indirect, and including
without limitation any obligation, whether or not contingent, (a) to
purchase any such indebtedness or other obligation or any property
constituting security therefor, (b) to lease or purchase property,
securities or services primarily for the purpose of assuring the owner
of such indebtedness or (c) to otherwise assure or hold harmless the
owner of such indebtedness or obligation against loss in respect
thereof. The amount of any Guaranty Obligation hereunder shall (subject
to any limitations set forth therein) be deemed to be an amount equal
to the outstanding principal amount of the indebtedness in respect of
which such Guaranty Obligation is made.
"Interest Payment Date" means (a) as to Base Rate Loans, the
last day of each fiscal quarter of the Borrower and the Maturity Date,
(b) as to Eurodollar Loans, the last day of each applicable Interest
Period and the Maturity Date and, in addition, where the applicable
Interest Period for a Eurodollar Loan is greater than three months,
then also on the last day of each three-month period during such
Interest Period and (c) as to Competitive Bid Loans, the last day of
each applicable Interest Period and the Maturity Date.
8
"Interest Period" means (a) as to Eurodollar Loans, a period
of one, two, three or six months' duration, as the Borrower may elect,
commencing, in each case, on the date of the borrowing (including
continuations and conversions of Eurodollar Loans) and (b) with respect
to Competitive Bid Loans, a period beginning on the date the
Competitive Bid Loan is made and ending on a date specified in the
applicable Competitive Bid Request pursuant to which the offer to make
such Competitive Bid Loan was extended, which shall not be less than 30
days nor more than 90 days in duration; provided, however, (a) if any
Interest Period would end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day
(except that where the next succeeding Business Day falls in the next
succeeding calendar month, then such Interest Period shall end on the
next preceding Business Day), (b) no Interest Period shall extend
beyond the Maturity Date and (c) with respect to Eurodollar Loans,
where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which the
Interest Period is to end, such Interest Period shall end on the last
Business Day of such calendar month.
"Lender" means any of the Persons identified as a "Lender" on
the signature pages hereto, and any Eligible Assignee which may become
a Lender by way of assignment in accordance with the terms hereof,
together with their successors and permitted assigns.
"LGS Acquisition" means the acquisition by the Borrower of
certain assets pursuant to the Purchase and Sale Agreement.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any
agreement to give any of the foregoing).
"Loans" means the Revolving Loans and the Competitive Bid
Loans.
"London Interbank Offered Rate" means, with respect to any
Eurodollar Loan for the Interest Period applicable thereto, the rate of
interest per annum (rounded upwards, if necessary, to the nearest 1/100
of 1%) appearing on Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in Dollars at approximately
11:00 A.M. (London time) two Business Days prior to the first day of
such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Telerate Page
3750, the applicable rate shall be the arithmetic mean of all such
rates. If, for any reason, such rate is not available, the term "London
Interbank Offered Rate" shall mean, with respect to any Eurodollar Loan
for the Interest Period applicable thereto, the rate of interest per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Reuters Screen LIBO Page as the London interbank offered
rate for deposits in Dollars at approximately 11:00 A.M. (London time)
two Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period; provided, however, if more
than one rate is specified on Reuters Screen LIBO Page, the applicable
rate shall be the arithmetic mean of all such rates.
9
"Material Adverse Effect" means a material adverse effect on
(a) the operations, business, assets, liabilities (actual or
contingent), financial condition or prospects of the Borrower and its
Subsidiaries, taken as a whole (taking into account the value of any
indemnifications in favor of the Borrower pursuant to the Purchase and
Sale Agreement), (b) the ability of the Borrower to perform its
obligations under this Credit Agreement or (c) the validity or
enforceability of this Credit Agreement, any of the other Credit
Documents, or the rights and remedies of the Lenders hereunder or
thereunder.
"Material Subsidiary" means, at any date, a Subsidiary of the
Borrower whose aggregate assets properly included under the category
"property, plant and equipment" on the balance sheet of such
Subsidiary, less the amount of depreciation and amortization
attributable thereto, constitutes at least 10% of Consolidated Net
Property as of such date; provided that if at any time the Borrower has
Subsidiaries that are not Material Subsidiaries whose total aggregate
assets under the category "property, plant and equipment" on the
balance sheet of such Subsidiaries, less the amount of depreciation and
amortization attributable thereto, constitutes more than 20% of
Consolidated Net Property as of such date the Borrower shall designate
one or more of such Subsidiaries as Material Subsidiaries for the
purposes of this Credit Agreement in order that all Subsidiaries of the
Borrower, other than Material Subsidiaries, own not more than 20% of
Consolidated Net Property.
"Maturity Date" means August 1, 2002.
"Minority Interests" means interests owned by Persons (other
than the Borrower or a Subsidiary of the Borrower) in a Subsidiary of
the Borrower in which less than 100% of all classes of the voting
securities are owned by the Borrower or its Subsidiaries.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any
successor or assignee of the business of such company in the business
of rating securities.
"Multiemployer Plan" means a Plan covered by Title IV of ERISA
which is a multiemployer plan as defined in Section 3(37) or 4001(a)(3)
of ERISA.
"Multiple Employer Plan" means a Plan covered by Title IV of
ERISA, other than a Multiemployer Plan, which the Borrower or any ERISA
Affiliate and at least one employer other than the Borrower or any
ERISA Affiliate are contributing sponsors.
"1957 Indenture" means, collectively, that certain Indenture
of Mortgage, dated as of March 1, 1957, granted by Greeley Gas Company
(predecessor in interest to the Borrower) to The Central Bank and Trust
Company, as original Trustee, and all Supplemental Indentures thereto.
"1959 Indenture" means, collectively, that certain Indenture
of Mortgage, dated as of July 15, 1959, granted by United Cities Gas
Company (predecessor in interest to the Borrower) to City National Bank
and Trust Company of Chicago and R. ▇▇▇▇▇▇ ▇▇▇▇▇▇, as the original
Trustees, and all Supplemental Indentures thereto, including, without
limitation,
10
that certain First Supplemental Indenture, dated as of November 1,
1960; that certain Second Supplemental Indenture, dated as of June 1,
1962; that certain Third Supplemental Indenture, dated as of February
1, 1963; that certain Fourth Supplemental Indenture, dated as of June
15, 1963; that certain Fifth Supplemental Indenture, dated as of
November 15, 1964; that certain Sixth Supplemental Indenture, dated as
of March 15, 1968; that certain Seventh Supplemental Indenture, dated
as of August 1, 1970; that certain Eighth Supplemental Indenture, dated
as of September 1, 1972; that certain Ninth Supplemental Indenture,
dated as of January 1, 1974; that certain Tenth Supplemental Indenture,
dated as of July 1, 1976; that certain Eleventh Supplemental Indenture,
dated as of December 1, 1976; that certain Twelfth Supplemental
Indenture, dated as of April 1, 1981; that certain Thirteenth
Supplemental Indenture, dated as of May 1, 1982; that certain
Fourteenth Supplemental Indenture, dated as of March 1, 1987; that
certain Fifteenth Supplemental Indenture, dated as of October 1, 1987;
that certain Sixteenth Supplemental Indenture, dated as of December 1,
1989; that certain Seventeenth Supplemental Indenture, dated as of
April 1, 1990; that certain Eighteenth Supplemental Indenture, dated as
of June 1, 1991; that certain Nineteenth Supplemental Indenture, dated
as of May 1, 1992; that certain Twentieth Supplemental Indenture, dated
as of December 1, 1992; that certain Twenty-First Supplemental
Indenture, dated as of February 5, 1997; and that certain Twenty-Second
Supplemental Indenture, dated as of July 29, 1997.
"1987 Note Purchase Agreements" means, collectively, those
certain Note Purchase Agreements, dated as of December 21, 1987, by and
between Energas Company (predecessor in interest to the Borrower) and
(a) ▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance Company, (b) ▇▇▇▇ ▇▇▇▇▇▇▇
Charitable Trust I and (c) Mellon Bank, N.A., Trustee under the Master
Trust of AT&T Corporation, and all Amendments thereto, including,
without limitation, that certain Amendment to Note Purchase Agreements,
amending each of the above-referenced Note Purchase Agreements, each
dated as of (i) October 11, 1989, (ii) November 12, 1991, (iii)
December 22, 1993, (iv) December 20, 1994 and July 29, 1997.
"1989 Note Purchase Agreement" means, collectively, that
certain Note Purchase Agreement, dated as of October 11, 1989, by and
between the Borrower and ▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance Company,
and all Amendments thereto, including, without limitation, those
Amendments dated as of October 11, 1989, November 12, 1991, December
22, 1993, December 20, 1994, and July 29, 1997.
"1991 Note Purchase Agreement" means, collectively, that
certain Note Purchase Agreement, dated as of August 29, 1991, by and
between the Borrower and The Variable Annuity Life Insurance Company,
and all Amendments thereto, including, without limitation, those
Amendments dated as of November 26, 1991, December 22, 1993, and July
29, 1997.
"1992 Note Purchase Agreement" means, collectively, that
certain Note Purchase Agreement, dated as of August 31, 1992, by and
between the Borrower and The Variable
11
Annuity Life Insurance Company, and all Amendments thereto, including,
without limitation, those Amendments dated as of December 22, 1993, and
July 29, 1997.
"1994 Note Purchase Agreement" means, collectively, that
certain Note Purchase Agreement dated November 14, 1994, by and among
the Borrower and
New York Life Insurance Company,
New York Life
Insurance and Annuity Corporation, The Variable Annuity Life Insurance
Company, American General Life Insurance Company, and Merit Life
Insurance Company, and all Amendments thereto; including, without
limitation, that Amendment dated as of July 29, 1997.
"1998 Indenture" means, collectively, that certain Indenture,
dated as of July 15, 1998, granted by the Borrower to US Bank Trust
National Association, as Trustee, and all Supplemental Indentures
thereto.
"Notes" means the Revolving Loan Notes and the Competitive Bid
Loan Notes.
"Notice of Borrowing" means a request by the Borrower for a
Revolving Loan in the form of Exhibit 2.2.
"Notice of Continuation/Conversion" means a request by the
Borrower for the continuation or conversion of a Revolving Loan in the
form of Exhibit 2.4.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereto.
"Person" means any individual, partnership, joint venture,
firm, corporation, association, trust, limited liability company or
other enterprise (whether or not incorporated), or any government or
political subdivision or any agency, department or instrumentality
thereof.
"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which the
Borrower or any ERISA Affiliate is (or, if such plan were terminated at
such time, would under Section 4069 of ERISA be deemed to be) an
"employer" within the meaning of Section 3(5) of ERISA.
"Preferred Securities" means, at any date, any equity
interests in the Borrower, in a Special Purpose Financing Subsidiary of
the Borrower or in any other Subsidiary of the Borrower (such as those
known as "TECONS", "MIPS" or "RHINOS"): (a) that are not (i) required
to be redeemed or redeemable at the option of the holder thereof prior
to the fifth anniversary of the Maturity Date or (ii) convertible into
or exchangeable for (unless solely at the option of the Borrower or
such Subsidiary of the Borrower) equity interests referred to in clause
(i) above or indebtedness having a scheduled maturity, or requiring any
repayments or prepayments of principal or any sinking fund or similar
payments in respect of principal or providing for any such repayment,
prepayment, sinking fund or other payment at the option of the holder
thereof prior to the fifth anniversary of the
12
Maturity Date and (b) as to which, at such date, the Borrower or such
Subsidiary of the Borrower has the right to defer the payment of all
dividends and other distributions in respect thereof for the period of
at least 19 consecutive quarters beginning at such date.
"Prime Rate" means the per annum rate of interest established
from time to time by Bank of America, N.A. at its principal office in
Charlotte, North Carolina (or such other principal office as
communicated by the Administrative Agent to the Borrower and the
Lenders) as its Prime Rate. Any change in the interest rate resulting
from a change in the Prime Rate shall become effective as of the
opening of business on the Business Day specified in the public
announcement of such change. The Prime Rate is a rate set by Bank of
America, N.A. based upon factors including Bank of America, N.A.'s
costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which
may be priced at, above or below such announced rate.
"Purchase and Sale Agreement" means that certain Purchase and
Sale Agreement, dated as of April 13, 2000, among Citizens Utilities
Company, LGS Natural Gas Company and the Borrower.
"Register" has the meaning set forth in Section 11.3(c).
"Regulation A, D, O, T, U, or X" means Regulation A, D, O, T,
U or X, respectively, of the Board of Governors of the Federal Reserve
System (or any successor body) as from time to time in effect, any
amendment thereto and any successor to all or a portion thereof.
"Reportable Event" means a "reportable event" as defined in
Section 4043 of ERISA with respect to which the notice requirements to
the PBGC have not been waived.
"Required Lenders" means Lenders whose aggregate Credit
Exposure (as hereinafter defined) constitutes more than 51% of the
aggregate Credit Exposure of all Lenders at such time; provided,
however, that if any Lender shall be a Defaulting Lender at such time
then there shall be excluded from the determination of Required Lenders
the aggregate principal amount of Credit Exposure of such Lender at
such time. For purposes of the preceding sentence, the term "Credit
Exposure" as applied to each Lender shall mean (a) at any time prior to
the termination of the Commitments, the Commitment Percentage of such
Lender multiplied times the Revolving Loan Commitment and (b) at any
time after the termination of the Commitments, the sum of the principal
balance of the outstanding Revolving Loans of such Lender.
"Revolving Loan" means a loan made by a Lender to the Borrower
pursuant to Section 2.1(a).
"Revolving Loan Commitment" means tHREE hundred Million
Dollars ($300,000,000) as such amount may be otherwise reduced in
accordance with Section 2.6 or increased in accordance with Section
2.8.
13
"Revolving Loan Notes" means the promissory notes of the
Borrower in favor of each Lender evidencing the Loans and substantially
in the form of Exhibit 2.7(a), as such promissory notes may be amended,
modified, supplemented or replaced from time to time.
"S&P" means Standard & Poor's Ratings Services, a division of
McGraw Hill, Inc., or any successor or assignee of the business of such
division in the business of rating securities.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan or a Multiple
Employer Plan.
"Special Purpose Financing Subsidiary" means a Subsidiary of
the Borrower that has no direct or indirect interest in the business of
the Borrower and its other Subsidiaries and was formed solely for the
purpose of issuing Preferred Securities.
"Subsidiary" means, as to any Person, (a) any corporation more
than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not, at the time, any
class or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at the time
owned by such Person directly or indirectly through Subsidiaries and
(b) any partnership, association, joint venture, limited liability
company or other entity in which such Person directly or indirectly
through Subsidiaries has more than 50% equity interest at any time.
"Termination Event" means (a) with respect to any Single
Employer Plan, the occurrence of a Reportable Event or the substantial
cessation of operations (within the meaning of Section 4062(e) of
ERISA), (b) the withdrawal of the Borrower or any ERISA Affiliate from
a Multiple Employer Plan during a plan year in which it was a
substantial employer (as such term is defined in Section 4001(a)(2) of
ERISA), or the termination of a Multiple Employer Plan, (c) the
distribution of a notice of intent to terminate or the actual
termination of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA,
(d) the institution of proceedings to terminate or the actual
termination of a Plan by the PBGC under Section 4042 of ERISA, (e) any
event or condition which might reasonably constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or (f) the complete or partial
withdrawal of the Borrower or any ERISA Affiliate from a Multiemployer
Plan.
"Total Assets" means all assets of the Borrower as shown on
its most recent quarterly consolidated balance sheet, as determined in
accordance with GAAP.
14
"2001 Indenture" means, collectively, that certain Indenture,
dated as of May 22, 2001, granted by the Borrower to SunTrust Bank,
Atlanta, as Trustee, and all Supplemental Indentures thereto.
"Unused Revolving Loan Commitment" means, for any period from
the Effective Date to the Maturity Date, the amount by which (a) the
then applicable Revolving Loan Commitment exceeds (b) the daily average
sum for such period of the aggregate principal amount of all Revolving
Loans outstanding.
"Unused Fees" has the meaning set forth in Section 3.4(a).
"Utilization Fees" has the meaning set forth in Section
3.4(b).
"Utilized Revolving Commitment" means, for any day that the
Utilization Fees are required to be paid pursuant to Section 3.4(b),
the amount equal to the principal amount of Loans outstanding on such
day.
"▇▇▇▇▇▇▇▇ Acquisition" means the acquisition by the Borrower
on April 1, 2001, of the remaining 55% ownership interest in ▇▇▇▇▇▇▇▇
Marketing LLC theretofore not owned by the Borrower, pursuant to that
certain Asset Purchase Agreement, dated as of August 7, 2000, by and
among the Borrower, Atmos Energy Marketing, LLC, a wholly-owned
Subsidiary of the Borrower, ▇▇▇▇▇▇▇▇ Marketing, Inc. and the
shareholders of ▇▇▇▇▇▇▇▇ Marketing, Inc.
1.2 COMPUTATION OF TIME PERIODS.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding." References in this Credit Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits
of or to this Credit Agreement unless otherwise specifically provided.
1.3 ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly provided herein) be
made by application of GAAP applied on a basis consistent with the most recent
annual or quarterly financial statements delivered pursuant to Section 7.1 (or,
prior to the delivery of the first financial statements pursuant to Section 7.1,
consistent with the financial statements described in Section 5.1(d)); provided,
however, if (a) the Borrower shall object to determining such compliance on such
basis at the time of delivery of such financial statements due to any change in
GAAP or the rules promulgated with respect thereto or (b) the Administrative
Agent or the Required Lenders shall so object in writing within 30 days after
delivery of such financial statements, then such calculations shall be made on a
basis consistent with the most recent financial statements delivered by the
Borrower to the Lenders as to which no such objection shall have been made.
15
1.4 TIME.
All references to time herein shall be references to Central Standard
Time or Central Daylight time, as the case may be, unless specified otherwise.
SECTION 2.
LOANS
2.1 REVOLVING LOAN COMMITMENT.
(a) Revolving Loans. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make revolving loans to
the Borrower in Dollars, at any time and from time to time, during the
period from the Effective Date to the Maturity Date (each a "Revolving
Loan" and collectively the "Revolving Loans"); provided, however, that
(i) the aggregate amount of Revolving Loans outstanding plus the
aggregate amount of Competitive Bid Loans outstanding shall not exceed
the Revolving Loan Commitment and (ii) with respect to each individual
Lender, the Lender's Commitment Percentage multiplied by the
outstanding Revolving Loans shall not exceed such Lender's Commitment.
Subject to the terms of this Credit Agreement, the Borrower may borrow,
repay and reborrow Revolving Loans.
(b) Competitive Bid Loans Subfacility.
(i) Competitive Bid Loans. Subject to the terms and
conditions set forth herein, the Borrower may, from time to
time, during the period from the Effective Date to the
Maturity Date, request, in Dollars, and each Lender may, in
its sole discretion, agree to make Competitive Bid Loans to
the Borrower; provided, however, that (A) the sum of the
aggregate amount of Revolving Loans outstanding plus the
aggregate amount of Competitive Bid Loans outstanding shall
not exceed the Revolving Loan Commitment and (B) if a Lender
does make a Competitive Bid Loan it shall not reduce such
Lender's obligation to make its pro rata share of any
Revolving Loan.
(ii) Competitive Bid Requests. The Borrower may
solicit Competitive Bids by delivery of a Competitive Bid
Request to the Administrative Agent by 10:00 a.m. on a
Business Day not less than one nor more than five Business
Days prior to the date of the requested Competitive Bid Loan.
A Competitive Bid Request must be substantially in the form of
Exhibit 2.1(b) and shall specify (A) the date of the requested
Competitive Bid Loan (which shall be a Business Day), (B) the
amount of the requested Competitive Bid Loan and (C) the
applicable Interest Period or Interest Periods requested and
must be accompanied
16
by the Competitive Bid Fee. The Administrative Agent shall
notify the Lenders of its receipt of a Competitive Bid Request
and the contents thereof and invite the Lenders to submit
Competitive Bids in response thereto. The Borrower may not
request a Competitive Bid for more than three different
Interest Periods per Competitive Bid Request and Competitive
Bid Requests may be made no more frequently than four times
every calendar month.
(iii) Competitive Bid Procedure. Each Lender may, in
its sole discretion, make one or more Competitive Bids to the
Borrower in response to a Competitive Bid Request. Each
Competitive Bid must be received by the Administrative Agent
not later than 10:00 a.m. on the proposed date of the
requested Competitive Bid Loan; provided, however, that should
the Administrative Agent, in its capacity as a Lender, desire
to submit a Competitive Bid it shall notify the Borrower of
its Competitive Bid and the terms thereof not later than 15
minutes prior to the time the other Lenders are required to
submit their Competitive Bid. A Lender may offer to make all
or part of the requested Competitive Bid Loan and may submit
multiple Competitive Bids in response to a Competitive Bid
Request. Any Competitive Bid must specify (A) the particular
Competitive Bid Request as to which the Competitive Bid is
submitted, (B) the minimum (which shall be not less than
$5,000,000 and integral multiples of $1,000,000 in excess
thereof) and maximum principal amounts of the requested
Competitive Bid Loan or Loans that the Lender is willing to
make and (C) the applicable interest rate or rates and
Interest Period or Interest Periods therefor. A Competitive
Bid submitted by a Lender in accordance with the provisions
hereof shall be irrevocable. The Administrative Agent shall
promptly notify the Borrower of all Competitive Bids made and
the terms thereof.
(iv) Acceptance of Competitive Bids. The Borrower
may, in its sole discretion, subject only to the provisions of
this subsection (iv), accept or refuse any Competitive Bid
offered to it. To accept a Competitive Bid, the Borrower shall
give oral notification of its acceptance of any or all such
Competitive Bids (which shall be promptly confirmed in
writing) to the Administrative Agent by 11:00 a.m. on the
proposed date of the Competitive Bid Loan; provided, however,
(A) the failure by the Borrower to give timely notice of its
acceptance of a Competitive Bid shall be deemed to be a
refusal thereof, (B) to the extent Competitive Bids are for
comparable Interest Periods, the Borrower may accept
Competitive Bids only in ascending order of rates, (C) the
aggregate amount of Competitive Bids accepted by the Borrower
shall not exceed the principal amount specified in the
Competitive Bid Request, (D) if the Borrower shall accept a
bid or bids made at a particular Competitive Bid Rate, but the
amount of such bid or bids shall cause the total amount of
bids to be accepted by the Borrower to be in excess of the
amount specified in the Competitive Bid Request, then the
Borrower shall accept a portion of such bid or bids in an
amount equal to the amount specified in the Competitive Bid
Request less the amount of all other Competitive Bids accepted
with respect to such Competitive Bid Request, which acceptance
in
17
the case of multiple bids at such Competitive Bid Rate, shall
be made pro rata in accordance with the amount of each such
bid at such Competitive Bid Rate and (E) no bid shall be
accepted for a Competitive Bid Loan unless such Competitive
Bid Loan is in a minimum principal amount of $5,000,000 and
integral multiples of $1,000,000 in excess thereof, except
that where a portion of a Competitive Bid is accepted in
accordance with the provisions of clause (D) of this
subsection (iv), then in a minimum principal amount of
$500,000 and integral multiples of $100,000 (but not in any
event less than the minimum amount specified in the
Competitive Bid), and in calculating the pro rata allocation
of acceptances of portions of multiple bids at a particular
Competitive Bid Rate pursuant to clause (D) of this subsection
(iv), the amounts shall be rounded to integral multiples of
$100,000 in a manner which shall be in the discretion of the
Borrower. A notice of acceptance of a Competitive Bid given by
the Borrower in accordance with the provisions hereof shall be
irrevocable. The Administrative Agent shall, not later than
noon on the proposed date of such Competitive Bid Loan, notify
each bidding Lender whether or not its Competitive Bid has
been accepted (and, if so, in what amount and at what
Competitive Bid Rate), and each successful bidder will
thereupon become bound, subject to the other applicable
conditions hereof, to make the Competitive Bid Loan in respect
of which its bid has been accepted. The Administrative Agent
shall send a copy of each of the Competitive Bids to the
Borrower and each of the Lenders for its records as soon as
practicable.
(v) Funding of Competitive Bid Loans. Each Lender
which is to make a Competitive Bid Loan shall make its
Competitive Bid Loan available to the Administrative Agent by
2:00 p.m. on the date specified in the Competitive Bid Request
by deposit of immediately available funds at the Agency
Services Address. The Administrative Agent will, upon receipt,
make the proceeds of such Competitive Bid Loans available to
the Borrower.
(vi) Maturity of Competitive Bid Loans. Each
Competitive Bid Loan shall mature and be due and payable in
full on the last day of the Interest Period applicable
thereto. Unless the Borrower shall give notice to the
Administrative Agent otherwise (or repays such Competitive Bid
Loan), or a Default or Event of Default exists and is
continuing, the Borrower shall be deemed to have requested
Revolving Loans from all of the Lenders (in the amount of the
maturing Competitive Bid Loan and accruing interest at the
Base Rate), the proceeds of which will be used to repay such
Competitive Bid Loan.
2.2 METHOD OF BORROWING FOR REVOLVING LOANS.
By no later than 11:00 a.m. (a) on the date of the requested borrowing
of Revolving Loans that will be Base Rate Loans or (b) three Business Days prior
to the date of the requested borrowing of Revolving Loans that will be
Eurodollar Loans, the Borrower shall telephone the Administrative Agent as well
as submit a written Notice of Borrowing in the form of Exhibit 2.2 to the
18
Administrative Agent setting forth (i) the amount requested, (ii) whether such
Loans shall accrue interest at the Base Rate or the Adjusted Eurodollar Rate,
(iii) with respect to Loans that will be Eurodollar Loans, the Interest Period
applicable thereto and (iv) certification that the Borrower has complied in all
respects with Section 5.2.
2.3 FUNDING OF REVOLVING LOANS.
Upon receipt of a Notice of Borrowing, the Administrative Agent shall
promptly inform the Lenders as to the terms thereof. Each such Lender shall make
its Commitment Percentage of the requested Revolving Loans available to the
Administrative Agent by 1:00 p.m. on the date specified in the Notice of
Borrowing by deposit, in Dollars, of immediately available funds at the Agency
Services Address. The amount of the requested Revolving Loans will then be made
available to the Borrower by the Administrative Agent by crediting the account
of the Borrower on the books of such office of the Administrative Agent, to the
extent the amount of such Revolving Loans are made available to the
Administrative Agent.
No Lender shall be responsible for the failure or delay by any other
Lender in its obligation to make Revolving Loans hereunder; provided, however,
that the failure of any Lender to fulfill its obligations hereunder shall not
relieve any other Lender of its obligations hereunder. Unless the Administrative
Agent shall have been notified by any Lender prior to the date of any such
Revolving Loan that such Lender does not intend to make available to the
Administrative Agent its portion of the Revolving Loans to be made on such date,
the Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on the date of such Revolving Loans, and
the Administrative Agent in reliance upon such assumption, may (in its sole
discretion but without any obligation to do so) make available to the Borrower a
corresponding amount. If such corresponding amount is not in fact made available
to the Administrative Agent, the Administrative Agent shall be able to recover
such corresponding amount from such Lender. If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent will promptly notify the Borrower, and the Borrower
shall immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover from the Lender or the
Borrower, as the case may be, interest on such corresponding amount in respect
of each day from the date such corresponding amount was made available by the
Administrative Agent to the Borrower to the date such corresponding amount is
recovered by the Administrative Agent at a per annum rate equal to (a) from the
Borrower at the applicable rate for such Revolving Loan pursuant to the Notice
of Borrowing and (b) from a Lender at the Federal Funds Rate.
2.4 CONTINUATIONS AND CONVERSIONS.
The Borrower shall have the option, on any Business Day, to continue
existing Eurodollar Loans for a subsequent Interest Period, to convert Base Rate
Loans into Eurodollar Loans or to convert Eurodollar Loans into Base Rate Loans;
provided, however, that (a) each such continuation or conversion must be
requested by the Borrower pursuant to a written Notice of
Continuation/Conversion, in the form of Exhibit 2.4, in compliance with the
terms set forth below, (b) except as provided in Section 4.1, Eurodollar Loans
may only be continued or
19
converted into Base Rate Loans on the last day of the Interest Period applicable
thereto, (c) Eurodollar Loans may not be continued nor may Base Rate Loans be
converted into Eurodollar Loans during the existence and continuation of a
Default or Event of Default and (d) any request to extend a Eurodollar Loan that
fails to comply with the terms hereof or any failure to request an extension of
a Eurodollar Loan at the end of an Interest Period shall constitute a conversion
to a Base Rate Loan on the last day of the applicable Interest Period. Each
continuation or conversion must be requested by the Borrower no later than 11:00
a.m. (i) on the date for a requested conversion of a Eurodollar Loan to a Base
Rate Loan or (ii) three Business Days prior to the date for a requested
continuation of a Eurodollar Loan or conversion of a Base Rate Loan to a
Eurodollar Loan, in each case pursuant to a written Notice of
Continuation/Conversion submitted to the Administrative Agent which shall set
forth (A) whether the Borrower wishes to continue or convert such Loans and (B)
if the request is to continue a Eurodollar Loan or convert a Base Rate Loan to a
Eurodollar Loan, the Interest Period applicable thereto.
2.5 MINIMUM AMOUNTS.
Each request for a Loan or a conversion or continuation hereunder shall
be subject to the following requirements: (a) each Eurodollar Loan shall be in a
minimum of $5,000,000 (and in integral multiples of $1,000,000 in excess
thereof), (b) each Base Rate Loan shall be in a minimum amount of the lesser of
$5,000,000 (and in integral multiples of $1,000,000 in excess thereof) or the
remaining amount of the Revolving Loan Commitment available to be borrowed and
(c) no more than five Eurodollar Loans shall be outstanding hereunder at any one
time. For the purposes of this Section 2.5, all Eurodollar Loans with the same
Interest Periods that begin and end on the same date shall be considered as one
Eurodollar Loan, but Eurodollar Loans with different Interest Periods, even if
they begin on the same date, shall be considered separate Eurodollar Loans.
2.6 REDUCTIONS OF REVOLVING LOAN COMMITMENT.
Upon at least three Business Days' prior written notice, the Borrower
shall have the right to permanently terminate or reduce the aggregate unused
amount of the Revolving Loan Commitment at any time or from time to time;
provided that (a) each partial reduction shall be in an aggregate amount at
least equal to $5,000,000 and in integral multiples of $1,000,000 above such
amount and (b) no reduction shall be made which would reduce the Revolving Loan
Commitment to an amount less than the sum of the then outstanding Revolving
Loans plus the then outstanding Competitive Bid Loans. Any reduction in (or
termination of) the Revolving Loan Commitment shall be permanent and may not be
reinstated.
2.7 NOTES.
(a) Revolving Loan Notes. The Revolving Loans made by the
Lenders shall be evidenced by a promissory note of the Borrower payable
to each Lender in substantially the form of Exhibit 2.7(a) (the
"Revolving Loan Notes").
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(b) Competitive Bid Loan Notes. The Competitive Bid Loans made
by the Lenders shall be evidenced by a promissory note of the Borrower
payable to each Lender in substantially the form of Exhibit 2.7(b) (the
"Competitive Bid Loan Notes").
The date, amount, type, interest rate and duration of Interest Period
(if applicable) of each Loan made by each Lender to the Borrower, and each
payment made on account of the principal thereof, shall be recorded by such
Lender on its books; provided that the failure of such Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower to
make a payment when due of any amount owing hereunder or under any Note in
respect of the Loans to be evidenced by such Note, and each such recordation or
endorsement shall be conclusive and binding absent manifest error.
2.8 INCREASE IN COMMITMENTS.
Prior to the Maturity Date and upon at least 30 days' but no more than
45 days' prior written notice to the Administrative Agent (which notice shall be
promptly transmitted by the Administrative Agent to each Lender), the Borrower
shall have the one-time right, subject to the terms and conditions set forth
below, to increase the Revolving Loan Commitment; provided that (a) the
Revolving Loan Commitment may not be increased to an amount greater than Four
Hundred Million Dollars ($400,000,000) without the prior written consent of the
Required Lenders, (b) no Default or Event of Default shall exist and be
continuing either prior to or after giving effect to such increase, (c) such
increase must be in a minimum amount of $10,000,000 and in integral multiples of
$1,000,000 above such amount, (d) no individual Lender's Commitment may be
increased without such Lender's consent, (e) the Borrower shall execute and
deliver such Note(s) as are necessary to reflect such increase in the Revolving
Loan Commitment, (f) Schedule 1.1 shall be amended to reflect the revised
Commitments of the Lenders and (g) if any Loans are outstanding at the time of
such increase, the Borrower will prepay (provided that any such prepayment shall
be subject to Section 4.3) one or more existing Loans in an amount necessary
such that after giving effect to such increase in the Revolving Loan Commitment
each Lender will hold its pro rata share (based on its share of the revised
Revolving Loan Commitment) of outstanding Loans.
Any such increase in the Revolving Loan Commitment shall apply, at the
option of the Borrower, to (i) the Commitment of one or more existing Lenders;
provided that any Lender whose Commitment is being increased must consent in
writing thereto (such consent to be in such existing Lender's sole discretion)
and/or (ii) the creation of a new Commitment to one or more institutions that is
not an existing Lender; provided that any such institution (A) must conform to
the definition of Eligible Assignee and (B) must become a Lender under this
Credit Agreement by execution and delivery of an appropriate joinder agreement
or of counterparts to this Credit Agreement in a manner acceptable to the
Borrower and the Administrative Agent.
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SECTION 3.
PAYMENTS
3.1 INTEREST.
(a) Interest Rate.
(i) All Base Rate Loans shall accrue interest at the
Base Rate.
(ii) All Eurodollar Loans shall accrue interest at
the Adjusted Eurodollar Rate applicable to each Eurodollar
Loan.
(iii) All Competitive Bid Loans shall accrue interest
at the applicable Competitive Bid Rate with respect to each
Competitive Bid Loan.
(b) Default Rate of Interest. Upon the occurrence, and during
the continuation, of an Event of Default, the principal of and, to the
extent permitted by law, interest on the Loans and any other amounts
owing hereunder or under the other Credit Documents shall bear
interest, payable on demand, at a per annum rate equal to two percent
(2%) plus the rate which would otherwise be applicable (or if no rate
is applicable, then the rate for Revolving Loans that are Base Rate
Loans plus two percent (2%) per annum).
(c) Interest Payments. Interest on Loans shall be due and
payable in arrears on each Interest Payment Date.
3.2 PREPAYMENTS.
(a) Voluntary Prepayments. The Borrower shall have the right
to prepay Loans in whole or in part from time to time without premium
or penalty; provided, however, that (i) Eurodollar Loans may only be
prepaid on three Business Days' prior written notice to the
Administrative Agent and any prepayment of Eurodollar Loans will be
subject to Section 4.3; (ii) each such partial prepayment of Loans
shall be in the minimum principal amount of $5,000,000 and in integral
multiples of $1,000,000 above such amount; and (iii) Competitive Bid
Loans may not be prepaid unless a breakage fee equal to the actual
amount of damages suffered by the Lender whose Competitive Bid Loan is
prepaid is paid to such Lender. Amounts prepaid hereunder shall be
applied as the Borrower may elect; provided that if the Borrower fails
to specify the application of a voluntary prepayment then such
prepayment shall be applied first to Base Rate Loans, then to
Eurodollar Loans in direct order of Interest Period maturities, and
then to Competitive Bid Loans pro rata among all Lenders holding same.
(b) Mandatory Prepayments. If at any time the amount of
Revolving Loans outstanding plus the amount of Competitive Bid Loans
outstanding exceeds the Revolving Loan Commitment, the Borrower shall
immediately make a principal payment to the
22
Administrative Agent in the manner and in an amount such that the
amount of Revolving Loans outstanding plus the amount of Competitive
Bid Loans outstanding is less than or equal to the Revolving Loan
Commitment. Any payments made under this Section 3.2(b) shall be
subject to Section 4.3 and shall be applied first to Base Rate Loans,
then to Eurodollar Loans in direct order of Interest Period maturities
and then to Competitive Bid Loans pro rata among all Lenders holding
same.
3.3 PAYMENT IN FULL AT MATURITY.
On the Maturity Date, the entire outstanding principal balance of all
Loans, together with accrued but unpaid interest and all other sums owing under
this Credit Agreement and the other Credit Documents, shall be due and payable
in full, unless accelerated sooner pursuant to Section 9.2.
3.4 FEES.
(a) Unused Fees.
(i) In consideration of the Revolving Loan Commitment
being made available by the Lenders hereunder, the Borrower
agrees to pay to the Administrative Agent, for the pro rata
benefit of each Lender, a per annum fee equal to the
Applicable Percentage for Unused Fees on the Unused Revolving
Loan Commitment (the "Unused Fees").
(ii) The accrued Unused Fees shall be due and payable
in arrears five Business Days after the end of each fiscal
quarter of the Borrower (as well as on the Maturity Date) for
the immediately preceding fiscal quarter (or portion thereof),
beginning with the first of such dates to occur after the
Effective Date.
(b) Utilization Fees. For each day that the principal amount
of outstanding Loans hereunder shall exceed an amount equal to thirty
three percent (33%) of the Revolving Loan Commitment, the Borrower
shall pay to the Administrative Agent, for the pro rata benefit of the
Lenders, a per annum fee equal to one-eighth of one percent (.125%) on
the Utilized Revolving Commitment for such day (the "Utilization
Fees"). The Utilization Fees, if any, shall be due and payable in
arrears five Business Days after the end of each fiscal quarter of the
Borrower (as well as on the Maturity Date) for the immediately
preceding fiscal quarter (or portion thereof), beginning with the first
of such dates to occur after the Effective Date.
(c) Administrative Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, an annual fee as agreed to
between the Borrower and the Administrative Agent in the Fee Letter.
23
3.5 PLACE AND MANNER OF PAYMENTS.
All payments of principal, interest, fees, expenses and other amounts
to be made by the Borrower under this Credit Agreement shall be made
unconditionally and without setoff, deduction, defense, recoupment or
counterclaim and received not later than 2:00 p.m. on the date when due, in
Dollars and in immediately available funds, by the Administrative Agent at the
Agency Services Address. In the event any such payment shall be due on a day
that is not a Business Day, the applicable payment date shall be the next
succeeding Business Day, except, with respect to Eurodollar Loans, if the next
succeeding Business Day shall fall in the next succeeding calendar month, then
such payment shall be due on the next preceding Business Day. The Borrower
shall, at the time it makes any payment under this Credit Agreement, specify to
the Administrative Agent, the Loans, fees or other amounts payable by the
Borrower hereunder to which such payment is to be applied (and in the event that
it fails to specify, or if such application would be inconsistent with the terms
hereof, the Administrative Agent shall distribute such payment to the Lenders in
such manner as it reasonably determines in its sole discretion.)
3.6 PRO RATA TREATMENT.
Except to the extent otherwise provided herein, all Revolving Loans,
each payment or prepayment of principal of any Revolving Loan, each payment of
interest on the Revolving Loans, each payment of Unused Fees, each payment of
Utilization Fees, each reduction of the Revolving Loan Commitment, and each
conversion or continuation of any Revolving Loans, shall be allocated pro rata
among the Lenders in accordance with the respective Commitment Percentages;
provided that, if any Lender shall have failed to pay its applicable pro rata
share of any Revolving Loan, then any amount to which such Lender would
otherwise be entitled pursuant to this Section 3.6 shall instead be payable to
the Administrative Agent until the share of such Revolving Loan not funded by
such Lender has been repaid and any interest owed by such Lender as a result of
such failure to fund has been paid; and provided further, that in the event any
amount paid to any Lender pursuant to this Section 3.6 is rescinded or must
otherwise be returned by the Administrative Agent, each Lender shall, upon the
request of the Administrative Agent, repay to the Administrative Agent the
amount so paid to such Lender, with interest for the period commencing on the
date such payment is returned by the Administrative Agent until the date the
Administrative Agent receives such repayment at a rate per annum equal to,
during the period to but excluding the date two Business Days after such
request, the Federal Funds Rate, and thereafter, the Base Rate plus two percent
(2%) per annum.
3.7 COMPUTATIONS OF INTEREST AND FEES.
(a) Except for Base Rate Loans accruing interest at the Prime
Rate, which interest shall be computed on the basis of a 365 or 366 day
year as the case may be, all computations of interest and fees
hereunder shall be made on the basis of the actual number of days
elapsed over a year of 360 days. Interest shall accrue from the date a
Loan is made until the date such Loan is repaid or continued or
converted pursuant to Section 2.4.
(b) It is the intent of the Lenders and the Borrower to
conform to and contract in
24
strict compliance with applicable usury law from time to time in
effect. All agreements between the Lenders and the Borrower are hereby
limited by the provisions of this paragraph which shall override and
control all such agreements, whether now existing or hereafter arising
and whether written or oral. In no way, nor in any event or contingency
(including but not limited to prepayment or acceleration of the
maturity of any obligation), shall the interest taken, reserved,
contracted for, charged, or received under this Credit Agreement, under
the Notes or otherwise, exceed the maximum nonusurious amount
permissible under applicable law. If, from any possible construction of
any of the Credit Documents or any other document, interest would
otherwise be payable in excess of the maximum nonusurious amount, any
such construction shall be subject to the provisions of this paragraph
and interest owing pursuant to such documents shall be automatically
reduced to the maximum nonusurious amount permitted under applicable
law, without the necessity of execution of any amendment or new
document. If any Lender shall ever receive anything of value which is
characterized as interest on the Loans under applicable law and which
would, apart from this provision, be in excess of the maximum lawful
amount, an amount equal to the amount which would have been excessive
interest shall, without penalty, be applied to the reduction of the
principal amount owing on the Loans and not to the payment of interest,
or refunded to the Borrower or the other payor thereof if and to the
extent such amount which would have been excessive exceeds such unpaid
principal amount of the Loans. The right to demand payment of the Loans
or any other indebtedness evidenced by any of the Credit Documents does
not include the right to receive any interest which has not otherwise
accrued on the date of such demand, and the Lenders do not intend to
charge or receive any unearned interest in the event of such demand.
All interest paid or agreed to be paid to the Lenders with respect to
the Loans shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full stated
term (including any renewal or extension) of the Loans so that the
amount of interest on account of such indebtedness does not exceed the
maximum nonusurious amount permitted by applicable law.
3.8 SHARING OF PAYMENTS.
Each Lender agrees that, in the event that any Lender shall obtain
payment in respect of any Loan or any other obligation owing to such Lender
under this Credit Agreement through the exercise of a right of set-off, banker's
lien, counterclaim or otherwise (including, but not limited to, pursuant to the
Bankruptcy Code) in excess of its pro rata share as provided for in this Credit
Agreement, such Lender shall promptly purchase from the other Lenders a
participation in such Loans and other obligations, in such amounts and with such
other adjustments from time to time, as shall be equitable in order that all
Lenders share such payment in accordance with their respective ratable shares as
provided for in this Credit Agreement. Each Lender further agrees that if a
payment to a Lender (which is obtained by such Lender through the exercise of a
right of set-off, banker's lien, counterclaim or otherwise) shall be rescinded
or must otherwise be restored, each Lender which shall have shared the benefit
of such payment shall, by repurchase of a participation theretofore sold, return
its share of that benefit to each Lender whose payment shall have been rescinded
or otherwise restored. The Borrower agrees that any Lender so purchasing such a
participation may, to the fullest extent permitted by law, exercise all rights
of payment, including
25
set-off, banker's lien or counterclaim, with respect to such participation as
fully as if such Lender were a holder of such Loan or other obligation in the
amount of such participation. Except as otherwise expressly provided in this
Credit Agreement, if any Lender shall fail to remit to the Administrative Agent
or any other Lender an amount payable by such Lender to the Administrative Agent
or such other Lender pursuant to this Credit Agreement on the date when such
amount is due, such payments shall accrue interest thereon, for each day from
the date such amount is due until the day such amount is paid to the
Administrative Agent or such other Lender, at a rate per annum equal to the
Federal Funds Rate. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section 3.8 applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Lenders under this Section 3.8 to share in the benefits of any
recovery on such secured claim.
3.9 EVIDENCE OF DEBT.
(a) Each Lender shall maintain an account or accounts
evidencing each Loan made by such Lender to the Borrower from time to
time, including the amounts of principal and interest payable and paid
to such Lender from time to time under this Credit Agreement. Each
Lender will make reasonable efforts to maintain the accuracy of its
account or accounts and to promptly update its account or accounts from
time to time, as necessary.
(b) The Administrative Agent shall maintain the Register
pursuant to Section 11.3(c), and a subaccount for each Lender, in which
Register and subaccounts (taken together) shall be recorded (i) the
amount, type and Interest Period of each such Loan hereunder, (ii) the
amount of any principal or interest due and payable or to become due
and payable to each Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder from or for the account
of the Borrower and each Lender's share thereof. The Administrative
Agent will make reasonable efforts to maintain the accuracy of the
subaccounts referred to in the preceding sentence and to promptly
update such subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (b) of this Section 3.9 (and, if
consistent with the entries of the Administrative Agent, subsection
(a)) shall be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that
the failure of any Lender or the Administrative Agent to maintain any
such account, such Register or such subaccount, as applicable, or any
error therein, shall not in any manner affect the obligation of the
Borrower to repay the Loans made by such Lender in accordance with the
terms hereof.
26
SECTION 4.
ADDITIONAL PROVISIONS REGARDING LOANS
4.1 EURODOLLAR LOAN PROVISIONS.
(a) Unavailability. In the event that the Administrative Agent
shall have determined in good faith (i) that U.S. dollar deposits in
the principal amounts requested with respect to a Eurodollar Loan are
not generally available in the London interbank Eurodollar market or
(ii) that reasonable means do not exist for ascertaining the Eurodollar
Rate, the Administrative Agent shall, as soon as practicable
thereafter, give notice of such determination to the Borrower and the
Lenders. In the event of any such determination under clauses (i) or
(ii) above, until the Administrative Agent shall have advised the
Borrower and the Lenders that the circumstances giving rise to such
notice no longer exist, (A) any request by the Borrower for Eurodollar
Loans shall be deemed to be a request for Base Rate Loans, (B) any
request by the Borrower for conversion into or continuation of
Eurodollar Loans shall be deemed to be a request for conversion into or
continuation of Base Rate Loans and (C) any Loans that were to be
converted or continued as Eurodollar Loans on the first day of an
Interest Period shall be converted to or continued as Base Rate Loans.
(b) Change in Legality.
(i) Notwithstanding any other provision herein, if
any change, after the date hereof, in any law, governmental
rule, regulation, guideline or order (including the
introduction of any new law, governmental rule, regulation,
guideline or order) or in the interpretation or administration
thereof by any Governmental Authority charged with the
interpretation or administration thereof shall make it
unlawful for any Lender to make or maintain any Eurodollar
Loan or to give effect to its obligations as contemplated
hereby with respect to any Eurodollar Loan, then, by written
notice to the Borrower and to the Administrative Agent, such
Lender may:
(A) declare that Eurodollar Loans, and
conversions to or continuations of Eurodollar Loans,
will not thereafter be made by such Lender hereunder,
whereupon any request by the Borrower for, or for
conversion into or continuation of, Eurodollar Loans
shall, as to such Lender only, be deemed a request
for, or for conversion into or continuation of, Base
Rate Loans, unless such declaration shall be
subsequently withdrawn; and
(B) require that all outstanding Eurodollar
Loans made by it be converted to Base Rate Loans in
which event all such Eurodollar Loans shall be
automatically converted to Base Rate Loans.
In the event any Lender shall exercise its rights under clause
(A) or (B) above, all payments and prepayments of principal which would
otherwise have been applied to repay
27
the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to
repay the Base Rate Loans made by such Lender in lieu of, or resulting
from the conversion of, such Eurodollar Loans.
(c) Requirements of Law. If at any time a Lender shall incur
increased costs or reductions in the amounts received or receivable
hereunder with respect to the making, the commitment to make or the
maintaining of any Eurodollar Loan because of (i) any change after the
date hereof, in any law, governmental rule, regulation, guideline or
order (including the introduction of any new law, governmental rule,
regulation, guideline or order) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, including, without
limitation, the imposition, modification or deemed applicability of any
reserves, deposits or similar requirements (such as, for example, but
not limited to, a change in official reserve requirements, but, in all
events, excluding reserves required under Regulation D to the extent
included in the computation of the Adjusted Eurodollar Rate) or (ii)
other circumstances affecting the London interbank Eurodollar market;
then (A) the Lender shall promptly notify the Administrative Agent and
the Borrower and shall designate a different lending office of such
Lender if such designation will avoid or reduce the amount of such
increased costs, or reductions in amounts receivable and such
designation will not, in such Lender's sole discretion, be otherwise
disadvantageous to such Lender and (B) the Borrower shall promptly pay
to such Lender such additional amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as
such Lender may determine in its sole discretion) as may be required to
compensate such Lender for such increased costs or reductions in
amounts receivable hereunder.
Each determination and calculation made by a Lender under this Section
4.1 shall, absent manifest error, be binding and conclusive on the parties
hereto. Any conversions of Eurodollar Loans made pursuant to this Section 4.1
shall subject the Borrower to the payments required by Section 4.3. This Section
4.1 shall survive termination of this Credit Agreement and the other Credit
Documents and the payment of the Loans and all other amounts payable hereunder.
4.2 CAPITAL ADEQUACY.
If any Lender has determined in good faith that the adoption or
effectiveness, after the date hereof, of any applicable law, rule or regulation
regarding capital adequacy, or any change therein (after the date hereof), or
any change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Lender (or its parent corporation)
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Lender's (or
parent corporation's) capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender (or its parent
corporation) could have achieved but for such adoption, effectiveness, change or
compliance (taking into consideration such Lender's (or parent corporation's)
policies with respect to capital adequacy), then, upon notice from such Lender,
the Borrower shall promptly pay to such Lender such additional amount or amounts
as
28
will compensate such Lender for such reduction. Each determination by any such
Lender of amounts owing under this Section 4.2 shall, absent manifest error, be
conclusive and binding on the parties hereto. This Section 4.2 shall survive
termination of this Credit Agreement and the other Credit Documents and the
payment of the Loans and all other amounts payable hereunder.
4.3 COMPENSATION.
The Borrower promises to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur as a
consequence of (a) default by the Borrower in the making of a borrowing of a
Competitive Bid Loan or in the making of a borrowing of, conversion into or
continuation of a Eurodollar Loan after the Borrower has given a notice
requesting the same in accordance with the provisions of this Credit Agreement,
(b) default by the Borrower in making any prepayment of a Eurodollar Loan or a
Competitive Bid Loan after the Borrower has given a notice thereof in accordance
with the provisions of this Credit Agreement, (c) the making of a prepayment of
a Eurodollar Loan or a Competitive Bid Loan on a day which is not the last day
of an Interest Period with respect thereto and (d) the payment, continuation or
conversion of a Eurodollar Loan or a Competitive Bid Loan on a day which is not
the last day of the Interest Period applicable thereto or the failure to repay a
Eurodollar Loan when required by the terms of this Credit Agreement. Each
determination by any such Lender of amounts owing under this Section 4.3 shall,
absent manifest error, be conclusive and binding on the parties hereto. This
Section 4.3 shall survive the termination of this Credit Agreement and the other
Credit Documents and the payment of the Loans and all other amounts payable
hereunder.
4.4 TAXES.
(a) Except as provided below in this Section 4.4, all payments
made by the Borrower under this Credit Agreement and any Notes shall be
made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any
court, or governmental body, agency or other official, excluding taxes
measured by or imposed upon the net income of any Lender or its
applicable lending office, or any branch or affiliate thereof, and all
franchise taxes, branch taxes, taxes on doing business or taxes on the
capital or net worth of any Lender or its applicable lending office, or
any branch or affiliate thereof, in each case imposed in lieu of net
income taxes: (i) by the jurisdiction under the laws of which such
Lender, applicable lending office, branch or affiliate is organized or
is located, or in which its principal executive office is located, or
any nation within which such jurisdiction is located or any political
subdivision thereof; or (ii) by reason of any connection between the
jurisdiction imposing such tax and such Lender, applicable lending
office, branch or affiliate other than a connection arising solely from
such Lender having executed, delivered or performed its obligations, or
received payment under or enforced, this Credit Agreement or any Notes.
If any such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings ("Non-Excluded Taxes") are required to be
withheld from any amounts payable to an Administrative
29
Agent or any Lender hereunder or under any Notes, (A) the amounts so
payable to the Administrative Agent or such Lender shall be increased
to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts
specified in this Credit Agreement and any Notes, provided, however,
that the Borrower shall be entitled to deduct and withhold any Non-
Excluded Taxes and shall not be required to increase any such amounts
payable to any Lender that is not organized under the laws of the
United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this Section 4.4
whenever any Non-Excluded Taxes are payable by the Borrower, and (B) as
promptly as possible after requested, the Borrower shall send to the
Administrative Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official
receipt received by the Borrower showing payment thereof. If the
Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative
Agent the required receipts or other required documentary evidence, the
Borrower shall indemnify the Administrative Agent and any Lender for
any incremental Non-Excluded Taxes, interest or penalties that may
become payable by the Administrative Agent or any Lender as a result of
any such failure. The agreements in this Section 4.4 shall survive the
termination of this Credit Agreement and the payment of the Loans and
all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) (A) on or before the date of any payment
by the Borrower under this Credit Agreement or the
Notes to such Lender, deliver to the Borrower and the
Administrative Agent (x) two duly completed copies of
United States Internal Revenue Service Form W8-BEN or
W8-ECI, or successor applicable form, as the case may
be, certifying that it is entitled to receive
payments under this Credit Agreement and any Notes
without deduction or withholding of any United States
federal income taxes and (y) an Internal Revenue
Service Form W-8 or W-9, or successor applicable
form, as the case may be, certifying that it is
entitled to an exemption from United States backup
withholding tax;
(B) deliver to the Borrower and
the Administrative Agent two further copies of any
such form or certification on or before the date that
any such form or certification expires or becomes
obsolete and after the occurrence of any event
requiring a change in the most recent form previously
delivered by it to the Borrower; and
(C) obtain such extensions of time
for filing and complete such forms or certifications
as may reasonably be requested by the Borrower or the
Administrative Agent; or
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(ii) in the case of any such Lender that is not a
"bank" within the meaning of Section 881(c)(3)(A) of the
Internal Revenue Code, (A) represent to the Borrower (for the
benefit of the Borrower and the Administrative Agent) that it
is not a bank within the meaning of Section 881 (c)(3)(A) of
the Internal Revenue Code, (B) agree to furnish to the
Borrower, on or before the date of any payment by the
Borrower, with a copy to the Administrative Agent, two
accurate and complete original signed copies of Internal
Revenue Service Form W-8, or successor applicable form
certifying to such Lender's legal entitlement at the date of
such certificate to an exemption from U.S. withholding tax
under the provisions of Section 881(c) of the Internal Revenue
Code with respect to payments to be made under this Credit
Agreement and any Notes (and to deliver to the Borrower and
the Administrative Agent two further copies of such form on or
before the date it expires or becomes obsolete and after the
occurrence of any event requiring a change in the most
recently provided form and, if necessary, obtain any
extensions of time reasonably requested by the Borrower or the
Administrative Agent for filing and completing such forms),
and (C) agree, to the extent legally entitled to do so, upon
reasonable request by the Borrower, to provide to the Borrower
(for the benefit of the Borrower and the Administrative Agent)
such other forms as may be reasonably required in order to
establish the legal entitlement of such Lender to an exemption
from withholding with respect to payments under this Credit
Agreement and any Notes.
Notwithstanding the above, if any change in treaty,
law or regulation has occurred after the date such Person
becomes a Lender hereunder which renders all such forms
inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it and
such Lender so advises the Borrower and the Administrative
Agent, then such Lender shall be exempt from such
requirements. Each Person that shall become a Lender or a
participant of a Lender pursuant to Section 11.3 shall, upon
the effectiveness of the related transfer, be required to
provide all of the forms, certifications and statements
required pursuant to this subsection (b); provided that in the
case of a participant of a Lender, the obligations of such
participant of a Lender pursuant to this subsection (b) shall
be determined as if the participant of a Lender were a Lender
except that such participant of a Lender shall furnish all
such required forms, certifications and statements to the
Lender from which the related participation shall have been
purchased.
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SECTION 5.
CONDITIONS PRECEDENT
5.1 CLOSING CONDITIONS.
The obligation of the Lenders to enter into this Credit Agreement is
subject to satisfaction (or waiver) of the following conditions:
(a) Executed Credit Documents. Receipt by the Administrative
Agent of duly executed copies of (i) this Credit Agreement, (ii) the
Notes and (iii) all other Credit Documents, each in form and substance
acceptable to the Lenders.
(b) Corporate Documents. Receipt by the Administrative Agent
of the following:
(i) Charter Documents. Copies of the articles of
incorporation or other charter documents of the Borrower
certified to be true and complete as of a recent date by the
appropriate Governmental Authorities of the states or other
jurisdictions of its incorporation and certified by a
secretary or assistant secretary of the Borrower to be true
and correct as of the Closing Date.
(ii) Bylaws. A copy of the bylaws of the Borrower
certified by a secretary or assistant secretary of the
Borrower to be true and correct as of the Closing Date.
(iii) Resolutions. Copies of resolutions of the Board
of Directors of the Borrower approving and adopting the Credit
Documents to which it is a party, the transactions
contemplated therein and authorizing execution and delivery
thereof, certified by a secretary or assistant secretary of
the Borrower to be true and correct and in full force and
effect as of the Closing Date.
(iv) Good Standing. Copies of certificates of good
standing, existence or its equivalent with respect to the
Borrower certified as of a recent date by the appropriate
Governmental Authorities of the states or other jurisdictions
of incorporation and each other jurisdiction in which the
failure to so qualify and be in good standing would have a
Material Adverse Effect.
(v) Incumbency. An incumbency certificate of the
Borrower certified by a secretary or assistant secretary of
the Borrower to be true and correct as of the Closing Date.
(c) Opinion of Counsel. Receipt by the Administrative Agent of
an opinion, or opinions, from legal counsel to the Borrower addressed
to the Administrative Agent on behalf of the Lenders and dated as of
the Effective Date, in each case satisfactory in form and substance to
the Administrative Agent.
(d) Financial Statements. Receipt by the Lenders of the
consolidated audited financial statements of the Borrower and its
Subsidiaries dated as of September 30, 1999 and September 30, 2000, and
the unaudited financial statements for the quarters ending December 31,
2000 and March 31, 2001, including balance sheets and income and cash
flow statements, in each case audited (except for the quarterly
financial statements) by
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independent public accountants of recognized standing and prepared in
accordance with GAAP.
(e) Fees and Expenses. Payment by the Borrower of all fees and
expenses owed by it to the Lenders and the Administrative Agent,
including, without limitation, payment to the Administrative Agent of
the fees set forth in the Fee Letter.
(f) Material Adverse Effect. No event or condition shall have
occurred since March 31, 2001 that has had or would be reasonably
expected to have a Material Adverse Effect.
(g) Officer's Certificates. The Administrative Agent shall
have received a certificate or certificates executed by a Financial
Officer of the Borrower as of the Effective Date stating that (i) the
Borrower and its Subsidiaries are in compliance with all existing
material financial obligations, (ii) no action, suit, investigation or
legal, equitable, arbitration or administrative proceeding is pending
or, to such officer's knowledge, threatened in any court or before any
arbitrator or Governmental Authority that would have or be reasonably
expected to have a Material Adverse Effect, (iii) the financial
statements and information delivered to the Administrative Agent on or
before the Effective Date were prepared in good faith and in accordance
with GAAP and (iv) immediately after giving effect to this Credit
Agreement, the other Credit Documents and all the transactions
contemplated herein and therein to occur on such date, (A) no Default
or Event of Default exists, (B) all representations and warranties
contained herein and in the other Credit Documents are true and correct
in all material respects on and as of the date made and (C) the
Borrower is in compliance with the financial covenant set forth in
Section 7.2.
(h) Payment of Existing Debt. Receipt by the Administrative
Agent of evidence that the Existing Term Credit Agreement has been
terminated and all amounts owing thereunder have been paid in full.
(i) Other. Receipt by the Lenders of such other documents,
instruments, agreements or information as reasonably requested by any
Lender.
5.2 CONDITIONS TO LOANS.
In addition to the conditions precedent stated elsewhere herein, the
Lenders shall not be obligated to make new Loans unless:
(a) Request. The Borrower shall have timely delivered a duly
executed and completed Notice of Borrowing or Competitive Bid Request,
as applicable, in conformance with all the terms and conditions of this
Credit Agreement.
(b) Representations and Warranties. The representations and
warranties made by the Borrower are true and correct in all material
respects at and as if made as of the date of the funding of the
requested Loans.
33
(c) No Default. No Default or Event of Default shall exist or
be continuing either prior to or after giving effect thereto.
(d) Availability. Immediately after giving effect to the
making of a Loan (and the application of the proceeds thereof) the sum
of the amount of Revolving Loans outstanding plus the amount of
Competitive Bid Loans outstanding shall not exceed the Revolving Loan
Commitment.
The delivery of each Notice of Borrowing and each Competitive Bid Request shall
constitute a representation and warranty by the Borrower of the correctness of
the matters specified in subsections (b) through (d) above.
SECTION 6.
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to each Lender that:
6.1 ORGANIZATION AND GOOD STANDING.
The Borrower (a) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdictions of its incorporation, (b)
is duly qualified and in good standing as a foreign corporation authorized to do
business in every jurisdiction where the failure to so qualify would have or
would reasonably be expected to have a Material Adverse Effect and (c) has the
requisite corporate power and authority to own its properties and to carry on
its business as now conducted and as proposed to be conducted.
6.2 DUE AUTHORIZATION.
The Borrower (a) has the requisite corporate power and authority to
execute, deliver and perform this Credit Agreement and the other Credit
Documents and to incur the obligations herein and therein provided for and (b)
has been authorized by all necessary corporate action, to execute, deliver and
perform this Credit Agreement and the other Credit Documents.
6.3 NO CONFLICTS.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by the Borrower will in any
material respect (a) violate or conflict with any provision of its articles of
incorporation or bylaws, (b) violate, contravene or conflict with any law
(including without limitation, the Public Utility Holding Company Act of 1935,
as amended), regulation (including without limitation, Regulation U, Regulation
X or any regulation promulgated
34
by the Federal Energy Regulatory Commission), order, writ, judgment, injunction,
decree or permit applicable to it, (c) violate, contravene or conflict with
contractual provisions of, or cause an event of default under, any indenture,
loan agreement, mortgage, deed of trust, contract or other agreement or
instrument to which it is a party or by which it or its properties may be bound,
or (d) result in or require the creation of any Lien upon or with respect to its
properties.
6.4 CONSENTS.
No consent, approval, authorization or order of, or filing,
registration or qualification with, any court or Governmental Authority or third
party is required in connection with the execution, delivery or performance of
this Credit Agreement or any of the other Credit Documents.
6.5 ENFORCEABLE OBLIGATIONS.
This Credit Agreement and the other Credit Documents have been duly
executed and delivered and constitute legal, valid and binding obligations of
the Borrower enforceable against the Borrower in accordance with their
respective terms, except as may be limited by bankruptcy or insolvency laws or
similar laws affecting creditors' rights generally or by general equitable
principles.
6.6 FINANCIAL CONDITION.
(a) The financial statements delivered to the Lenders pursuant
to Section 5.1(d) and pursuant to Section 7.1(a) and (b): (i) have been
prepared in accordance with GAAP (subject to the provisions of Section
1.3) and (ii) present fairly in all material respects the financial
condition, results of operations, and cash flows of the Borrower and
its Subsidiaries as of such date and for such periods.
(b) Other than the LGS Acquisition and the ▇▇▇▇▇▇▇▇
Acquisition, since March 31, 2001, there has been no sale, transfer or
other disposition by the Borrower of any material part of the business
or property of the Borrower, and no purchase or other acquisition by
the Borrower of any business or property (including any Capital Stock
of any other Person) material in relation to the financial condition of
the Borrower, in each case, which, is not (i) reflected in the most
recent financial statements delivered to the Lenders pursuant to
Section 7.1 or in the notes thereto or (ii) otherwise permitted by the
terms of this Credit Agreement and communicated to the Administrative
Agent.
6.7 NO MATERIAL CHANGE.
Since March 31, 2001, there has been no development or event relating
to or affecting the Borrower or any of its Subsidiaries that has had or would be
reasonably expected to have a Material Adverse Effect, it being understood that
the consummation of the Acquisition, in and of itself, does not constitute a
Material Adverse Effect.
35
6.8 NO DEFAULT.
No Default or Event of Default presently exists and is continuing.
6.9 LITIGATION.
There are no actions, suits, investigations or legal, equitable,
arbitration or administrative proceedings pending or, to the knowledge of the
Borrower, threatened against the Borrower, any of its Subsidiaries or any of its
properties which could have or be reasonably expected to have a Material Adverse
Effect.
6.10 TAXES.
The Borrower and its Subsidiaries have filed, or caused to be filed,
all tax returns (federal, state, local and foreign) required to be filed and
paid all amounts of taxes shown thereon to be due (including interest and
penalties) and has paid all other taxes, fees, assessments and other
governmental charges (including mortgage recording taxes, documentary stamp
taxes and intangibles taxes) owing by it, except for such taxes which are not
yet delinquent or that are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained in
accordance with GAAP.
6.11 COMPLIANCE WITH LAW.
The Borrower and each of its Subsidiaries is in compliance with all
laws, rules, regulations, orders and decrees applicable to it or to its
properties, except where the failure to be in compliance would not have or would
not reasonably be expected to have a Material Adverse Effect.
6.12 MATERIAL AGREEMENTS.
Neither the Borrower nor any of its Subsidiaries is in default in any
respect under any contract, lease, loan agreement, indenture, mortgage, security
agreement or other agreement or obligation to which it is a party or by which
any of its properties is bound which default has had or would be reasonably
expected to have a Material Adverse Effect.
6.13 ERISA.
Except as would not result or be reasonably expected to result in a
Material Adverse Effect:
(a) During the five-year period prior to the date on which
this representation is made or deemed made: (i) no Termination Event
has occurred, and, to the best knowledge of the Borrower, no event or
condition has occurred or exists as a result of which any Termination
Event is reasonably expected to occur, with respect to any Plan; (ii)
no "accumulated funding deficiency," as such term is defined in Section
302 of ERISA and Section 412 of the Code, whether or not waived, has
occurred with respect to any Plan;
36
(iii) each Plan has been maintained, operated, and funded in material
compliance with its own terms and in material compliance with the
provisions of ERISA, the Code, and any other applicable federal or
state laws; and (iv) no Lien in favor or the PBGC or a Plan has arisen
or is reasonably expected to arise on account of any Plan.
(b) No liability has been or is reasonably expected by the
Borrower to be incurred under Sections 4062, 4063 or 4064 of ERISA with
respect to any Single Employer Plan by the Borrower or any of its
Subsidiaries which has or would reasonably be expected to have a
Material Adverse Effect.
(c) The actuarial present value of all "benefit liabilities"
under each Single Employer Plan (determined within the meaning of
Section 401(a)(2) of the Code, utilizing the actuarial assumptions used
to fund such Plans), whether or not vested, did not, as of the last
annual valuation date prior to the date on which this representation is
made or deemed made, exceed the current value of the assets of such
Plan allocable to such accrued liabilities, except as disclosed in the
Borrower's financial statements.
(d) Neither the Borrower nor any ERISA Affiliate has incurred,
or, to the best knowledge of the Borrower, is reasonably expected to
incur, any withdrawal liability under ERISA to any Multiemployer Plan
or Multiple Employer Plan. Neither the Borrower nor any ERISA Affiliate
has received any notification that any Multiemployer Plan is in
reorganization (within the meaning of Section 4241 of ERISA), is
insolvent (within the meaning of Section 4245 of ERISA), or has been
terminated (within the meaning of Title IV of ERISA), and no
Multiemployer Plan is, to the best knowledge of the Borrower,
reasonably expected to be in reorganization, insolvent, or terminated.
(e) No prohibited transaction (within the meaning of Section
406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility has occurred with respect to a Plan which has subjected
or is reasonably likely to subject the Borrower or any ERISA Affiliate
to any liability under Sections 406, 407, 409, 502(i), or 502(l) of
ERISA or Section 4975 of the Code, or under any agreement or other
instrument pursuant to which the Borrower or any ERISA Affiliate has
agreed or is required to indemnify any person against any such
liability.
(f) The present value (determined using actuarial and other
assumptions which are reasonable with respect to the benefits provided
and the employees participating) of the liability of the Borrower and
each ERISA Affiliate for post-retirement welfare benefits to be
provided to their current and former employees under Plans which are
welfare benefit plans (as defined in Section 3(1) of ERISA), net of all
assets under all such Plans allocable to such benefits, are reflected
on the financial statements referenced in Section 7.1 in accordance
with FASB 106.
(g) Each Plan which is a welfare plan (as defined in Section
3(1) of ERISA) to which Sections 601-609 of ERISA and Section 4980B of
the Code apply has been administered in compliance in all material
respects with such sections.
37
6.14 USE OF PROCEEDS.
The proceeds of the Loans hereunder will be used solely for the
purposes specified in Section 7.8. None of such proceeds will be used for the
acquisition of another Person unless the board of directors (or other comparable
governing body) or stockholders, as appropriate, of such Person has approved
such acquisition.
6.15 GOVERNMENT REGULATION.
(a) No proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any "margin
stock" within the meaning of Regulation U, or for the purpose of
purchasing or carrying or trading in any securities. If requested by
any Lender or the Administrative Agent, the Borrower will furnish to
the Administrative Agent and each Lender a statement to the foregoing
effect in conformity with the requirements of FR Form U-1 referred to
in Regulation U. No indebtedness being reduced or retired out of the
proceeds of the Loans was or will be incurred for the purpose of
purchasing or carrying any margin stock within the meaning of
Regulation U or any "margin security" within the meaning of Regulation
T. "Margin stock" within the meaning of Regulation U does not
constitute more than 25% of the value of the consolidated assets of the
Borrower and its Subsidiaries. None of the transactions contemplated by
the Credit Documents (including, without limitation, the direct or
indirect use of the proceeds of the Loans) will violate or result in a
violation of the Securities Act or the Exchange Act.
(b) Neither the Borrower nor any of its Subsidiaries is (i) an
"investment company" registered or required to be registered under the
Investment Company Act of 1940, as amended, and is not controlled by an
"investment company", or (ii) a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
(c) No director, executive officer or principal shareholder of
the Borrower or any of its Subsidiaries is a director, executive
officer or principal shareholder of any Lender. For the purposes hereof
the terms "director", "executive officer" and "principal shareholder"
(when used with reference to any Lender) have the respective meanings
assigned thereto in Regulation O.
6.16 DISCLOSURE.
Neither this Credit Agreement nor any financial statements delivered to
the Lenders nor any other document, certificate or statement furnished to the
Lenders by or on behalf of the Borrower in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein or herein, taken as a whole, not misleading.
38
6.17 ENVIRONMENTAL MATTERS.
Except as would not result or be reasonably expected to result in a
Material Adverse Effect: (a) each of the properties of the Borrower and its
Subsidiaries (the "Properties") and all operations at the Properties are in
compliance in all material respects with all applicable Environmental Laws, (b)
there is no violation of any Environmental Law with respect to the Properties or
the businesses operated by the Borrower or its Subsidiaries (the "Businesses"),
and (c) there are no conditions relating to the Businesses or Properties that
would reasonably be expected to give rise to a material liability under any
applicable Environmental Laws.
6.18 INSURANCE.
The Borrower and its Subsidiaries maintain insurance with responsible
and reputable insurance companies or associations in such amounts and covering
such risks as is usually carried by companies engaged in similar business and
owning similar properties in the same general areas in which the Borrower and
its Subsidiaries operate.
6.19 FRANCHISES, LICENSES, ETC.
The Borrower and its Subsidiaries possess (a) good title to, or the
legal right to use, all material properties and assets and (b) all material
franchises, certificates, licenses, permits and other authorizations, in each
case as are necessary for the operation of their respective businesses.
6.20 SECURED INDEBTEDNESS.
All of the secured indebtedness of the Borrower is set forth on
Schedule 6.20 or permitted by Section 8.6.
6.21 SUBSIDIARIES.
All Subsidiaries of the Borrower and the designation as to which such
Subsidiaries are Material Subsidiaries are set forth on Schedule 6.21. Schedule
6.21 may be updated from time to time by the Borrower.
SECTION 7.
AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Loans, together with interest, fees and
other obligations hereunder, have been paid in full and the Commitments shall
have terminated:
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7.1 INFORMATION COVENANTS.
The Borrower will furnish, or cause to be furnished, to the
Administrative Agent:
(a) Annual Financial Statements. As soon as available, and in
any event within 120 days after the close of each fiscal year of the
Borrower, a consolidated balance sheet and income statement of the
Borrower and its Subsidiaries, as of the end of such fiscal year,
together with retained earnings and a consolidated statement of cash
flows for such fiscal year setting forth in comparative form figures
for the preceding fiscal year, all such financial information described
above to be in reasonable form and detail and audited by independent
certified public accountants of recognized national standing reasonably
acceptable to the Administrative Agent and whose opinion shall be
furnished to the Administrative Agent, shall be to the effect that such
financial statements have been prepared in accordance with GAAP (except
for changes with which such accountants concur) and shall not be
limited as to the scope of the audit or qualified in any respect.
(b) Quarterly Financial Statements. As soon as available, and
in any event within 65 days after the close of each fiscal quarter of
the Borrower (other than the fourth fiscal quarter, in which case 120
days after the end thereof) a consolidated balance sheet and income
statement of the Borrower and its Subsidiaries, as of the end of such
fiscal quarter, together with a related consolidated statement of cash
flows for such fiscal quarter in each case setting forth in comparative
form figures for the corresponding period of the preceding fiscal year,
all such financial information described above to be in reasonable form
and detail and reasonably acceptable to the Administrative Agent, and
accompanied by a certificate of a Financial Officer of the Borrower to
the effect that such quarterly financial statements fairly present in
all material respects the financial condition of the Borrower and have
been prepared in accordance with GAAP, subject to changes resulting
from audit and normal year-end audit adjustments.
(c) Officer's Certificate. At the time of delivery of the
financial statements provided for in Sections 7.1(a) and 7.1(b) above,
a certificate of a Financial Officer of the Borrower, substantially in
the form of Exhibit 7.1(c), (i) demonstrating compliance with Section
7.2 by calculation thereof as of the end of each such fiscal period and
(ii) stating that no Default or Event of Default exists, or if any
Default or Event of Default does exist, specifying the nature and
extent thereof and what action the Borrower proposes to take with
respect thereto.
(d) Reports. Promptly upon transmission or receipt thereof,
copies of any filings and registrations with, and reports to or from,
any Governmental Authority, including, without limitation, the
Securities and Exchange Commission or any successor agency and any
utility regulatory body.
(e) Notices. Upon the Borrower obtaining knowledge thereof,
the Borrower will give written notice to the Administrative Agent
immediately of (i) the occurrence of a Default or Event of Default,
specifying the nature and existence thereof and what action the
40
Borrower proposes to take with respect thereto and (ii) the occurrence
of any of the following with respect to the Borrower or any Subsidiary:
(A) the pendency or commencement of any litigation, arbitration or
governmental proceeding against the Borrower or such Subsidiary which,
if adversely determined, would have or would be reasonably expected to
have a Material Adverse Effect or (B) the institution of any
proceedings against the Borrower or such Subsidiary with respect to, or
the receipt of notice by such Person of potential liability or
responsibility for violation or alleged violation of, any federal,
state or local law, rule or regulation (including, without limitation,
any Environmental Law), the violation of which would have or would be
reasonably expected to have a Material Adverse Effect.
(f) ERISA. Upon the Borrower or any ERISA Affiliate obtaining
knowledge thereof, the Borrower will give written notice to the
Administrative Agent and each of the Lenders promptly (and in any event
within five Business Days) of: (i) any event or condition, including,
but not limited to, any Reportable Event, that constitutes, or would be
reasonably expected to lead to, a Termination Event; (ii) any
communication from the PBGC stating its intention to terminate any Plan
or to have a trustee appointed to administer any Plan together with a
statement of the amount of liability, if any, incurred or expected to
be incurred by the Borrower or any Subsidiary in connection therewith;
(iii) with respect to any Multiemployer Plan, the receipt of notice as
prescribed in ERISA or otherwise of any withdrawal liability assessed
against the Borrower or any ERISA Affiliate, or of a determination that
any Multiemployer Plan is in reorganization or insolvent (both within
the meaning of Title IV of ERISA); (iv) the failure to make full
payment on or before the due date (including extensions) thereof of all
amounts which the Borrower or any of its Subsidiaries or ERISA
Affiliates is required to contribute to each Plan pursuant to its terms
and as required to meet the minimum funding standard set forth in ERISA
and the Code with respect thereto; or (v) any change in the funding
status of any Plan that would have or would be reasonably expected to
have a Material Adverse Effect; together, with a description of any
such event or condition or a copy of any such notice and a statement by
a officer of the Borrower briefly setting forth the details regarding
such event, condition, or notice, and the action, if any, which has
been or is being taken or is proposed to be taken by the Borrower with
respect thereto. Promptly upon request, the Borrower shall furnish the
Administrative Agent and each of the Lenders with such additional
information concerning any Plan as may be reasonably requested,
including, but not limited to, copies of each annual report/return
(Form 5500 series), as well as all schedules and attachments thereto
required to be filed with the Department of Labor and/or the Internal
Revenue Service pursuant to ERISA and the Code, respectively, for each
"plan year" (within the meaning of Section 3(39) of ERISA).
(g) Other Information. With reasonable promptness upon any
such request, such other information regarding the business, properties
or financial condition of the Borrower as the Administrative Agent or
the Required Lenders may reasonably request.
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7.2 DEBT TO CAPITALIZATION RATIO.
At all times, the Debt to Capitalization Ratio shall be less than or
equal to 0.70 to 1.0.
7.3 PRESERVATION OF EXISTENCE, FRANCHISES AND ASSETS.
The Borrower will, and will cause its Subsidiaries to, do all things
necessary to preserve and keep in full force and effect its existence, rights,
franchises and authority, except where failure to do so would not or would not
reasonably be expected to have a Material Adverse Effect. The Borrower will, and
will cause its Subsidiaries to, generally maintain its properties, real and
personal, in good condition, and the Borrower and its Subsidiaries shall not
waste or otherwise permit such properties to deteriorate, reasonable wear and
tear excepted, except where failure to do so would not or would not reasonably
be expected to have a Material Adverse Effect.
7.4 BOOKS AND RECORDS.
The Borrower will, and will cause its Subsidiaries to, keep complete
and accurate books and records of its transactions in accordance with good
accounting practices on the basis of GAAP (including the establishment and
maintenance of appropriate reserves).
7.5 COMPLIANCE WITH LAW.
The Borrower will, and will cause its Subsidiaries to, comply with, and
obtain all permits and licenses required by, all laws (including, without
limitation, all Environmental Laws and ERISA laws), rules, regulations and
orders, and all applicable restrictions imposed by all Governmental Authorities,
applicable to it and its property, if the failure to comply would have or would
be reasonably expected to have a Material Adverse Effect.
7.6 PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
The Borrower will, and will cause its Subsidiaries to, pay, settle or
discharge (a) all taxes, assessments and governmental charges or levies imposed
upon it, or upon its income or profits, or upon any of its properties, before
they shall become delinquent, (b) all lawful claims (including claims for labor,
materials and supplies) which, if unpaid, might give rise to a Lien upon any of
its properties, and (c) all of its other indebtedness as it shall become due (to
the extent such repayment is not otherwise prohibited by this Credit Agreement);
provided, however, that the Borrower shall not be required to pay any such tax,
assessment, charge, levy, claim or indebtedness which is being contested in good
faith by appropriate action and as to which adequate reserves therefor, if
required, have been established in accordance with GAAP, unless the failure to
make any such payment (i) would give rise to an immediate right to foreclose or
collect on a Lien securing such amounts or (ii) would have or would reasonably
be expected to have a Material Adverse Effect.
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7.7 INSURANCE.
The Borrower will, and will cause its Subsidiaries to, at all times
maintain in full force and effect insurance (including worker's compensation
insurance, liability insurance, casualty insurance and business interruption
insurance) with responsible and reputable insurance companies in such amounts,
covering such risks and liabilities and with such deductibles or self-insurance
retentions as are in accordance with normal industry practice.
7.8 USE OF PROCEEDS.
The proceeds of the Loans may be used solely (a) to refinance the
indebtedness under the Existing
Revolving Credit Agreement and (b) for working
capital, capital expenditures and other lawful corporate purposes of the
Borrower.
7.9 AUDITS/INSPECTIONS.
Upon reasonable prior notice and during normal business hours, the
Borrower will permit representatives appointed by the Administrative Agent,
including, without limitation, independent accountants, agents, attorneys, and
appraisers to visit and inspect the Borrower's and its Subsidiaries' property,
including their books and records, their accounts receivable and inventory, the
Borrower's and its Subsidiaries' facilities and their other business assets, and
to make photocopies or photographs thereof and to write down and record any
information such representative obtains and shall permit the Administrative
Agent or its representatives to investigate and verify the accuracy of
information provided to the Lenders and to discuss all such matters with the
officers, employees and representatives of the Borrower and its Subsidiaries.
SECTION 8.
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Loans, together with interest, fees and
other obligations hereunder, have been paid in full and the Commitments shall
have terminated:
8.1 NATURE OF BUSINESS.
The Borrower will not materially alter the character of its business
from that conducted as of the Closing Date.
8.2 CONSOLIDATION AND MERGER.
The Borrower will not (a) enter into any transaction of merger, or (b)
consolidate, liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution); provided that, so long as no Default or Event of Default shall
exist or be caused thereby, a Person may be merged or
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consolidated with or into the Borrower so long as the Borrower shall be the
continuing or surviving corporation.
8.3 SALE OR LEASE OF ASSETS.
Within any twelve month period, the Borrower will not, nor will it
permit any Subsidiary to, convey, sell, lease, transfer or otherwise dispose of
assets, business or operations with a net book value in excess of 25% of Total
Assets as calculated as of the end of the most recent fiscal quarter.
8.4 ARM'S-LENGTH TRANSACTIONS.
The Borrower will not, nor will it permits its Subsidiaries to, enter
into any transaction or series of transactions, whether or not in the ordinary
course of business, with any officer, director or Affiliate other than on terms
and conditions substantially as favorable as would be obtainable in a comparable
arm's-length transaction with a Person other than an officer, director or
Affiliate.
8.5 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS.
The Borrower will not (a) change its fiscal year or (b) in any manner
that would reasonably be expected to materially adversely affect the rights of
the Lenders, change its organizational documents or its bylaws; it being
understood that the Borrower's shareholders may approve an amendment to the
Borrower's Articles of Incorporation to permit the issuance of Preferred
Securities.
8.6 LIENS.
The Borrower will not, nor will it permit any of its Material
Subsidiaries to, contract, create, incur, assume or permit to exist any Lien
with respect to any of its property or assets of any kind (whether real or
personal, tangible or intangible), whether now owned or after acquired, except
for the following: (a) Liens securing Borrower Obligations, (b) Liens for taxes
not yet due or Liens for taxes being contested in good faith by appropriate
action and for which adequate reserves, if required, determined in accordance
with GAAP have been established (and as to which the property subject to any
such Lien is not yet subject to foreclosure, sale or loss on account thereof),
(c) Liens in respect of property imposed by law arising in the ordinary course
of business such as materialmen's, mechanics', warehousemen's, carrier's,
landlords' and other nonconsensual statutory Liens which are not yet due and
payable, which have been in existence less than 90 days or which are being
contested in good faith by appropriate action and for which adequate reserves,
if required, determined in accordance with GAAP have been established (and as to
which the property subject to any such Lien is not yet subject to foreclosure,
sale or loss on account thereof), (d) pledges or deposits made in the ordinary
course of business to secure payment of worker's compensation insurance,
unemployment insurance, pensions or social security programs, (e) Liens arising
from good faith deposits in connection with or to secure performance of tenders,
bids, leases, government contracts, performance and return-of-money bonds and
other similar obligations incurred in the ordinary course of business (other
than obligations in respect of the payment of borrowed money),
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(f) Liens arising from good faith deposits in connection with or to secure
performance of statutory obligations and surety and appeal bonds, (g) easements,
rights-of-way, restrictions (including zoning restrictions), minor defects or
irregularities in title and other similar charges or encumbrances not, in any
material respect, impairing the use of the encumbered property for its intended
purposes, (h) judgment Liens that would not constitute an Event of Default, (i)
Liens arising by virtue of any statutory or common law provision relating to
banker's liens, rights of setoff or similar rights as to deposit accounts or
other funds maintained with a creditor depository institution, (j) any Lien on
any assets securing indebtedness incurred or assumed for the purpose of
financing all or any part of the cost of acquiring such assets; provided that
such Lien attaches to such asset concurrently with or within 90 days after the
acquisition thereof, (k) any Lien on any asset of any Person existing at the
time such Person is merged or consolidated with or into the Borrower or one of
its Subsidiaries and not created in contemplation of such event, (l) any Lien
existing on any asset prior to the acquisition thereof by the Borrower or one of
its Subsidiaries and not created in contemplation of such acquisition, (m) any
Lien (whether such Lien applies to current assets or after-acquired property, or
both) on any assets of the Borrower or such Material Subsidiary created pursuant
to the 1957 Indenture or the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇; provided that any Lien on any
assets of the Borrower or such Material Subsidiary that are specifically
excluded as collateral under such Indentures shall not be deemed to be a
Permitted Lien hereunder, (n) any Lien (whether such Lien applies to current
assets or after-acquired property, or both) on any Fixed Assets of the Borrower
or such Material Subsidiaries created or arising at any time pursuant to or
under (i) Section 4.08 of each of the 1987 Note Purchase Agreements and the 1989
Note Purchase Agreement, (ii) Section 4.8 of each of the 1991 Note Purchase
Agreement, the 1992 Note Purchase Agreement and the 1994 Note Purchase Agreement
or (iii) any similar provision utilizing the same or a similar cash flow-to-debt
test, contained in any other loan agreement that the Borrower may enter into
after the Effective Date, which agreement grants a loan or extends credit to the
Borrower with a maturity date in excess of one year, (o) any Lien on the assets
of the Borrower pursuant to Section 803 of the 1998 Indenture or Section 803 of
the 2001 Indenture, if placed on the property of the Borrower on a pro rata
basis only with other Liens that may be placed on the properties of the Borrower
in the future, (p) Liens on Fixed Assets not otherwise permitted by this Credit
Agreement securing indebtedness in the aggregate (at the time such Liens are
created) not in excess of five percent (5%) of Consolidated Net Property, and
(q) any extension, renewal or replacement (or successive extensions, renewals or
replacements), as a whole or in part, of any Liens referred to in the foregoing
clauses (a) through (p) for amounts not exceeding the principal amount of the
indebtedness secured by the Lien so extended, renewed or replaced; provided that
such extension, renewal or replacement Lien is limited to all or a part of the
same property or assets that were covered by the Lien extended, renewed or
replaced (plus improvements on such property or assets).
SECTION 9.
EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
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(a) Payment. The Borrower shall default in the payment (i)
when due of any principal of any of the Loans or (ii) within one
Business Day of when due of any interest on the Loans or of any fees or
other amounts owing hereunder, under any of the other Credit Documents
or in connection herewith.
(b) Representations. Any representation, warranty or statement
made or deemed to be made by the Borrower herein, in any of the other
Credit Documents, or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto shall prove untrue
in any material respect on the date as of which it was deemed to have
been made.
(c) Covenants. The Borrower shall:
(i) default in the due performance or observance of
any term, covenant or agreement contained in Sections 7.2,
7.3, 7.4, 7.5, 7.9 or 8.1 through 8.6 inclusive; or
(ii) default in the due performance or observance by
it of any term, covenant or agreement contained in Section 7.1
and such default shall continue unremedied for a period of
five Business Days after the earlier of the Borrower becoming
aware of such default or notice thereof given by the
Administrative Agent; or
(iii) default in the due performance or observance by
it of any term, covenant or agreement (other than those
referred to in subsections (a), (b), (c)(i), or (c)(ii) of
this Section 9.1) contained in this Credit Agreement or any
other Credit Document and such default shall continue
unremedied for a period of at least 30 days after the earlier
of the Borrower becoming aware of such default or notice
thereof given by the Administrative Agent.
(d) Credit Documents. The Borrower shall default in the due
performance or observance of any term, covenant or agreement in any of
the other Credit Documents and such default shall continue unremedied
for a period of at least 30 days after the earlier of the Borrower
becoming aware of such default or notice thereof given by the
Administrative Agent or (ii) any Credit Document shall fail to be in
full force and effect or the Borrower shall so assert or any Credit
Document shall fail to give the Administrative Agent and/or the Lenders
the rights, powers and privileges purported to be created thereby.
(e) Bankruptcy, etc. The occurrence of any of the following
with respect to the Borrower or any of its Material Subsidiaries: (i) a
court or governmental agency having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Borrower or any of
its Material Subsidiaries in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or appoint a receiver, liquidator,
46
assignee, custodian, trustee, sequestrator or similar official of the
Borrower or any of its Material Subsidiaries or for any substantial
part of its property or order the winding up or liquidation of its
affairs; or (ii) an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect is commenced
against the Borrower or any of its Material Subsidiaries and such
petition remains unstayed and in effect for a period of 60 consecutive
days; or (iii) the Borrower or any of its Material Subsidiaries shall
commence a voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or consent to the
entry of an order for relief in an involuntary case under any such law,
or consent to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of such Person or any substantial part of its property or make
any general assignment for the benefit of creditors; or (iv) the
Borrower or any of its Material Subsidiaries shall admit in writing its
inability to pay its debts generally as they become due or any action
shall be taken by such Person in furtherance of any of the aforesaid
purposes.
(f) Defaults under Other Agreements. With respect to (x) any
secured indebtedness of the Borrower or (y) any other indebtedness in
excess of $20,000,000 (other than indebtedness outstanding under this
Credit Agreement) of the Borrower (A) the Borrower shall (1) default in
any payment (beyond the applicable grace period with respect thereto,
if any) with respect to any such indebtedness, or (2) default (after
giving effect to any applicable grace period) in the observance or
performance of any covenant or agreement relating to such indebtedness
or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event or condition shall occur or
condition exist, the effect of which default or other event or
condition is to cause, or permit, the holder of the holders of such
indebtedness (or trustee or agent on behalf of such holders) to cause
(determined without regard to whether any notice or lapse of time is
required) any such indebtedness to become due prior to its stated
maturity; or (B) any such indebtedness shall be declared due and
payable, or required to be prepaid other than by a regularly scheduled
required prepayment prior to the stated maturity thereof; or (C) any
such indebtedness shall mature and remain unpaid.
(g) Judgments. One or more judgments, orders, or decrees shall
be entered against the Borrower involving a liability of $20,000,000 or
more, in the aggregate, (to the extent not paid or covered by insurance
provided by a carrier who has acknowledged coverage) and such
judgments, orders or decrees shall continue unsatisfied, undischarged
and unstayed for a period ending on the first to occur of (i) the last
day on which such judgment, order or decree becomes final and
unappealable and, where applicable, with the status of a judicial lien
or (ii) 60 days; provided that if such judgment, order or decree
provides for periodic payments over time then the Borrower shall have a
grace period of 30 days with respect to each such periodic payment.
(h) ERISA. The occurrence of any of the following events or
conditions if any of the same would be reasonably expected to result in
a liability of an amount greater than or equal to $20,000,000: (A) any
"accumulated funding deficiency," as such term is defined in Section
302 of ERISA and Section 412 of the Code, whether or not waived,
47
shall exist with respect to any Plan, or any lien shall arise on the
assets of the Borrower or any ERISA Affiliate in favor of the PBGC or a
Plan; (B) a Termination Event shall occur with respect to a Single
Employer Plan, which is, in the reasonable opinion of the
Administrative Agent, likely to result in the termination of such Plan
for purposes of Title IV of ERISA; (C) a Termination Event shall occur
with respect to a Multiemployer Plan or Multiple Employer Plan, which
is, in the reasonable opinion of the Administrative Agent, likely to
result in (i) the termination of such Plan for purposes of Title IV of
ERISA, or (ii) the Borrower or any ERISA Affiliate incurring any
liability in connection with a withdrawal from, reorganization of
(within the meaning of Section 4241 of ERISA), or insolvency (within
the meaning of Section 4245 of ERISA) of such Plan; or (D) any
prohibited transaction (within the meaning of Section 406 of ERISA or
Section 4975 of the Code) or breach of fiduciary responsibility shall
occur which would be reasonably expected to subject the Borrower or any
ERISA Affiliate to any liability under Sections 406, 409, 502(i), or
502(l) of ERISA or Section 4975 of the Code, or under any agreement or
other instrument pursuant to which the Borrower or any ERISA Affiliate
has agreed or is required to indemnify any person against any such
liability.
(i) Change of Control. The occurrence of any Change of
Control.
9.2 ACCELERATION; REMEDIES.
Upon the occurrence and during the continuation of an Event of Default,
the Administrative Agent may, with the consent of the Required Lenders, and
shall, upon the request and direction of the Required Lenders, by written notice
to the Borrower take any of the following actions without prejudice to the
rights of the Administrative Agent or any Lender to enforce its claims against
the Borrower, except as otherwise specifically provided for herein:
(i) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(ii) Acceleration of Loans. Declare the unpaid amount of all
Borrower Obligations to be due whereupon the same shall be immediately
due and payable without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower.
(iii) Enforcement of Rights. Enforce any and all rights and
interests created and existing under the Credit Documents, including,
without limitation, all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(e) shall occur, then the Commitments shall automatically terminate and all
Loans, all accrued interest in respect thereof, all accrued and unpaid fees and
other indebtedness or obligations owing to the Lenders and the Administrative
Agent hereunder shall immediately become due and payable without the giving of
any notice or other action by the Administrative Agent or the Lenders.
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Notwithstanding the fact that enforcement powers reside primarily with the
Administrative Agent, each Lender has, to the extent permitted by law, a
separate right of payment and shall be considered a separate "creditor" holding
a separate "claim" within the meaning of Section 101(5) of the Bankruptcy Code
or any other insolvency statute.
9.3 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.
Notwithstanding any other provisions of this Credit Agreement, after
the occurrence of an Event of Default, all amounts collected or received by the
Administrative Agent or any Lender on account of amounts outstanding under any
of the Credit Documents shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Administrative Agent or any of the Lenders in connection with
enforcing the rights of the Lenders under the Credit Documents, pro
rata as set forth below;
SECOND, to payment of any fees owed to the Administrative
Agent, or any Lender, pro rata as set forth below;
THIRD, to the payment of all accrued interest payable to the
Lenders hereunder, pro rata as set forth below;
FOURTH, to the payment of the outstanding principal amount of
the Loans, pro rata as set forth below;
FIFTH, to all other obligations which shall have become due
and payable under the Credit Documents and not repaid pursuant to
clauses "FIRST" through "FOURTH" above; and
SIXTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category and (b) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans held
by such Lender bears to the aggregate then outstanding Loans) of amounts
available to be applied.
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SECTION 10
AGENCY PROVISIONS
10.1 APPOINTMENT.
Each Lender hereby designates and appoints Bank of America, N.A. as
agent of such Lender to act as specified herein and the other Credit Documents,
and each such Lender hereby authorizes the Administrative Agent, as the agent
for such Lender, to take such action on its behalf under the provisions of this
Credit Agreement and the other Credit Documents and to exercise such powers and
perform such duties as are expressly delegated by the terms hereof and of the
other Credit Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere
herein and in the other Credit Documents, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein and
therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Credit Agreement or any of the other Credit Documents, or
shall otherwise exist against the Administrative Agent. The provisions of this
Section 10.1 are solely for the benefit of the Administrative Agent and the
Lenders and the Borrower shall not have any rights as a third party beneficiary
of the provisions hereof. In performing its functions and duties under this
Credit Agreement and the other Credit Documents, the Administrative Agent shall
act solely as agent of the Lenders and does not assume and shall not be deemed
to have assumed any obligation or relationship of agency or trust with or for
the Borrower. Any agent named herein (other than the Administrative Agent) shall
have no duties or obligations whatsoever under this Credit Agreement or the
other Credit Documents.
10.2 DELEGATION OF DUTIES.
The Administrative Agent may execute any of its duties hereunder or
under the other Credit Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
10.3 EXCULPATORY PROVISIONS.
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be liable to any Lender
for any action lawfully taken or omitted to be taken by it or such Person under
or in connection herewith or in connection with any of the other Credit
Documents (except for its or such Person's own gross negligence or willful
misconduct), or responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Borrower
contained herein or in any of the other Credit Documents or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection herewith or in connection
with the other Credit Documents, or enforceability or sufficiency therefor of
any of the other Credit Documents, or for any failure of the Borrower to perform
its obligations hereunder or thereunder. The Administrative
50
Agent shall not be responsible to any Lender for the effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Credit
Agreement, or any of the other Credit Documents or for any representations,
warranties, recitals or statements made herein or therein or made by the
Borrower in any written or oral statement or in any financial or other
statements, instruments, reports, certificates or any other documents in
connection herewith or therewith furnished or made by the Administrative Agent
to the Lenders or by or on behalf of the Borrower to the Administrative Agent or
any Lender or be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements
contained herein or therein or as to the use of the proceeds of the Loans or of
the existence or possible existence of any Default or Event of Default or to
inspect the properties, books or records of the Borrower. The Administrative
Agent is not a trustee for the Lenders and owes no fiduciary duty to the
Lenders.
10.4 RELIANCE ON COMMUNICATIONS.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it in
good faith to be genuine and correct and to have been signed, sent or made by
the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower, independent accountants
and other experts selected by the Administrative Agent with reasonable care).
The Administrative Agent may deem and treat the Lenders as the owner of its
interests hereunder for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Administrative
Agent in accordance with Section 11.3(b). The Administrative Agent shall be
fully justified in failing or refusing to take any action under this Credit
Agreement or under any of the other Credit Documents unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder or under any of the other Credit Documents in accordance with a
request of the Required Lenders (or to the extent specifically provided in
Section 11.6, all the Lenders) and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Lenders (including their
successors and assigns).
10.5 NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or the Borrower referring
to the Credit Document, describing such Default or Event of Default and stating
that such notice is a "notice of default." In the event that the Administrative
Agent receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders.
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10.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or affiliates has made any representations or warranties to it and that no act
by the Administrative Agent or any affiliate thereof hereinafter taken,
including any review of the affairs of the Borrower, shall be deemed to
constitute any representation or warranty by the Administrative Agent to any
Lender. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
assets, operations, property, financial and other conditions, prospects and
creditworthiness of the Borrower and made its own decision to make its
Extensions of Credit hereunder and enter into this Credit Agreement. Each Lender
also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Credit Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, assets, operations, property, financial and
other conditions, prospects and creditworthiness of the Borrower. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, assets, property,
financial or other conditions, prospects or creditworthiness of the Borrower
which may come into the possession of the Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
10.7 INDEMNIFICATION.
Each Lender agrees to indemnify the Administrative Agent in its
capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to its
Commitment Percentage, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including without
limitation at any time following the payment in full of the Borrower
Obligations) be imposed on, incurred by or asserted against the Administrative
Agent in its capacity as such in any way relating to or arising out of this
Credit Agreement or the other Credit Documents or any documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or willful misconduct of the Administrative
Agent. If any indemnity furnished to the Administrative Agent for any purpose
shall, in the opinion of the Administrative Agent, be insufficient or become
impaired, the Administrative Agent may call for additional indemnity and cease,
or not commence, to do the acts indemnified against until such additional
indemnity is furnished. The agreements in this Section 10.7 shall survive the
payment of the Borrower Obligations and all other amounts payable hereunder and
under the other Credit Documents and the termination of the Commitments.
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10.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
The Administrative Agent and its Affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower as
though the Administrative Agent were not Administrative Agent hereunder. With
respect to the Loans made and all Borrower Obligations owing to it, the
Administrative Agent shall have the same rights and powers under this Credit
Agreement as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
10.9 SUCCESSOR AGENT.
The Administrative Agent may, at any time, resign upon 20 days written
notice to the Lenders. Upon any such resignation, the Required Lenders shall
have the right to appoint a successor Administrative Agent, which successor
shall be reasonably acceptable to the Borrower; provided that the Borrower shall
have no right to approve such successor during the existence and continuation of
a Default or Event of Default. If no successor Administrative Agent shall have
been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the notice of resignation, then the retiring
Administrative Agent shall select a successor Administrative Agent; provided
such successor is an Eligible Assignee (or if no Eligible Assignee shall have
been so appointed by the retiring Administrative Agent and shall have accepted
such appointment, then the Lenders shall perform all obligations of the retiring
Administrative Agent hereunder until such time, if any, as a successor
Administrative Agent shall have been appointed and shall have accepted such
appointment as provided for above). Upon the acceptance of any appointment as an
Administrative Agent hereunder by a successor, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations as an
Administrative Agent, as appropriate, under this Credit Agreement and the other
Credit Documents and the provisions of this Section 10 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was an
Administrative Agent under this Credit Agreement.
SECTION 11.
MISCELLANEOUS
11.1 NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device), (c)
the Business Day following the day on which the same has been delivered to a
reputable national overnight air courier service, or (d) the third Business Day
53
following the day on which the same is sent by certified or registered mail,
postage prepaid, in each case to the respective parties at the address or
telecopy numbers set forth on Schedule 11.1, or at such other address as such
party may specify by written notice to the other parties hereto.
11.2 RIGHT OF SET-OFF.
In addition to any rights now or hereafter granted under applicable law
or otherwise, and not by way of limitation of any such rights, upon the
occurrence and during the continuation of an Event of Default and the
commencement of remedies described in Section 9.2, each Lender is authorized at
any time and from time to time, without presentment, demand, protest or other
notice of any kind (all of which rights being hereby expressly waived), to
set-off and to appropriate and apply any and all deposits (general or special)
and any other indebtedness at any time held or owing by such Lender (including,
without limitation branches, agencies or Affiliates of such Lender wherever
located) to or for the credit or the account of the Borrower against obligations
and liabilities of the Borrower to the Lenders hereunder, under the Notes or the
other Credit Documents, irrespective of whether the Administrative Agent or the
Lenders shall have made any demand hereunder and although such obligations,
liabilities or claims, or any of them, may be contingent or unmatured, and any
such set-off shall be deemed to have been made immediately upon the occurrence
of an Event of Default even though such charge is made or entered on the books
of such Lender subsequent thereto. The Borrower hereby agrees that any Person
purchasing a participation in the Loans and Commitments hereunder pursuant to
Section 11.3(c) may exercise all rights of set-off with respect to its
participation interest as fully as if such Person were a Lender hereunder.
11.3 BENEFIT OF AGREEMENT.
(a) Generally. This Credit Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided that the Borrower may not
assign and transfer any of its interests without the prior written
consent of the Lenders; and provided further that the rights of each
Lender to transfer, assign or grant participations in its rights and/or
obligations hereunder shall be limited as set forth below in this
Section 11.3.
(b) Assignments. Each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under
this Credit Agreement (including, without limitation, all or a portion
of its Loans, its Notes, and its Commitment); provided, however, that:
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to another
Lender or an assignment of all of a Lender's rights and
obligations under this Credit Agreement, any such partial
assignment shall be in an amount at least equal to $3,000,000
(or, if less, the remaining amount of the Commitment being
assigned by such Lender) and an integral multiple of
$1,000,000 in excess thereof;
54
(iii) each such assignment by a Lender shall be of a
constant, and not varying, percentage of all of its rights and
obligations under this Credit Agreement and the Notes; and
(iv) the parties to such assignment shall execute and
deliver to the Administrative Agent for its acceptance an
Assignment Agreement in substantially the form of Exhibit
11.3(b), together with a processing fee from the assignor of
$5,000.
Upon execution, delivery, and acceptance of such Assignment Agreement,
the assignee thereunder shall be a party hereto and, to the extent of
such assignment, have the obligations, rights, and benefits of a Lender
hereunder and the assigning Lender shall, to the extent of such
assignment, relinquish its rights and be released from its obligations
under this Credit Agreement. Upon the consummation of any assignment
pursuant to this Section 11.3(b), the assignor, the Administrative
Agent and the Borrower shall make appropriate arrangements so that, if
required, new Notes are issued to the assignor and the assignee. If the
assignee is not incorporated under the laws of the United States of
America or a state thereof; it shall deliver to the Borrower and the
Administrative Agent certification as to exemption from deduction or
withholding of taxes in accordance with Section 4.4.
By executing and delivering an assignment agreement in
accordance with this Section 11.3(b), the assigning Lender thereunder
and the assignee thereunder shall be deemed to confirm to and agree
with each other and the other parties hereto as follows: (A) such
assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim
created by such assigning Lender and the assignee warrants that it is
an Eligible Assignee; (B) except as set forth in clause (A) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit Agreement,
any of the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this
Credit Agreement, any of the other Credit Documents or any other
instrument or document furnished pursuant hereto or thereto or the
financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under this Credit Agreement, any
of the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto; (C) such assignee represents and
warrants that it is legally authorized to enter into such assignment
agreement; (D) such assignee confirms that it has received a copy of
this Credit Agreement, the other Credit Documents and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such assignment agreement;
(E) such assignee will independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Lender, and
based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not
taking action under this Credit Agreement and the other Credit
55
Documents; (F) such assignee appoints and authorizes the Administrative
Agent to take such action on its behalf and to exercise such powers
under this Credit Agreement or any other Credit Document as are
delegated to the Administrative Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental thereto; and (G)
such assignee agrees that it will perform in accordance with their
terms all the obligations which by the terms of this Credit Agreement
and the other Credit Documents are required to be performed by it as a
Lender.
(c) Register. The Administrative Agent shall maintain a copy
of each Assignment Agreement delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders
and the Commitment of, and principal amount of the Loans owing to, each
Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Credit Agreement. The Register shall
be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(d) Acceptance. Upon its receipt of an Assignment Agreement
executed by the parties thereto, together with any Note subject to such
assignment and payment of the processing fee, the Administrative Agent
shall, if such Assignment Agreement has been completed and is in
substantially the form of Exhibit 11.3(b), (i) accept such Assignment
Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the parties thereto.
(e) Participations. Each Lender may sell participations to one
or more Persons in all or a portion of its rights, obligations or
rights and obligations under this Credit Agreement (including all or a
portion of its Commitment, its Notes and its Loans); provided, however,
that (i) such Lender's obligations under this Credit Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii)
the participant shall be entitled to the benefit of the yield
protection provisions contained in Sections 4.1 through 4.4, inclusive,
and the right of set-off contained in Section 11.2, and (iv) the
Borrower shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Credit
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to its Loans and its Notes and to
approve any amendment, modification, or waiver of any provision of this
Credit Agreement (other than amendments, modifications, or waivers
decreasing the amount of principal of or the rate at which interest is
payable on such Loans or Notes, extending any scheduled principal
payment date or date fixed for the payment of interest on such Loans or
Notes, or extending its Commitment).
(f) Nonrestricted Assignments. Notwithstanding any other
provision set forth in this Credit Agreement, any Lender may at any
time assign and pledge all or any portion of its Loans and its Notes to
any Federal Reserve Bank as collateral security
56
pursuant to Regulation A and any Operating Circular issued by such
Federal Reserve Bank. No such assignment shall release the assigning
Lender from its obligations hereunder.
(g) Information. Any Lender may furnish any information
concerning the Borrower in the possession of such Lender from time to
time to assignees and participants (including prospective assignees and
participants).
11.4 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Administrative Agent or any
Lender in exercising any right, power or privilege hereunder or under any other
Credit Document and no course of dealing between the Borrower and the
Administrative Agent or any Lender shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power or privilege hereunder or
under any other Credit Document preclude any other or further exercise thereof
or the exercise of any other right, power or privilege hereunder or thereunder.
The rights and remedies provided herein are cumulative and not exclusive of any
rights or remedies which the Administrative Agent or any Lender would otherwise
have. No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent
or the Lenders to any other or further action in any circumstances without
notice or demand.
11.5 PAYMENT OF EXPENSES, ETC.
The Borrower agrees to: (i) pay all reasonable out-of-pocket costs and
expenses of the Administrative Agent and Banc of America Securities LLC ("BAS")
in connection with (A) the negotiation, preparation, execution and delivery and
administration of this Credit Agreement and the other Credit Documents and the
documents and instruments referred to therein (including, without limitation,
the reasonable fees and expenses of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC, special counsel to
the Administrative Agent) and (B) any amendment, waiver or consent relating
hereto and thereto including, but not limited to, any such amendments, waivers
or consents resulting from or related to any work-out, renegotiation or
restructure relating to the performance by the Borrower under this Credit
Agreement, (ii) pay all reasonable out-of-pocket costs and expenses of the
Administrative Agent and the Lenders in connection with (A) enforcement of the
Credit Documents and the documents and instruments referred to therein
(including, without limitation, in connection with any such enforcement, the
reasonable fees and disbursements of counsel for the Administrative Agent and
each of the Lenders (including the allocated cost of internal counsel)) and (B)
any bankruptcy or insolvency proceeding of the Borrower and (iii) indemnify the
Administrative Agent, BAS and each Lender, its officers, directors, employees,
representatives and agents from and hold each of them harmless against any and
all losses, liabilities, claims, damages or expenses incurred by any of them as
a result of, or arising out of, or in any way related to, or by reason of, any
investigation, litigation or other proceeding (whether or not the Administrative
Agent, BAS or any Lender is a party thereto) related to the entering into and/or
performance of any Credit Document or the use of proceeds of any Loans
(including other extensions of credit) hereunder or the consummation of any
other transactions contemplated in any Credit Document, including, without
limitation, the
57
reasonable fees and disbursements of counsel (including the allocated cost of
internal counsel) incurred in connection with any such investigation, litigation
or other proceeding (but excluding any such losses, liabilities, claims, damages
or expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified).
11.6 AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement, nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing and signed by the Required Lenders and the Borrower; provided that no
such amendment, change, waiver, discharge or termination shall without the
consent of each Lender affected thereby:
(a) extend the Maturity Date, or postpone or extend the time
for any payment or prepayment of principal;
(b) reduce the rate or extend the time of payment of interest
(other than as a result of waiving the applicability of any
post-default increase in interest rates) thereon or fees or other
amounts payable hereunder;
(c) reduce or waive the principal amount of any Loan;
(d) increase or extend the Commitment of a Lender (it being
understood and agreed that a waiver of any Default or Event of Default
or a waiver of any mandatory reduction in the Commitments shall not
constitute a change in the terms of any Commitment of any Lender);
(e) release the Borrower from its obligations under the Credit
Documents;
(f) amend, modify or waive any provision of this Section 11.6
or Section 3.6, 3.8, 9.1(a), 11.2, 11.3 or 11.5.
(g) reduce any percentage specified in, or otherwise modify,
the definition of Required Lenders; or
(h) consent to the assignment or transfer by the Borrower of
any of its rights and obligations under (or in respect of) the Credit
Documents.
No provision of Section 10 may be amended or modified without the consent of the
Administrative Agent.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any reorganization plan that affects the Loans, and each
Lender acknowledges that the provisions of Section 1126(c)
58
of the Bankruptcy Code supersedes the unanimous consent provisions set forth
herein and (y) the Required Lenders may consent to allow the Borrower to use
cash collateral in the context of a bankruptcy or insolvency proceeding.
11.7 COUNTERPARTS/TELECOPY.
This Credit Agreement may be executed in any number of counterparts,
each of which where so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. Delivery of executed
counterparts by telecopy shall be as effective as an original and shall
constitute a representation that an original will be delivered.
11.8 HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 DEFAULTING LENDER.
Each Lender understands and agrees that if such Lender is a Defaulting
Lender then it shall not be entitled to vote on any matter requiring the consent
of the Required Lenders or to object to any matter requiring the consent of all
the Lenders; provided, however, that all other benefits and obligations under
the Loan Documents shall apply to such Defaulting Lender.
11.10 SURVIVAL OF INDEMNIFICATION AND REPRESENTATIONS AND WARRANTIES.
All indemnities set forth herein and all representations and warranties
made herein shall survive the execution and delivery of this Credit Agreement,
the making of the Loans, and the repayment of the Loans and other obligations
and the termination of the Commitments hereunder.
11.11 GOVERNING LAW; VENUE.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF
NEW YORK.
(b) Any legal action or proceeding with respect to this Credit
Agreement or any other Credit Document may be brought in the courts of
the State of
New York or of the United States for the Southern District
of
New York, and, by execution and delivery of this Credit Agreement,
the Borrower hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of such
courts. The Borrower further irrevocably consents to the service of
process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to it at the address for notices pursuant to
59
Section 11.1, such service to become effective 10 days after such
mailing. Nothing herein shall affect the right of a Lender to serve
process in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against the Borrower in any other
jurisdiction. The Borrower agrees that a final judgment in any action
or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided
by law; provided that nothing in this Section 11.11(b) is intended to
impair the Borrower's right under applicable law to appeal or seek a
stay of any judgment.
(c) The Borrower hereby irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with
this Credit Agreement or any other Credit Document in the courts
referred to in subsection (a) hereof and hereby further irrevocably
waives and agrees not to plead or claim in any such court that any such
action or proceeding brought in any such court has been brought in an
inconvenient forum.
11.12 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
11.13 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.14 FURTHER ASSURANCES.
The Borrower agrees, upon the request of the Administrative Agent, to
promptly take such actions, as reasonably requested, as are necessary to carry
out the intent of this Credit Agreement and the other Credit Documents.
11.15 ENTIRETY.
This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
60
11.16 BINDING EFFECT; CONTINUING AGREEMENT.
(a) This Credit Agreement shall become effective at such time
when all of the conditions set forth in Section 5.1 have been satisfied
or waived by the Lenders and it shall have been executed by the
Borrower, the Administrative Agent and the Lenders, and thereafter this
Credit Agreement shall be binding upon and inure to the benefit of the
Borrower, the Administrative Agent and each Lender and their respective
successors and assigns. The Borrower and the Lenders party to the
Existing
Revolving Credit Agreement each hereby agrees that, at such
time as this Credit Agreement shall have become effective pursuant to
the terms of the immediately preceding sentence, the Existing
Revolving
Credit Agreement automatically shall be deemed terminated and the
Borrowers and the Lenders party to the Existing
Revolving Credit
Agreement shall no longer have any obligations thereunder (other than
those obligations in the Existing Revolving Credit Agreement that
expressly survive the termination thereof).
(b) This Credit Agreement shall be a continuing agreement and
shall remain in full force and effect until all Loans, interest, fees
and other Borrower Obligations have been paid in full and all
Commitments have been terminated. Upon termination, the Borrower shall
have no further obligations (other than the indemnification provisions
that survive) under the Credit Documents; provided that should any
payment, in whole or in part, of the Borrower Obligations be rescinded
or otherwise required to be restored or returned by the Administrative
Agent or any Lender, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, then the Credit Documents
shall automatically be reinstated and all amounts required to be
restored or returned and all costs and expenses incurred by the
Administrative Agent or any Lender in connection therewith shall be
deemed included as part of the Borrower Obligations.
[Remainder of Page Intentionally Left Blank]
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Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.
BORROWER:
ATMOS ENERGY CORPORATION,
A Texas and Virginia corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: V.P., Corporate Development and
Treasurer
-----------------------------------
Signature Page to
Atmos Energy Corporation
Amended and Restated Revolving Credit Agreement
LENDERS: BANK OF AMERICA, N.A.
individually in its capacity as a
Lender and in its capacity as
Administrative Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
-----------------------------------
Signature Page to
Atmos Energy Corporation
Amended and Restated Revolving Credit Agreement
BANK ONE, NA (MAIN OFFICE-CHICAGO)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Title: Director, Capital Markets
-----------------------------------
Signature Page to
Atmos Energy Corporation
Amended and Restated Revolving Credit Agreement
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
-----------------------------------
Signature Page to
Atmos Energy Corporation
Amended and Restated Revolving Credit Agreement
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: Managing Director
-----------------------------------
Signature Page to
Atmos Energy Corporation
Amended and Restated Revolving Credit Agreement
SOCIETE GENERALE
By: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
------------------------------------
Title: Vice President
-----------------------------------
Signature Page to
Atmos Energy Corporation
Amended and Restated Revolving Credit Agreement
BANK HAPOALIM B.M.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: Senior Vice President
-----------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
-----------------------------------
Signature Page to Atmos Energy Corporation
Amended and Restated Revolving Credit Agreement
KBC BANK N.V.
By: /s/ ▇▇▇▇-▇▇▇▇▇▇ DIELS
--------------------------------------
Name: ▇▇▇▇-▇▇▇▇▇▇ Diels
------------------------------------
Title: First Vice President
-----------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: Assistant Vice President
-----------------------------------
Signature Page to Atmos Energy Corporation
Amended and Restated Revolving Credit Agreement
SUNTRUST BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: Director
-----------------------------------
Signature Page to Atmos Energy Corporation
Amended and Restated Revolving Credit Agreement
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Vice President & Manager
-----------------------------------
Signature Page to Atmos Energy Corporation
Amended and Restated Revolving Credit Agreement
COBANK, ACB
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Title: Assistant Vice President
-----------------------------------
Signature Page to Atmos Energy Corporation
Amended and Restated Revolving Credit Agreement
THE FUJI BANK, LIMITED
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: General Manager
-----------------------------------
Signature Page to Atmos Energy Corporation
Amended and Restated Revolving Credit Agreement
FIRSTAR BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Senior Vice President
-----------------------------------