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CREDIT AGREEMENT
(Facility B)
by and among
MIDAMERICAN ENERGY HOLDINGS COMPANY,
as Borrower
THE BANKS AND OTHER FINANCIAL
INSTITUTIONS PARTIES HERETO,
as Banks
COMMERZBANK AG, NEW YORK BRANCH,
as L/C Issuer
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
COMMERZBANK AG, NEW YORK BRANCH,
as Syndication Agent
and
BANK ONE, NA
as Documentation Agent
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CREDIT SUISSE FIRST BOSTON
Lead Arranger and Book Manager
COMMERZBANK AG, NEW YORK BRANCH
Co-Arranger
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Dated as of June 26, 2000
TABLE OF CONTENTS
Page
----
ARTICLE I Definitions and Interpretation.......................................1
Section 1.1 Defined Terms..............................................1
Section 1.2 Computation of Time Periods................................1
Section 1.3 Accounting Terms...........................................1
Section 1.4 No Presumption Against Any Party...........................1
Section 1.5 Use of Certain Terms.......................................2
Section 1.6 Headings and References....................................2
Section 1.7 Independence of Provisions.................................2
ARTICLE II Amounts and Terms of the Loans and the Letters of Credit............2
Section 2.1 The Loans..................................................2
Section 2.2 Letters of Credit..........................................7
Section 2.3 Repayment; Reductions.....................................13
Section 2.4 Interest on Loans.........................................14
Section 2.5 Payments and Computations.................................16
Section 2.6 Fees......................................................20
Section 2.7 Increased Costs and Capital Requirements..................21
Section 2.8 Taxes.....................................................22
Section 2.9 Replacement of Bank; Reimbursement for Bid Rate Loans.....26
Section 2.10 Cash Collateral Account...................................26
ARTICLE III Conditions Precedent..............................................27
Section 3.1 Closing Date Conditions Precedent.........................27
Section 3.2 Conditions Precedent to Each Loan and Each L/C............29
ARTICLE IV Representations and Warranties.....................................30
Section 4.1 Representations and Warranties............................30
ARTICLE V Covenants of Borrower...............................................33
Section 5.1 Affirmative Covenants.....................................33
Section 5.2 Negative Covenants........................................37
Section 5.3 Financial Covenants.......................................39
ARTICLE VI Events of Default..................................................40
Section 6.1 Events of Default.........................................40
Section 6.2 Cash Collateral...........................................43
ARTICLE VII Relationship of Agent and Banks...................................43
Section 7.1 Authorization and Action..................................43
Section 7.2 Agent's Reliance, Etc.....................................43
Section 7.3 Agent and Affiliates......................................44
Section 7.4 Bank Credit Decision......................................44
Section 7.5 Indemnification...........................................44
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Section 7.6 Successor Agent...........................................45
Section 7.7 Syndication Agent; Other Titles...........................45
ARTICLE VIII Miscellaneous....................................................45
Section 8.1 Notices...................................................45
Section 8.2 Successors and Assigns....................................46
Section 8.3 Amendments and Related Matters............................46
Section 8.4 Costs and Expenses; Indemnification.......................46
Section 8.5 Oral Communications.......................................47
Section 8.6 Entire Agreement..........................................48
Section 8.7 Governing Law.............................................48
Section 8.8 Severability..............................................48
Section 8.9 Counterparts..............................................48
Section 8.10 Confidentiality...........................................48
Section 8.11 Assignments and Participations............................49
Section 8.12 Waiver of Trial by Jury...................................52
Section 8.13 Choice of Forum and Service of Process....................52
Section 8.14 Remedies..................................................52
Section 8.15 Right of Set-Off..........................................52
Section 8.16 Acknowledgements..........................................53
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APPENDICES
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Appendix A - Defined Terms
SCHEDULES
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Schedule I - Commitment Schedule
Schedule II - Pricing Schedules
EXHIBITS
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Exhibit A - Form of Assignment and Acceptance Agreement
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Request for Continuation of a Eurodollar
Committed Loan
Exhibit B-3 - Form of Request for Conversion of or to a Eurodollar
Committed Loan
Exhibit B-4 - Form of Bid Request
Exhibit C-1 - Form of Note (Committed Loans)
Exhibit C-2 - Form of Note (Bid Rate Loans)
Exhibit D-1 - Form of Opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Exhibit D-2 - Form of Opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Exhibit E - Form of L/C Issuance Request
Exhibit F - Form of Extension Agreement
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CREDIT AGREEMENT
----------------
This CREDIT AGREEMENT, dated as of June 26, 2000 (this "Agreement"), is
made by and among MIDAMERICAN ENERGY HOLDINGS COMPANY, an Iowa corporation
("Borrower"), THE BANKS AND OTHER FINANCIAL INSTITUTIONS PARTIES HERETO (the
"Banks"), COMMERZBANK AG, NEW YORK BRANCH, as L/C Issuer (in such capacity, the
"L/C Issuer"), CREDIT SUISSE FIRST BOSTON, as administrative agent for the Banks
(in such capacity, "Agent"), COMMERZBANK AG, NEW YORK BRANCH, as Syndication
Agent, and BANK ONE, NA, as Documentation Agent.
WHEREAS, Borrower has requested that the Banks make loans to, and the L/C
Issuer issue letters of credit for the account of, Borrower for the purposes
described herein; and
WHEREAS, the Banks are willing to make loans to, and the L/C Issuer is
willing to issue letters of credit for the account of, Borrower on the terms and
subject to the conditions contained herein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
------------------------------
Section 1.1 Defined Terms. For all purposes of this Agreement, capitalized
terms used but not otherwise defined herein shall have the meanings set forth in
Appendix A, which Appendix is hereby incorporated into this Agreement and made a
part hereof as if set forth herein in full.
Section 1.2 Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" mean
"to but excluding."
Section 1.3 Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP. If any "Accounting Change"
(as defined below) shall occur and such change results in a change in the
calculation of financial covenants, standards or terms in this Agreement,
Borrower and Agent shall enter into negotiations to amend the affected
provisions of this Agreement with the desired result that the criteria for
evaluating Borrower's consolidated financial condition and results of operation
shall be substantially the same after such Accounting Change as if such
Accounting Change had not been made. Until such time as such an amendment shall
have been executed and delivered by Borrower, Agent and the Majority Banks, all
financial covenants, standards and terms in this Agreement shall continue to be
calculated or construed as if such Accounting Change had not occurred.
"Accounting Change" means a change in accounting principles required by the
promulgation of any final rule, regulation, pronouncement or opinion by the
Financial Accounting Standards Board of the American Institute of Certified
Public Accountants or, if applicable, the SEC (or successors thereto or agencies
with similar functions).
Section 1.4 No Presumption Against Any Party. Neither this Agreement nor
any uncertainty or ambiguity herein shall be construed or resolved against any
Bank or
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Borrower, whether under any rule of construction or otherwise. On the contrary,
this Agreement has been reviewed by each of the parties and their counsel and
shall be construed and interpreted according to the ordinary meaning of the
words used so as to fairly accomplish the purposes and intentions of all parties
hereto.
Section 1.5 Use of Certain Terms. Unless the context of any Credit Document
requires otherwise, as used in any Appendix or Schedule hereto or to any other
Credit Document or in any Credit Document: the plural includes the singular, the
singular includes the plural, the part includes the whole, "including" is not
limiting and "or" has the inclusive meaning of the phrase "and/or." The words
"hereof," "herein," "hereby," "hereunder" and other similar terms in this
Agreement or in Appendix A refer to this Agreement and Appendix A as a whole and
not exclusively to any particular provision of this Agreement or of Appendix A.
The terms "knowledge of", "awareness of" and "receipt of notice of" in relation
to Borrower, and other similar expressions, mean knowledge of, awareness of, or
receipt of notice by, a Responsible Officer of Borrower.
Section 1.6 Headings and References. Section and other headings are for
reference only and shall not affect the interpretation or meaning of any
provision of this Agreement. Unless otherwise provided, references to Articles,
Sections, Schedules and Exhibits herein or in Appendix A shall be deemed
references to Articles, Sections, Schedules and Exhibits of and to this
Agreement. References to this Agreement or to any other Credit Document include
this Agreement or such other Credit Document, as the case may be, as it may be
modified, amended, restated or supplemented from time to time pursuant to the
provisions hereof or thereof. A reference to a Person, herein or in any other
Credit Document, includes the successors and assigns of such Person, but such
successors and assigns shall have rights under this Agreement only to the extent
permitted hereby.
Section 1.7 Independence of Provisions. All agreements and covenants
hereunder and under the other Credit Documents shall be given independent effect
such that if a particular action or condition is prohibited by the terms of any
such agreement or covenant, the fact that such action or condition would be
permitted within the limitations of another agreement or covenant shall not be
construed as allowing such action to be taken or condition to exist.
ARTICLE II
AMOUNTS AND TERMS OF THE
LOANS AND THE LETTERS OF CREDIT
-------------------------------
Section 2.1 The Loans.
(a) The Loan Commitments. Each Bank severally agrees on the terms and
conditions set forth in this Agreement (including those of Article III) to make
Committed Loans to Borrower on any Banking Day at the Applicable Lending Office
for such Bank during the period from the date hereof until the Termination Date
in an aggregate principal amount at any one time outstanding not to exceed (i)
such Bank's Commitment then in effect less (ii) the sum of (A) such Bank's pro
rata share (based on the ratio of its Commitment to the Aggregate Commitments)
of the L/C Outstandings and (B) such Bank's pro rata share (based on the ratio
of its Commitment to the Aggregate Commitments) of the Bid Rate Loan
Outstandings. Each
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borrowing of Committed Loans shall be funded by the Banks ratably according to
each Bank's Commitment, and shall be in an aggregate amount of not less than One
Million Dollars ($1,000,000) or an integral multiple of One Million Dollars
($1,000,000) in excess thereof. Committed Loans may be borrowed, repaid or
prepaid pursuant to Section 2.3, and reborrowed (including a reborrowing for the
purpose of refunding an outstanding Loan in whole or in part) under this Section
2.1. Notwithstanding the foregoing, no Committed Loan shall be made that would
cause the sum of (1) the amount of such Committed Loan (together with the
amounts of all other Committed Loans and all Bid Rate Loans to be made on the
same Funding Date and the face amounts of all L/Cs to be issued on such Funding
Date), (2) the L/C Outstandings, (3) the aggregate principal amount of
outstanding Committed Loans, and (4) the Bid Rate Loan Outstandings to exceed
the Aggregate Commitments, and Committed Loans must be repaid immediately in an
amount sufficient to eliminate any excess.
(b) Extension of Termination Date. The Termination Date may be extended, in
the manner set forth in this clause (b), on each of the first and second
anniversaries of the Closing Date (each, an "Extension Date"), for a period of
one year after the Termination Date theretofore in effect. If Borrower wishes to
request an extension of the Termination Date on an Extension Date, it shall give
written notice to that effect to Agent not less than 45 nor more than 90 days
prior to such Extension Date, whereupon Agent shall notify each of the Banks of
such notice. Each Bank shall use its best efforts to respond to such request,
whether affirmatively or negatively, within 30 days. If all Banks respond
affirmatively (any Bank which does not respond being deemed to have responded
negatively), then, subject to receipt by Agent prior to such Extension Date of
counterparts of an Extension Agreement in substantially the form of Exhibit F
duly completed and signed by all of the parties hereto, the Termination Date
shall be extended, effective on such Extension Date, to the date that is one
year after such Extension Date. Each Bank's decision with respect to such
request for extension shall be made in such Bank's sole discretion.
(c) Notice of Borrowing. Each Committed Loan shall be made pursuant to a
Notice of Borrowing (substantially in the form of Exhibit B-1) given by Borrower
to Agent at the Agency Office not later than 12:00 Noon (local time in the city
where the Agency Office is situated) on (i) the third Banking Day prior to the
date of the proposed Committed Loan, in the case of any Eurodollar Committed
Loan, or (ii) the Banking Day prior to the date of the proposed Committed Loan,
in the case of any Base Rate Loan. Agent shall give to each Bank prompt notice
thereof by telex, cable or telefacsimile. Committed Loans may also be requested
by telephonic request made no later than the time by which the Notice of
Borrowing would otherwise be due pursuant to the preceding sentence, provided
that a Notice of Borrowing confirming such telephonic request is received by
Agent no later than 12:00 Noon (local time in the city where the Agency Office
is situated) on the Banking Day prior to such Committed Loan. Each Notice of
Borrowing or telephonic request for a Committed Loan shall specify (1) the date
of such Committed Loan, (2) the amount of such Committed Loan, (3) whether such
Committed Loan is to be a Base Rate Loan or a Eurodollar Committed Loan, and (4)
if such Committed Loan is to be a Eurodollar Committed Loan, the Interest Period
with respect thereto. Each Bank shall, before 12:00 Noon (local time in the city
where the Agency Office is situated) on the date of such Committed Loan, make
available to Agent at the Agency Office, in same day funds in Dollars for credit
to the Applicable Agent's Account, such Bank's ratable portion of such Committed
Loan and, unless Agent has been notified by a Bank pursuant to Section 2.1(f)
that
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such Bank will not make available its ratable portion of such Committed Loan,
Agent will make such funds available to Borrower at the Agency Office on the
date of such Committed Loan.
(d) Notice of Borrowing Irrevocable. Each Notice of Borrowing and
telephonic request for a Committed Loan shall be irrevocable and binding on
Borrower. Borrower shall indemnify each Bank against any loss, cost or expense
incurred by such Bank as a result of any failure to fulfill, on or before the
date specified in the Notice of Borrowing or telephonic request for a Committed
Loan, the applicable conditions set forth in Article III, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Bank to fund the Committed Loans to be made by such Bank when
the Committed Loans, as a result of such failure, are not made on such date.
(e) Bid Rate Loan Procedures.
(i) Subject to the terms and conditions set forth herein (including,
without limitation, Section 2.1(k)), from the date hereof until the Termination
Date, Borrower may request Bids for Bid Rate Loans denominated in Dollars and
may (but shall not have any obligation to) accept Bids and borrow Bid Rate
Loans; provided that (A) after giving effect to any requested Bid Rate Loan and
to any other Bid Rate Loan and any Committed Loans or L/Cs requested to be made
or issued on the same Funding Date as such Bid Rate Loan, the sum of the
outstanding principal amount of all Committed Loans and Bid Rate Loans plus the
L/C Outstandings shall not exceed the Aggregate Commitments; and (B) Bid
Requests may not be submitted more often than once in any period of five
consecutive Business Days. Each request for Bids shall be made pursuant to a Bid
Request (substantially in the form of Exhibit B-4) given by Borrower to Agent at
the Agency Office not later than 12:00 Noon (local time in the city where the
Agency Office is situated) on (X) the fourth Banking Day prior to the date of
the proposed Bid Rate Loan, in the case of any Eurodollar Bid Rate Loan, or (Y)
the second Banking Day prior to the date of the proposed Bid Rate Loan, in the
case of any Fixed Rate Loan. Agent shall give to each Bank prompt notice thereof
by telex, cable or telefacsimile, inviting the Banks to submit Bids. Each Bid
Request shall specify (P) the date of such Bid Rate Loan, (Q) the amount of such
Bid Rate Loan (which shall not be less than One Million Dollars ($1,000,000) or
an integral multiple of One Million Dollars ($1,000,000) in excess thereof), (R)
whether such Bid Rate Loan is to be a Eurodollar Bid Rate Loan or a Fixed Rate
Loan, and (S) the Interest Period to be applicable to such Bid Rate Loan (and,
if such Bid Rate Loan is a Fixed Rate Loan for an Interest Period in excess of
three months, the intervals at which interest shall be payable with respect to
the requested Fixed Rate Loan).
(ii) Each Bank may (but shall not have any obligation to) make one or
more Bids to Borrower in response to a Bid Request. Each Bid by a Bank must be
in a form approved by Agent and must be received by Agent at the Agency Office,
and by Borrower, not later than 9:30 a.m. (local time in the city where the
Agency Office is situated) on (A) the third Banking Day prior to the date of the
proposed Bid Rate Loan, in the case of any Eurodollar Bid Rate Loan, or (B) the
Banking Day prior to the date of the proposed Bid Rate Loan, in the case of any
Fixed Rate Loan. Bids that do not conform substantially to the form approved by
Agent or that are not timely received by Agent and Borrower shall be rejected by
Agent, and Agent shall notify the applicable Bank as promptly as practicable.
Borrower shall notify Agent,
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promptly after 9:30 a.m. (local time in the city where the Agency Office is
located) of the Banks from which Bids have been received by Borrower by such
time. Each Bid shall specify (X) the principal amount of the Bid Rate Loan or
Bid Rate Loans that the submitting Bank is willing to make, (Y) the Bid Rate or
Bid Rates at which such Bank is prepared to make such Bid Rate Loan or Bid Rate
Loans (expressed as a percentage rate per annum in the form of a decimal to no
more than four decimal places) and (Z) the Interest Period applicable to each
such Bid Rate Loan and the last day thereof.
(iii) If Agent shall elect to submit a Bid in its capacity as a Bank,
it shall submit such Bid directly to Borrower at least one quarter of an hour
earlier than the time by which the other Banks are required to submit their Bids
to Agent pursuant to subsection (ii) of this clause (e).
(iv) Subject only to the provisions of this subsection (iv), Borrower
may, in its sole and absolute discretion, accept or reject any Bid. Borrower
shall notify Agent whether and to what extent it has decided to accept or reject
each Bid at the Agency Office not later than 11:00 a.m. (local time in the city
where the Agency Office is situated) on (A) the third Banking Day prior to the
date of the proposed Bid Rate Loan, in the case of any Eurodollar Bid Rate Loan,
or (B) the Banking Day prior to the date of the proposed Bid Rate Loan, in the
case of any Fixed Rate Loan; provided that (W) the failure of Borrower to give
such notice shall be deemed to be a rejection of each Bid, (X) Borrower shall
not accept a Bid made at a particular Bid Rate if Borrower rejects a Bid made at
a lower Bid Rate, (Y) the aggregate amount of the Bids accepted by Borrower
shall not exceed the aggregate amount of the requested Bid Rate Loans specified
in the related Bid Request, and (Z) to the extent necessary to comply with
clause (Y) above, Borrower may accept Bids at the same Bid Rate in part, which
acceptance, in the case of multiple Bids at such Bid Rate, shall be made pro
rata in accordance with the amount of each such Bid, rounded to the nearest
$1,000,000. A notice given by Borrower pursuant to this subsection (iv) shall be
irrevocable.
(v) Agent shall promptly notify each bidding Bank by telecopy whether
or not its Bid has been accepted (and, if so, the amount and Bid Rate so
accepted), and each successful bidder will thereupon become bound, subject to
the terms and conditions hereof, to make the Bid Rate Loan in respect of which
its Bid has been accepted. Borrower shall indemnify each Bank that becomes so
bound to make a Bid Rate Loan against any loss, cost or expense incurred by such
Bank as a result of any failure to fulfill, on or before the date specified in
the relevant Bid Request, the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Bank to fund the Bid Rate Loan to be
made by such Bank when the affected Bid Rate Loan, as a result of such failure,
is not made on such date.
(f) Agent's Reliance on Bank Loans. Unless Agent shall have received notice
from a Bank prior to the time of any Loan that such Bank will not make available
to Agent the amount of such Bank's ratable portion of such Loan (or, in the case
of a Bid Rate Loan, that such Bank will not make available to Agent the amount
of such Bank's Bid Rate Loan), Agent may assume that such Bank has made such
amount available to Agent on the date of such Loan in accordance with this
Section 2.1, and Agent may, in reliance upon such assumption, make
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available to Borrower on such date a corresponding amount. If and to the extent
that such Bank shall not have so made such amount available to Agent, such Bank
and Borrower severally agree to repay to Agent forthwith on demand such
corresponding amount advanced to Borrower, together with interest thereon, for
each day from the date such amount is made available to Borrower until the date
such amount is repaid to Agent, at (i) in the case of Borrower, the interest
rate applicable at the time to such Loan, and (ii) in the case of such Bank, the
Federal Funds Rate. If such Bank shall repay such amount to Agent, such
repayment shall constitute such Bank's ratable portion of the affected Committed
Loan, or such Bank's Bid Rate Loan, as the case may be, for purposes of this
Agreement.
(g) Failure to Make Loan. The failure of any Bank to make a Loan to be made
by it shall not relieve any other Bank of its obligation, if any, hereunder to
make its Loan on the date of such Loan, but no Bank shall be responsible for the
failure of any other Bank to make the Loan to be made by such other Bank on the
date of any Loan.
(h) Notice of Interest Rate and Interest Period. Agent shall give prompt
notice to Borrower and the Banks of the applicable interest rate for each Loan
determined by Agent pursuant to Section 2.4 as soon as reasonably practicable
after such rate is determined by Agent and in no event later than two Banking
Days prior to the making of such Loan in the case of any Eurodollar Rate Loan.
Such notice shall also provide the Interest Period for any Eurodollar Rate Loan
or Fixed Rate Loan.
(i) Conversion Options. Subject to the provisions of Sections 2.1(k) and
2.4(d), Borrower may elect from time to time to convert any amount of Eurodollar
Committed Loans to Base Rate Loans by delivering a Request for Conversion of or
to a Eurodollar Committed Loan (substantially in the form of Exhibit B-3) to
Agent prior to 12:00 Noon, New York City time, at least one Banking Day prior to
the requested date of conversion. Subject to the provisions of Section 2.1(k),
Borrower may elect from time to time to convert any amount of Base Rate Loans to
Eurodollar Committed Loans by delivering a Request for Conversion of or to a
Eurodollar Committed Loan to Agent prior to 12:00 Noon, New York City time, at
least three Banking Days prior to the requested date of conversion. Any such
Request for Conversion of or to a Eurodollar Committed Loan with respect to a
conversion to Eurodollar Committed Loans shall be irrevocable and shall specify
the length of the initial Interest Period or Interest Periods therefor. Upon
receipt of any such Request for Conversion of or to a Eurodollar Committed Loan,
Agent shall promptly notify each Bank thereof. All or any part of outstanding
Eurodollar Committed Loans and Base Rate Loans may be converted as provided
herein, provided that no Base Rate Loan may be converted into a Eurodollar
Committed Loan when any Event of Default has occurred and is continuing and the
Majority Banks have determined that such a conversion is not appropriate.
(j) Continuation Options. Subject to the provisions of Section 2.1(k), all
or a portion of any maturing Eurodollar Tranche may be continued as Eurodollar
Committed Loans upon the expiration of the then current Interest Period with
respect thereto by Borrower delivering a Request for Continuation of a
Eurodollar Committed Loan (substantially in the form of Exhibit B-2) to Agent,
prior to 12:00 Noon (New York City time) on the third Banking Day prior to the
last day of the then current Interest Period, specifying the length of the next
Interest Period to be applicable to such Eurodollar Committed Loans, provided
that (i) no portion of a
6
Eurodollar Tranche may be continued as Eurodollar Committed Loans when any Event
of Default has occurred and is continuing and the Majority Banks have determined
that such a continuation is not appropriate and (ii) if Borrower shall fail to
give such notice or if such continuation is not permitted, such Eurodollar
Tranche shall be automatically converted to a Base Rate Loan on the last day of
such then expiring Interest Period.
(k) Eurodollar Tranches. All borrowings, conversions and continuations of
Loans hereunder and all selections of Interest Periods hereunder shall be in
such amounts and be made pursuant to such elections so that, after giving effect
thereto, each Eurodollar Tranche shall be in an amount equal to One Million
Dollars ($1,000,000) or a whole multiple of One Million Dollars ($1,000,000) in
excess thereof and there shall be, in the aggregate, no more than 10 Eurodollar
Tranches outstanding at any one time.
Section 2.2 Letters of Credit.
(a) Amount and Expiration.
(i) Subject to the terms and conditions of this Agreement, from the
Closing Date to the date which is 30 days before the Termination Date, Borrower
may request that the L/C Issuer, in its individual capacity, issue one or more
L/Cs for the account of Borrower; provided, however, that no L/C shall be issued
if, after giving effect to the issuance of such L/C and of any other L/Cs
requested to be issued on the same Funding Date and to the making of any
Committed Loans or Bid Rate Loans requested to be made on the same Funding Date,
(A) the aggregate amount of all L/C Outstandings plus the aggregate amount of
all Committed Loans and Bid Rate Loans then outstanding would exceed the
Aggregate Commitments at such time, or (B) the aggregate amount of all L/C
Outstandings would exceed the L/C Sublimit. Subject to the foregoing, Borrower
may request the issuance of L/Cs under this subsection (i), repay any drawings
thereunder and request the issuance of additional L/Cs under this subsection
(i). For all purposes of this Agreement, reference to the "issue" or "issuance"
of any L/C or any L/C being "issued" shall include the amendment, supplement or
modification of any L/C, including, without limitation, any increase in the
amount thereof, or any extension or renewal thereof.
(ii) Each L/C shall expire by its terms not later than the L/C
Expiration Date. No L/C may by its terms be automatically renewable, unless
consented to in writing by each of Agent and the L/C Issuer in the exercise of
its sole discretion, subject to the foregoing restriction regarding expiration
dates, and no L/C may be denominated or drawable other than in Dollars.
(b) Notice and Issuance.
(i) Borrower shall give notice to the L/C Issuer and Agent of a request
for issuance of any L/C (a "L/C Issuance Request") not less than five (5)
Banking Days prior to the proposed issuance date (which prescribed time period
may be waived at the option of the L/C Issuer in the exercise of its sole
discretion). Each L/C Issuance Request shall be substantially in the form of
Exhibit E and shall specify: (A) the requested date of such issuance (which
shall be a Banking Day); (B) the maximum amount of such L/C; (C) the expiration
date of such L/C; (D)
7
the purpose of such L/C; (E) the name and address of the beneficiary of such
L/C; and (F) if requested by the L/C Issuer, the form of such L/C and any
related draw requests and similar documents (which shall be acceptable to the
L/C Issuer in its reasonable discretion). The making of each L/C Issuance
Request shall be deemed to be a representation and warranty by Borrower that the
L/C requested therein may be issued in accordance with and will not violate the
terms of Section 2.2(a). Each L/C Issuance Request shall be accompanied by the
Application Documents, each duly completed and executed and delivered by
Borrower.
(ii) Upon acceptance of the form of the proposed L/C by the L/C Issuer
and upon fulfillment of the conditions set forth above in this Section 2.2(b)
and the applicable conditions in Article III, the L/C Issuer shall issue such
L/C.
(iii) Notwithstanding the foregoing, the L/C Issuer shall not be under
any obligation to issue any L/C if at the time of such issuance:
(A) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain the L/C Issuer
from issuing such L/C or any requirement of law applicable to the L/C
Issuer or any request or directive (whether or not having the force of law)
from any governmental authority with jurisdiction over the L/C Issuer shall
prohibit, or request that the L/C Issuer refrain from, the issuance of
letters of credit generally or such L/C in particular, or shall impose upon
the L/C Issuer with respect to such L/C any requirement (for which the L/C
Issuer is not otherwise compensated) not in effect on the date hereof, or
any unreimbursed loss, cost or expense which was not applicable, in effect
or known to the L/C Issuer as of the date hereof and which the L/C Issuer
in good ▇▇▇▇▇ ▇▇▇▇▇ material to it; or
(B) the L/C Issuer shall have received notice from Agent or any Bank
prior to the issuance of such L/C that one or more of the applicable
conditions specified in this Section 2.2(b) or in Article III are not then
satisfied, or that the issuance of such L/C would violate Section 2.2(a).
(iv) Upon the request of any Bank, the L/C Issuer shall promptly
deliver to such Bank the information specified in Sections 2.2(b)(i)(A) through
(F) above and copies of any L/C issued by the L/C Issuer.
(c) Reimbursement Obligations.
(i) The L/C Issuer shall give prompt notice to Agent of each payment
under an L/C by the L/C Issuer for drafts drawn or any other amount paid or
disbursed under an L/C. Borrower shall be obligated to reimburse Agent, for the
account of the L/C Issuer, in immediately available funds at the address set
forth below the L/C Issuer's signature to this Agreement, on the day of each
payment under an L/C issued by the L/C Issuer for drafts drawn and any other
amounts paid or disbursed under such L/C (all such amounts so drawn, paid or
disbursed until reimbursed are hereinafter referred to as "Unreimbursed
Drawings"); provided that if any such Unreimbursed Drawings are not so
reimbursed on the date of any drafts drawn, Borrower's reimbursement obligation
in respect of such Unreimbursed Drawings shall be funded
8
on such date (or on the next succeeding Banking Day, if applicable, as described
in the last sentence of this clause (c)(i)) with the borrowing of Base Rate
Loans (each such borrowing a "Mandatory L/C Borrowing") in the full amount of
the Unreimbursed Drawings from all Banks based on each Bank's pro rata share of
the Aggregate Commitments. Agent shall promptly notify the L/C Issuer of the
amount of any Unreimbursed Drawings and Agent shall promptly notify the Banks of
the amount of the related Mandatory L/C Borrowing not later than 12:00 noon (New
York City time) on the date on which such Mandatory L/C Borrowing is to be made.
Each such Bank hereby irrevocably agrees to make Loans pursuant to each
Mandatory L/C Borrowing in the amount, and not later than 5:00 p.m. (New York
City time) on the date, and in the manner specified in the preceding sentence,
notwithstanding (A) that the amount of the Mandatory L/C Borrowing may not
comply with the minimum amount for borrowings otherwise required hereunder, (B)
whether any conditions specified in Article III are then satisfied, (C) whether
a Default or an Event of Default then exists, (D) the date of such Mandatory L/C
Borrowing and (E) any reduction in the Aggregate Commitments after any such L/C
was issued. If Agent delivers the above-described notice to any Bank later than
12:00 noon (New York City time) on the date of the required Mandatory L/C
Borrowing, then such Bank shall not be obligated to effect such Mandatory L/C
Borrowing until the next succeeding Banking Day (but not later than 5:00 p.m.
(New York City time)), and interest on the amount of the related Unreimbursed
Drawing, at the rate of interest then applicable to Base Rate Loans, shall
accrue and be payable (for the account of the L/C Issuer to the extent that such
Unreimbursed Drawing has not been reimbursed in full) on the date on which
interest on Base Rate Loans next becomes due and payable.
(ii) Notwithstanding the foregoing (but without limiting the
obligations of the Banks to make Loans pursuant to Mandatory L/C Borrowings in
accordance with subsection (i) above), if at any time when a draft is drawn
under an L/C there are not sufficient funds in any account of Borrower with the
L/C Issuer or sufficient availability to permit the making of Loans sufficient
to fund the payment of such draft, any funds advanced by the L/C Issuer and the
other Banks in payment thereof shall be due and payable immediately and shall
bear interest until paid in full at the Default Rate, such interest to be
payable on demand. In the event of any conflict, discrepancy or omission of
terms provided herein between the terms established by the L/C Issuer in its
Application Documents or otherwise and this Agreement, the terms provided herein
shall prevail. The obligations of the Banks in respect of any funds so advanced
or to be advanced by the L/C Issuer under this Section 2.2(c)(ii) and Section
2.2(c)(i) shall be as more particularly described in Sections 2.2(e)(ii) and
(iii).
(d) General Unconditional Obligations. The L/C Obligations shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement and the Application Documents under
all circumstances whatsoever, including, without limitation, the following
circumstances, whether relating to any one or more L/Cs:
(i) any agreement between Borrower and any beneficiary or any agreement
or instrument relating thereto (the "Beneficiary Documents") proving to be
forged, fraudulent, invalid, unenforceable or insufficient in any respect;
9
(ii) any amendment or waiver of or any consent to departure from all or
any of the Beneficiary Documents;
(iii) the existence of any claim, setoff, defense or other rights which
Borrower may have at any time against any beneficiary or any transferee of
any L/C (or any persons or entities for whom any applicable beneficiary or
any such transferee may be acting), the L/C Issuer, any other Bank, Agent or
any other person or entity, whether in connection with this Agreement, the
Beneficiary Documents or any unrelated transaction;
(iv) any demand presented under any L/C (or any endorsement thereon)
proving to be forged, fraudulent, invalid, unenforceable or insufficient in
any respect or any statement therein being inaccurate in any respect
whatsoever;
(v) payment by the L/C Issuer under any L/C against presentation of a
demand which does not comply with the terms of such L/C, including, without
limitation, the circumstances referred to in subsection (iv) above or the
failure of any document to bear reference or to bear adequate reference to
such L/C, except to the extent resulting from the gross negligence or willful
misconduct of the L/C Issuer;
(vi) the use to which any L/C may be put or any acts or omissions of
any beneficiary in connection therewith; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, except to the extent resulting from the
gross negligence or willful misconduct of the L/C Issuer.
(e) Participations by Banks.
(i) On the date of issuance of each L/C, the L/C Issuer shall be deemed
irrevocably and unconditionally to have sold and transferred to each Bank
(excluding, for all purposes of this Section 2.2(e), the L/C Issuer, which shall
retain a portion equal to its pro rata share of the Aggregate Commitments)
without recourse or warranty, and each Bank shall be deemed to have irrevocably
and unconditionally purchased and received from the L/C Issuer, an undivided
interest and participation, to the extent of such Bank's pro rata share of the
Aggregate Commitments in effect on the date of such issuance, in such L/C, each
substitute letter of credit, each drawing made thereunder, the related
Application Documents, all L/C Obligations (other than fees under Section
2.6(a)(v)) relating to such L/C and all Credit Documents securing, guaranteeing,
supporting or otherwise benefiting the payment of such L/C Obligations. The L/C
Issuer shall furnish to any Bank, upon request, copies of any L/C and any
Application Documents as may be requested by such Bank.
(ii) If any reimbursement obligation under Section 2.2(c) is not paid
to the L/C Issuer with respect to any L/C in full immediately or by a Mandatory
L/C Borrowing from all the Banks pro rata pursuant to Section 2.2(c)(i), the L/C
Issuer shall promptly notify Agent to that effect, and Agent shall promptly
notify the Banks of the amount of such reimbursement obligation and each Bank
shall immediately pay to Agent, for immediate payment to the L/C
10
Issuer, in lawful money of the United States and in immediately available funds,
an amount equal to such Bank's ratable portion of the amount of such unpaid
reimbursement obligation.
(iii) The obligation of each Bank to make Loans in respect of each
Mandatory L/C Borrowing and to make payments under the preceding Section
2.2(e)(ii) shall be absolute, unconditional and irrevocable and not subject to
any qualification or exception whatsoever and shall be made in accordance with
the terms and conditions of this Agreement under all circumstances and shall not
be subject to any conditions set forth in Article III or otherwise affected by
any circumstance including, without limitation, (A) the occurrence or
continuance of a Default or an Event of Default; (B) any adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of Borrower; (C) any breach of this Agreement or any
Application Documents or other Credit Documents by Borrower or any Bank; (D) any
set-off, counterclaim, recoupment, defense or other right which such Bank or
Borrower may have at any time against the L/C Issuer, any other Bank or any
beneficiary named in any L/C in connection herewith or otherwise; (E) the
validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (F) any lack of validity or
enforcement of this Agreement or any of the other Credit Documents; (G) the
granting, surrender or impairment of any security for the performance or
observance of any of the terms of any of the other Credit Documents; or (H) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing. Borrower agrees that any Bank purchasing a participation in
any L/C from the L/C Issuer hereunder may, to the fullest extent permitted by
law, exercise all of its rights of payment with respect to such participation as
fully as if such Bank were the direct creditor of Borrower in the amount of such
participation.
(iv) Promptly after the L/C Issuer receives a payment on account of a
reimbursement obligation with respect to any L/C as to which any other Bank has
funded its participation pursuant to Section 2.2(e)(ii), the L/C Issuer shall
promptly pay to Agent, and Agent shall promptly pay to each Bank which funded
its participation therein, in lawful money of the United States and in the kind
of funds so received, an amount equal to such Bank's ratable share thereof.
(v) If any payment received on account of any reimbursement obligation
with respect to an L/C and distributed to a Bank as a participant under Section
2.2(e)(iv) is thereafter recovered from the L/C Issuer in connection with any
bankruptcy or insolvency proceeding relating to Borrower or otherwise, each Bank
which received such distribution shall, upon demand by Agent, repay to the L/C
Issuer such Bank's ratable share of the amount so recovered together with an
amount equal to such Bank's ratable share (according to the proportion of (A)
the amount of such Bank's required repayment to (B) the total amount so
recovered) of any interest or other amount paid or payable by the L/C Issuer in
respect of the total amount so recovered.
(f) Non-Liability. Borrower assumes all risks of the acts or omissions of
any beneficiary or transferee of any L/C with respect to its use of such L/C.
Neither Agent, the L/C Issuer nor any other Bank, nor any of their respective
officers or directors, shall be liable or responsible for: (i) the use that may
be made of any L/C or any acts or omissions of any beneficiary or transferee in
connection therewith; (ii) the validity, sufficiency or genuineness of
11
documents, or of any endorsement thereon, even if such documents should prove to
be in any or all respects invalid, insufficient, fraudulent or forged; (iii)
payment by the L/C Issuer against presentation of documents that do not comply
with the terms of an L/C, including failure of any documents to bear any
reference or adequate reference to an L/C, except that Borrower shall have a
claim against the L/C Issuer, and the L/C Issuer shall be liable to Borrower, to
the extent of any direct, but not consequential, damages suffered by Borrower
that Borrower proves were caused solely by (A) the L/C Issuer's willful
misconduct or gross negligence in determining whether documents presented under
any L/C comply with the terms of the L/C or (B) the L/C Issuer's willful failure
to make lawful payment under an L/C after the presentation to it of a draft and
documents and/or certificates strictly complying with the terms and conditions
of the L/C; (iv) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether
or not they are in cipher; (v) errors in interpretation of technical terms; (vi)
any loss or delay in the transmission or otherwise of any document required in
order to make a drawing under any L/C or of the proceeds thereof; and (vii) any
consequence arising from causes beyond the control of the L/C Issuer, including,
without limitation, any government acts. None of the above shall affect, impair
or prevent the vesting of any of the L/C Issuer's rights or powers hereunder. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary.
The Uniform Customs and Practice for Documentary Credits, or with respect to
standby L/Cs, The International Standby Practices, in each case, as most
recently published by the International Chamber of Commerce, shall be deemed a
part of this Section 2.2 as if incorporated herein in all respects and shall
apply to commercial L/Cs or standby L/Cs, as the case may be.
(g) Indemnification. In addition to amounts payable as elsewhere provided
in this Agreement, without duplication, Borrower agrees to indemnify and save
harmless Agent and each Bank, including the L/C Issuer, from and against any and
all claims, demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees) which Agent or any such Bank may incur or
be subject to as a consequence, direct or indirect, of the issuance of any L/C
or any action or proceeding relating to a court order, injunction or other
process or decree restraining or seeking to restrain the L/C Issuer or Agent
from paying any amount under any applicable L/C or the failure of the L/C Issuer
to honor a drawing under an L/C as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto government or
governmental authority, except that no such Person shall be entitled to
indemnification for matters to the extent caused by such Person's gross
negligence or willful misconduct. Without modifying the foregoing, and anything
contained herein to the contrary notwithstanding, Borrower shall cause each L/C
issued for its account to be canceled and returned to the L/C Issuer on or
before its expiration date.
(h) Domestic Affiliates. At the request of Borrower (if necessary to
satisfy contractual or regulatory requirements), the L/C Issuer shall arrange
for one or more L/Cs to be issued by United States Affiliates of the L/C Issuer,
in which case the term "L/C Issuer" shall include any such Affiliate with
respect to L/Cs issued by such Affiliate. If no such United States Affiliate is
available, (i) Borrower may request that another Bank, organized under the laws
of the United States or any State thereof, agree to issue such L/Cs, and, if
such Bank agrees to, and
12
does, issue such L/Cs, the term "L/C Issuer" shall include such Bank with
respect to the L/Cs issued by such Person.
Section 2.3 Repayment; Reductions.
(a) Mandatory Repayments. Borrower shall repay all outstanding Committed
Loans on the Termination Date. Borrower shall repay each Bid Rate Loan on the
last day of the Interest Period for such Bid Rate Loan. Borrower shall repay
such of the outstanding Loans, together with accrued interest to the date of
such repayment on the principal amount repaid and any amounts due under Section
2.4(d), or cash collateralize the L/C Obligations, or both, as may be required
at any time or from time to time, by reason of a reduction in the Commitments
pursuant to Section 2.3(c), the occurrence of the Termination Date or otherwise,
to assure that the principal balance of all outstanding Loans plus the amount of
the L/C Outstandings does not at any time exceed the Aggregate Commitments.
Borrower shall cash collateralize the L/C Obligations as may be required at any
time or from time to time, by reason of a reduction in the Commitments pursuant
to Section 2.3(c), the occurrence of the Termination Date or otherwise, to
assure that the amount of the L/C Outstandings does not at any time exceed the
L/C Sublimit. Amounts to be applied pursuant to this clause (a) shall be applied
first to repay the principal amount of the Loans then outstanding, together with
interest thereon and any amounts due under Section 2.4(d), until all Loans,
together with such interest and other amounts, shall have been repaid in full,
and if any excess then remains, such excess shall be deposited with Agent in the
Cash Collateral Account to be held, applied or released for application as
provided in Section 2.10. The particular Loans to be repaid shall be as
designated by Borrower (or, failing such designation, in accordance with Section
2.5(e)).
(b) Voluntary Prepayments. Upon prior written notice to Agent by Borrower
(which notice must be received by Agent not later than 12:00 Noon, New York City
time, three Banking Days prior to the proposed date of prepayment and which
notice Agent shall promptly give to the Banks) stating the proposed date and
aggregate principal amount of the prepayment, Borrower may, and if such notice
is given Borrower shall, prepay the outstanding principal amount of any Loan, as
identified by Borrower in such notice, in whole or in part, together with
accrued interest to the date of such prepayment on the principal amount prepaid,
as well as any additional amount owed by Borrower pursuant to Section 2.4(d),
provided that each partial prepayment shall be in an aggregate amount of One
Million Dollars ($1,000,000) or an integral multiple of One Million Dollars
($1,000,000) in excess thereof.
(c) Reduction or Termination. On or after the Closing Date, Borrower may
upon at least three Banking Days' notice to Agent at the Agency Office,
permanently terminate in whole at any time, or ratably reduce from time to time
by an aggregate amount of Five Million Dollars ($5,000,000) or an integral
multiple of One Million Dollars ($1,000,000) in excess thereof, the then
unutilized Commitments of the Banks (after giving effect to the Banks' pro rata
shares of L/C Outstandings), to an amount that does not exceed the sum of the
aggregate outstanding principal amount of all Loans and the L/C Outstandings,
after giving effect to any repayments of the Loans effected on the date of such
reduction. All such reductions shall be permanent. If the Commitments are
terminated in their entirety, all accrued Fees in respect thereof shall be
payable on the effective date of such termination. Agent shall give prompt
notice to the Banks of any such termination or reduction.
13
Section 2.4 Interest on Loans.
(a) Base Rate Loans. Borrower shall pay interest on the unpaid principal
amount of each Base Rate Loan, from the Funding Date of such Loan until such
principal amount is paid in full, at a rate per annum equal to the sum of (i)
the Base Rate plus (ii) the Applicable Margin from time to time in effect,
together with any additional interest rate margin as shall be applicable under
clause (g) of this Section 2.4.
(b) Eurodollar Rate Loans.
(i) Borrower shall pay interest on the unpaid principal amount of each
Eurodollar Committed Loan, for each Interest Period applicable thereto in
accordance with the provisions hereof, at a rate per annum equal to the sum of
(A) the Eurodollar Rate for such Interest Period plus (B) the Applicable Margin
from time to time in effect, together with any additional interest rate margin
as shall be applicable under clause (g) of this Section 2.4. From and after the
Maturity Date of the Interest Period applicable to any portion of a Eurodollar
Committed Loan that is not continued as such, the unpaid principal balance
thereof shall automatically become, and bear interest as, a Base Rate Loan.
(ii) Borrower shall pay interest on the unpaid principal amount of each
Eurodollar Bid Rate Loan, for the Interest Period applicable to such Eurodollar
Bid Rate Loan, at a rate per annum equal to (A) the Eurodollar Rate for such
Interest Period plus (or minus, as the case may be) (B) the Eurodollar Bid
Margin applicable to such Eurodollar Bid Rate Loan, together with any additional
interest rate margin as shall be applicable under clause (g) of this Section
2.4.
(c) Fixed Rate Loans. Borrower shall pay interest on the unpaid principal
amount of each Fixed Rate Loan, for the Interest Period applicable to such Fixed
Rate Loan, at a rate per annum equal to the Fixed Rate applicable to such Fixed
Rate Loan, together with any additional interest rate margin as shall be
applicable under clause (g) of this Section 2.4.
(d) Breakage Expenses. If for any reason and at any time or from time to
time, including, without limitation, voluntary or mandatory prepayment of
principal or payment of principal at any accelerated maturity, the outstanding
principal balance of any Eurodollar Rate Loan or Fixed Rate Loan is repaid in
whole or in part, or (in the case of a Eurodollar Committed Loan) converted into
a Base Rate Loan, in each case prior to the Maturity Date of the applicable
Interest Period, then, in addition to accrued interest thereon, Borrower shall
pay to the Applicable Agent's Account for credit to each Bank for the account of
the Applicable Lending Office, on demand by such Bank, (i) the amount by which
(x) the interest which would have accrued on the amount of such principal
reduction subject to such Interest Period until such Maturity Date had such
principal reduction not been made exceeds (y) the interest obtained by such Bank
in the reemployment of such principal reduction for the balance of such Interest
Period, and (ii) any cancellation or similar fees incurred by or allocated to
such Bank on funds borrowed by such Bank to carry the unpaid principal sum
thereof at the applicable Eurodollar Rate or Fixed Rate, as the case may be, and
a certificate as to such excess and fees submitted by such Bank to Borrower
shall, absent manifest error, be final and conclusive.
14
(e) Eurodollar Rate Loans Not Available. If, prior to the commencement of
any Interest Period applicable to any Eurodollar Rate Loan, (x) Agent notifies
Borrower and each Bank that (1) adequate and fair means do not exist for Agent
to ascertain the relevant Eurodollar Rate, or (2) one or more of the Reference
Banks or Agent, as applicable, is not offering deposits in Dollars in the
relevant interbank market in the amount, at the time, or for the Interest Period
necessary fairly and adequately to determine the relevant Eurodollar Rate, or
(y) Banks whose Eurodollar Committed Loans will exceed 50% of all Eurodollar
Committed Loans at the commencement of such Interest Period (after giving effect
to any Loans to be made on such date) notify Agent (in which case Agent shall
promptly notify all other Banks and Borrower) that the relevant Eurodollar Rate
will not adequately reflect the cost to the Banks giving such notification of
making or maintaining their Eurodollar Committed Loans for such Interest Period,
then, and in each such event, and until Agent shall notify Borrower and the
Banks that the circumstances specified in clause (x) or (y) above no longer
continue, (i) the obligation of the Banks to make or continue Eurodollar Rate
Loans, and to convert Base Rate Loans into Eurodollar Committed Loans, shall be
suspended, and (ii) all Eurodollar Committed Loans outstanding on or after
notice of such an event shall (unless repaid) be converted into Base Rate Loans
on the Maturity Dates of the respective Interest Periods applicable thereto.
(f) Eurodollar Rate Loans Unlawful. If any Bank shall have determined
(which determination, absent manifest error, shall be final and conclusive) that
the continuation of any interest rate based on the Eurodollar Rate has become
unlawful (or impracticable by compliance by such Bank in good faith with any
Directive) with respect to a Commitment of such Bank, then, and in any such
event, effective upon notice by such Bank to Agent and Borrower and until such
notice is rescinded, no Eurodollar Rate Loans shall be available under such
Commitment with respect to future Loans made by such Bank and any such existing
Eurodollar Rate Loan shall from and after such notice be immediately converted
into a Base Rate Loan for the balance of the Interest Period, and Borrower shall
pay to such Bank, upon demand, all amounts necessary to compensate such Bank in
making such change in interest rates, including any interest (without
duplication) or fees payable by such Bank on funds obtained by it in order to
make or maintain such Loan, and a certificate of such Bank as to such interest,
fees and other amounts to be conclusive absent manifest error; provided,
however, that (i) to the extent it may lawfully do so without incurring any
penalty or increased costs, such Bank shall continue any such existing
Eurodollar Rate Loan until the Maturity Date of the relevant Interest Period,
and (ii) before such termination, such Bank shall use reasonable efforts
(consistent with internal policies and applicable Directives) to designate a
different Applicable Lending Office if the making of such designation would
avoid such illegality and would not, in the sole judgment of such Bank, be
otherwise to its disadvantage in any material respect.
(g) Default Interest Rate. If an Event of Default has occurred, then from
and after the date of occurrence of such Event of Default, and so long as such
Event of Default continues, the rate or rates of interest applicable to the then
and any subsequent outstanding Loans shall in all cases be increased to (i) for
Base Rate Loans, the Base Rate plus the Applicable Margin plus 200 basis points
(2.0%) per annum, (ii) for Eurodollar Committed Loans, the rate of interest in
effect thereon at the time of the Event of Default plus 200 basis points (2.0%)
per annum until the end of the then current Interest Period therefor and
thereafter the Base Rate plus the Applicable Margin plus 200 basis points (2.0%)
per annum, (iii) for Eurodollar Bid Rate Loans, the rate of interest in effect
thereon at the time of the Event of
15
Default plus 200 basis points (2.0%) per annum, and (iv) for Fixed Rate Loans,
the rate of interest in effect thereon at the time of the Event of Default plus
200 basis points (2.0%) per annum. Other amounts payable by Borrower hereunder
that are not paid when due (whether at Stated Maturity, by acceleration or
otherwise) shall accrue interest at a rate per annum during the period
commencing on the date due until such other amounts are paid in full equal to
the Base Rate plus the Applicable Margin plus 200 basis points (2.0%) per annum.
(h) Interest Payment Dates. Borrower shall pay accrued interest on each
Loan (without duplication), determined and calculated as herein provided,
payable as follows:
(i) in the case of a Eurodollar Rate Loan, on the Maturity Date for the
Interest Period applicable to such Eurodollar Rate Loan, and if such Interest
Period is for more than three months, then also on the same day of each third
month of such Interest Period as corresponds to the first day of such
Interest Period (and if there is no such corresponding day of the month, then
on the last Banking Day of such month);
(ii) in the case of a Base Rate Loan, on the last Banking Day of each
March, June, September and December, commencing with the first such Banking
Day following the making of such Loan;
(iii) in the case of a Fixed Rate Loan, on the Maturity Date for the
Interest Period applicable to such Fixed Rate Loan, and if such Interest
Period is for more than three months, then (A) also on the same day of each
third month of such Interest Period as corresponds to the first day of such
Interest Period (and if there is no such corresponding day of the month, then
on the last Banking Day of such month), or (B) as otherwise specified in the
applicable Bid Request;
(iv) on the date such Loan is converted pursuant to Section 2.1(i);
(v) in the case of all Loans, on the Termination Date, if the
Termination Date falls before the other applicable payment dates specified in
this clause (h); provided that interest accruing on such Loans on and after
the Termination Date shall be due daily; or
(vi) on the date of any repayment or prepayment of such Loan, in whole
or in part, with respect to the principal thereof so repaid or prepaid.
(i) Limitation. In no contingency or event whatsoever shall the interest
rate charged pursuant to the terms of this Agreement or any Note exceed the
maximum amount of interest permitted by applicable law. If a court of competent
jurisdiction determines that this Agreement provides for interest in excess of
the maximum amount of interest permitted by applicable law, the excess amount of
interest paid shall be promptly refunded to Borrower.
Section 2.5 Payments and Computations.
(a) Payments to Applicable Agent's Account. Borrower shall pay all amounts
due to Agent and Banks hereunder and under any other Credit Document to which it
is a party without condition or deduction for any counterclaim, defense,
recoupment, setoff or (except as
16
expressly provided herein, including, without limitation, in Section 2.8) any
other deduction or withholding whatsoever, in Dollars and in same day funds
delivered to Agent not later than 1:00 p.m. (local time in the city where the
Agency Office is situated) on the day when due by deposit of such funds to the
Applicable Agent's Account. Agent shall promptly thereafter cause to be
distributed like funds relating to the payment of principal, interest or Fees
ratably (other than amounts subject to Taxes pursuant to Section 2.8, Agent's
Fees payable under Section 2.6(a)(i) and amounts payable under Section 2.7, and
provided that payments of principal and interest in respect of Bid Rate Loans
shall be distributed ratably to Banks that have made the Bid Rate Loans to which
such payments relate, in accordance with the principal or interest then due and
payable to each Bank, respectively), in accordance with the outstanding Loans of
the Banks (in the case of payments of principal or interest) or the Commitments
of the Banks (in the case of payments of Fees, other than Agent's Fees payable
under Section 2.6(a)(i)), to the Banks for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of any other
amount payable to any Bank to such Bank for the account of its Applicable
Lending Office to be applied in accordance with, and subject to, the terms of
this Agreement. Upon an Assignment and Acceptance Agreement becoming effective
as provided in Section 8.11 and recording by Agent of the information contained
therein in the register maintained for purposes of this Agreement by Agent at
its Agency Office, from and after the effective date specified in such
Assignment and Acceptance Agreement, Agent shall make all payments hereunder and
under any other Credit Document in respect of the interest assigned thereby to
the Assignee thereunder, and the parties to such Assignment and Acceptance
Agreement shall make all appropriate adjustments in such payments for periods
prior to such effective date directly between themselves.
(b) Setoff. Borrower hereby authorizes each Bank, if and to the extent
payment owing to such Bank from Borrower is not made when due hereunder, to
charge from time to time against any or all of Borrower's accounts with such
Bank any amount so due.
(c) Interest and Fee Computations. Computations of interest based on the
Eurodollar Rate, the Federal Funds Rate and any Fixed Rate, and the computation
of Fees, shall be made by Agent on the basis of a year of 360 days, (ii)
computations of interest based on the Base Rate shall be made by Agent on the
basis of a year of 365 or 366 days, as appropriate to reflect the actual number
of days in such year, and (iii) all computations in every case shall be for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or Fees are payable. Each
determination by Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error. Any change in (x) the Base Rate
due to a change in CSFB's base lending rate or the Federal Funds Rate shall be
effective as of the opening of business on the effective day of such change in
CSFB's base lending rate or the Federal Funds Rate, respectively, (y) the
interest rate on a Loan resulting from a change in the Base Rate or the
Eurodollar Rate Reserve Percentage shall become effective as of the opening of
business on the day on which such change becomes effective or (z) the interest
rate on a Loan or the amount of any Fee resulting from a change in the
Applicable Margin, the Applicable L/C Fee Rate, the Applicable Facility Fee Rate
or the Applicable Utilization Fee Rate shall become effective on the applicable
Rating Adjustment Date.
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(d) Agent's Reliance on Borrower Payments. Unless Agent shall have received
notice from Borrower prior to the date on which any payment is due to a Bank
hereunder that Borrower will not make such payment in full, Agent may assume
that Borrower has made such payment in full to Agent on such date and Agent may,
in reliance upon such assumption, cause to be distributed to the relevant Banks
on such due date an amount equal to the amount then due to such Banks. If and to
the extent Borrower shall not have so made such payment in full to Agent, each
affected Bank shall repay to Agent forthwith on demand the amount so distributed
to such Bank together with interest thereon, for each day from the date such
amount is distributed to such Bank until the date such Bank repays such amount
to Agent, at the Federal Funds Rate.
(e) Application of Payments.
(i) Amounts received by Agent for application to the principal of any
Committed Loans shall be applied (A) if received on or before the Termination
Date (if not specified by Borrower at or prior to the time of receipt or if
received after the occurrence and during the continuance of an Event of
Default), first to the ratable payment of the outstanding Committed Loans
that constitute Base Rate Loans, and second to the ratable payment of the
outstanding Committed Loans that constitute Eurodollar Rate Loans, and (B) if
received after the Termination Date, to the ratable payment of all the
outstanding Committed Loans.
(ii) Amounts received by Agent for application to the principal of any
Bid Rate Loans shall be applied as specified by Borrower (or, if not
specified by Borrower at or prior to the time of receipt or if received after
the occurrence and during the continuance of an Event of Default, to the
ratable payment of the outstanding Bid Rate Loans).
(iii) Amounts received by Agent for application to the principal of any
Loan after the occurrence and during the continuance of an Event of Default
shall be deemed to have been received for application to the Committed Loans
and the Bid Rate Loans on a ratable basis.
(f) Payments on Non-Banking Days. Whenever any payment hereunder shall be
stated to be due on a day other than a Banking Day, such payment shall be made
on the next succeeding Banking Day (except as otherwise provided with respect to
the determination of Interest Periods), and such extension of time shall in such
case be included in the computation of payment of interest or Fees, as the case
may be.
(g) Adjustments. If any Bank shall obtain any payment whether voluntary,
involuntary, through the exercise of any right of setoff or otherwise with
respect to principal, interest or Fees due under the Credit Documents (other
than Fees payable under Sections 2.6(a)(i) and 2.6(a)(v) and other than payments
pursuant to Sections 2.7 and 2.8), in excess of its ratable share (based (x) in
the case of principal or interest, on the ratio of the amount of principal or
interest, as the case may be, then due and payable to such Bank to the aggregate
amount of principal or interest, respectively, then due and payable hereunder,
and (y) in the case of Fees, on the ratio of such Bank's Commitment to the
Aggregate Commitments) of payments on account
18
of principal, interest or such Fees, as the case may be, then due and owing to
all Banks under the Credit Documents, such Bank shall forthwith purchase from
such other Banks such participations in the principal, interest or such Fees, as
the case may be, owing to them as shall be necessary to cause such purchasing
Bank to share the excess payment ratably with each of the other Banks, in
accordance with the outstanding Loans of the other Banks (in the case of
payments on account of principal), the amount of interest then due and payable
to the other Banks (in the case of payments on account of interest) or the
Commitments of the other Banks (in the case of payments on account of Fees,
other than Fees payable under Sections 2.6(a)(i) and 2.6(a)(v) and other than
payments pursuant to Sections 2.7 and 2.8); provided, however, that if all or
any portion of such excess payment is thereafter recovered from such Bank, such
purchase from such other Banks shall be rescinded and each such other Bank shall
repay to the purchasing Bank the purchase price to the extent of such recovery,
without interest. Borrower agrees that any Bank purchasing a participation from
another Bank pursuant to this Section 2.5(g) may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
setoff) with respect to such participation as fully as if such Bank were the
direct creditor of Borrower in the amount of such participation.
(h) Loan Register. Agent shall maintain a register at the Agency Office
with respect to the Loans, which register shall record (i) the date of and
amount of each Loan, the Type of each Loan and, with respect to Eurodollar Rate
Loans and Fixed Rate Loans, the Interest Period applicable thereto from time to
time, (ii) the terms of each Assignment and Acceptance Agreement delivered to
and accepted by it, (iii) the amount of any principal or interest due and
payable or to become due and payable from Borrower to each Bank, (iv) the amount
of any sum received by Agent from Borrower under any Credit Document and each
Bank's share thereof, and (v) the interest rate for each Loan. The entries made
in such register shall be conclusive and binding for all purposes, absent
manifest error.
(i) Notes Optional.
(i) Each Bank shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Bank
resulting from each Loan made hereunder from time to time, including the
amounts of principal and interest payable and paid to such Bank from time to
time hereunder.
(ii) The entries made in the accounts maintained pursuant to Section
2.5(h) and the foregoing subsection (i) of this clause (i) shall be prima
facie evidence of the existence and amounts of the Loans therein recorded;
provided, however, that neither the failure of Agent or any Bank to maintain
such accounts, nor any error therein, shall in any manner affect the
obligation of Borrower to repay the Loans in accordance with their terms.
(iii) Any Bank may request that Borrower's Obligations to it in respect
of Loans be evidenced by an appropriate Note. In such event, Borrower shall
prepare, execute and deliver to such Bank such Note, payable to the order of
such Bank. Thereafter, the Obligations evidenced by such Note, and interest
thereon, shall at all times (including after any assignment pursuant to
Section 8.11) be represented by one or more Notes payable to the order of the
payee named therein or any assignee, except to the
19
extent that any such Bank or assignee subsequently returns any such Note(s)
for cancellation and requests that such Obligations once again be evidenced
as described in Section 2.5(h) and the foregoing subsection (i) of this
clause (i).
Section 2.6 Fees.
(a) Fees Payable. Borrower shall pay the following fees (the "Fees") at the
Agency Office:
(i) to CSFB, the fees provided for in that certain fee letter between
CSFB and Borrower dated as of June 5, 2000, in the amounts and at the times
specified in such fee letter;
(ii) to Agent for the benefit of all Banks (based on their respective
Commitments), a utilization fee (the "Utilization Fee") accruing for each day
during the period from the Closing Date to the Termination Date in an amount
equal to (i) the Utilized Percentage on such day multiplied by (ii) 1/360th
of the Applicable Utilization Fee Rate in effect on such day. The accrued
portion of the Utilization Fee shall be payable quarterly in arrears on the
last Banking Day of March, June, September and December of each year, on the
Termination Date and thereafter on demand;
(iii) to Agent for the benefit of all Banks (based on their respective
Commitments), a facility fee in respect of such Banks' Commitments (the
"Facility Fee") accruing for each day during the period from the Closing Date
to the Termination Date in an amount equal to (i) the Aggregate Commitments
on such day multiplied by (ii) 1/360th of the Applicable Facility Fee Rate in
effect on such day. The accrued portion of the Facility Fee shall be payable
quarterly in arrears on the last Banking Day of March, June, September and
December of each year, on the Termination Date and thereafter on demand;
(iv) to Agent, for the benefit of all Banks committed to make Committed
Loans (based upon their respective Commitments), a fee for each L/C accruing
for each day during the period from the date of issuance thereof to the date
of termination thereof equal to amount of outstanding L/C Obligations for
such L/C on such day multiplied by 1/360th of the Applicable L/C Fee Rate in
effect on such day. The accrued portion of such fee shall be payable
quarterly in arrears on the last Banking Day of March, June, September and
December of each year, on the Termination Date and thereafter on demand; and
(v) to the L/C Issuer, exclusively for the account of the L/C Issuer,
(A) a fee for each L/C in such amount, and calculated and payable on such
basis, as is set forth in a separate letter agreement between Borrower and
the L/C Issuer, and (B) on demand, such standard fees, charges and expenses
as are customarily charged or incurred by the L/C Issuer from time to time in
connection with the issuance, amendment, transfer, administration or
cancellation of, or payment under, the L/Cs, as referred to in a separate
letter agreement between Borrower and the L/C Issuer.
20
The fees referred to in Sections 2.6(a)(iv) and (v) are hereinafter sometimes
referred to individually as an "L/C Fee" and collectively as the "L/C Fees".
(b) Fees Nonrefundable. Borrower acknowledges that all Fees (i) are fully
earned on the date on which they are payable, (ii) are nonrefundable when paid
(exclusive of over-payments and other manifest errors), and (iii) are for the
sole account of the Person for whose benefit they are payable.
Section 2.7 Increased Costs and Capital Requirements.
(a) Reserves and Similar Requirements. If at any time or from time to time
after the date of this Agreement any Directive, or a change in any existing or
future Directive (including any change resulting from the operation of any
transitional or phase-in requirements) or in the interpretation or application
thereof by any governmental or judicial authority, or any action pursuant
thereto, or compliance in good faith by Agent or any Bank with any request or
Directive imposed or modified by any central bank or by any other financial,
monetary or other governmental authority (any of the foregoing, a "Change in
Directives", and Agent, or any Bank, if subject to a Change in Directives, an
"Affected Person")) shall (i) impose, increase, modify or apply any reserve
(including basic, supplemental, marginal and emergency reserves, but excluding
reserve requirements which are expressly included in the determination of any
interest rate pursuant to the provisions hereof), special deposit, compulsory
loan or similar requirement against assets held by, or deposits or other
liabilities with or for the account of, or credit extended by, or any other
acquisition of funds by, any office of an Affected Person; or (ii) impose on any
Affected Person any fee, charge, tax (other than "Indemnified Taxes," "Other
Taxes" and "Excluded Taxes," to which the provisions of Section 2.8 shall apply)
or condition with respect to this Agreement, any Note, any L/C, any Commitment
or any part thereof, or any sums outstanding or payable hereunder or thereunder,
and the result of any of the foregoing is to increase the cost to such Affected
Person of making or maintaining such Commitment or any Loan, or to reduce the
amount of any sum received or receivable by such Affected Person with respect to
such Commitment, any L/C, any Loan or any interest, Fees or other sums payable
hereunder or under any Note, then, upon demand by such Affected Person, Borrower
shall, subject to clause (c) of this Section 2.7, pay with respect to any
affected Commitment (including Loans thereunder), promptly for the account of
the relevant Affected Person, such additional amount or amounts as such Affected
Person, in good faith, certifies in writing to Borrower shall compensate such
Affected Person for the amount of such increased cost or reduced amount
receivable, such certification shall state that similar demands have been made
to other customers of such Affected Person that are subject to provisions
similar to this Section 2.7(a) and shall be conclusive and binding for all
purposes hereof absent manifest error.
(b) Capital Adequacy. If any Change in Directives shall impose, modify or
deem applicable any capital adequacy or similar requirement (including without
limitation a request or requirement which affects the manner in which any Bank
(including the L/C Issuer) allocates capital resources to its commitments,
including its obligations hereunder) and as a result thereof, in the sole
opinion of such Bank, the rate of return on such Bank's capital as a consequence
of its obligations hereunder (including with respect to L/Cs) is or will be
reduced to a level below that which such Bank could have achieved but for such
circumstances, then upon notice to Borrower through Agent, Borrower shall,
subject to clause (c) of this Section 2.7, pay
21
to such Bank such additional amount or amounts as shall compensate such Bank for
such reduction in rate of return for (i) any Loans that are outstanding under
any Interest Period commencing after such Change in Directives becomes
effective, (ii) any Loans bearing interest at the Base Rate with respect to the
period, or L/Cs that are outstanding, after the end of the calendar month in
which such Change in Directives becomes effective, and (iii) any portion of the
affected Bank's Commitment outstanding with respect to the period after the end
of the calendar month in which such Change in Directives becomes effective. If a
Bank determines that it may be entitled to claim any additional amounts pursuant
to this Section 2.7(b) during the next succeeding Interest Period or month, as
the case may be, it shall promptly notify, through Agent, Borrower and each
other Bank of the event by reason of which it has become so entitled. A
certificate as to any such additional amount or amounts submitted by a Bank,
through Agent, to Borrower and the other Banks shall certify that similar
demands have been made to other customers of such Bank that are subject to
provisions similar to this Section 2.7(b) and shall, in the absence of manifest
error, be final and conclusive. In determining such amount, a Bank may use any
reasonable averaging and attribution methods.
(c) Limitation. Notwithstanding the foregoing, Borrower shall be obligated
to compensate Agent, or any Bank, for any amount described in Section 2.7(a) or
(b) only if such amount arises or occurs during (i) any time period commencing
not more than 90 days prior to the date on which such Bank notifies Agent and
Borrower, or Agent notifies Borrower, that such Bank or Agent, as the case may
be, proposes to demand such compensation and (ii) any time period during which,
because of the unannounced retroactive application of the relevant Change in
Directives, such Bank could not have known that such amount might arise or
accrue.
(d) Mitigation. If Agent, or any Bank, claims any additional amounts
payable pursuant to Section 2.7(a) or (b), Agent, or such Bank, as the case may
be, shall use its reasonable efforts (consistent with its internal legal policy
and regulatory restrictions) to change the jurisdiction of its Applicable
Lending Office or any other office from which it makes or maintains any
extension of credit under this Agreement, if the making of such change would
avoid the need for, or reduce the amount of, any such additional amounts which
may thereafter accrue and would not, in the sole judgment of Agent or such Bank,
as the case may be, be otherwise disadvantageous to it in any material respect.
(e) Survival. Without prejudice to the survival of any other agreement of
Borrower hereunder, the agreement and obligations of Borrower contained in this
Section 2.7 shall survive the termination of the Commitments and the payment in
full of the Obligations.
Section 2.8 Taxes.
(a) Payments Free of Taxes. Any and all payments or reimbursements made
hereunder or under any other Credit Document shall be made free and clear of and
without deduction for any and all present and future taxes, levies, imposts,
deductions, fees, charges or withholdings of any kind, or any interest,
penalties or additions to tax or liabilities whatsoever with respect thereto
("Taxes"), excluding (i) in the case of payments to each Bank, (A) Taxes imposed
on, or measured by, its net income or receipts (including branch profits tax)
and franchise taxes imposed on it by the jurisdiction under the laws of which
such Bank is organized (or any political subdivision thereof), or by the
jurisdiction of such Bank's Applicable Lending
22
Office (or any political subdivision thereof) and (B) U.S. Withholding Taxes, if
and to the extent that such U.S. Withholding Taxes shall be in effect and shall
be applicable (after giving effect to any treaty or other applicable basis for
exemption) under current laws and regulations (including judicial and
administrative interpretations thereof) to payments to be made for the account
of such Bank's Applicable Lending Office on the Closing Date, or, in the case of
an Assignee, on the effective date of the Assignment and Acceptance Agreement
pursuant to which it became a Bank, or on the date the Bank changes its
Applicable Lending Office, or, if such withholding taxes result therefrom,
changes any other office from which such Bank makes or maintains any extension
of credit under this Agreement (other than any change pursuant to Section
2.8(e)); and (ii) in the case of payments to Agent, (A) Taxes imposed on, or
measured by, its net income or receipts (including branch profits tax) and
franchise taxes imposed on it by the jurisdiction under the laws of which it is
organized (or any political subdivision thereof) or by any jurisdiction in which
Agent is doing business (other than where such circumstances would not exist but
for a connection arising in respect of this Agreement) and (B) U.S. Withholding
Taxes, if and to the extent that such U.S. Withholding Taxes shall be in effect
and shall be applicable (after giving effect to any treaty or other applicable
basis for exemption) under current laws and regulations (including judicial and
administrative interpretations thereof) to payments to Agent under any Credit
Document on the Closing Date (all Taxes described in clauses (i) and (ii) being
referred to as "Excluded Taxes" and all Taxes not described in clause (i) or
(ii) being hereinafter referred to as "Indemnified Taxes"). Subject to Section
2.8(h), if Borrower shall be required by law to deduct any Indemnified Taxes
from or in respect of any sum payable hereunder or under any other Credit
Document to any Bank or Agent (each of Agent and any Bank to which any rights
accrue under this Section 2.8, a "Tax Indemnitee"), (1) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
such Tax Indemnitee receives an amount equal to the sum it would have received
had such deductions of Indemnified Taxes not been made, (2) Borrower shall make
such deductions, and (3) Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable law
(and shall be entitled to any Tax Credit with respect to such payment pursuant
to Section 2.8(g)).
(b) Other Taxes. In addition, Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies (but not any tax on any transfer or assignment of, or any
participation in, the Loans (or a portion thereof) or this Agreement) that arise
from any payment made hereunder or under any other Credit Document or from the
execution, delivery, registration, filing or recording of, or otherwise with
respect to, this Agreement or any other Credit Document or document delivered
hereunder or under any other Credit Document (hereinafter referred to as "Other
Taxes"). Agent, and each Bank, represents that, to its knowledge, except for any
such Other Taxes as may be imposed under the federal, state or local laws of the
United States of America (or any political subdivision thereof), it is not
aware, as of the date of this Agreement, of any Other Taxes that may apply to
payments to it under this Agreement or any Note or to the transactions by it
that are contemplated by this Agreement.
(c) Tax Indemnity. Borrower will indemnify each Tax Indemnitee for the full
amount of Indemnified Taxes (but not any Tax on any transfer or assignment of,
or any participation in, the Loans or this Agreement) or Other Taxes (and any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section) paid by such Tax
23
Indemnitee, including any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto, whether or not such Indemnified Taxes
or Other Taxes were correctly or legally asserted. Any indemnification payment
to which any Tax Indemnitee is entitled pursuant to this clause (c) shall be
made within 30 days from the date such Tax Indemnitee makes written demand
therefor; provided, however, that Borrower shall not be obligated to make
payment to such Tax Indemnitee pursuant to this Section 2.8(c) in respect of
penalties, interest or additions to taxes attributable to any Indemnified Taxes
or Other Taxes if (i) written demand for such Indemnified Taxes or Other Taxes
has not been made by such Tax Indemnitee within 60 days from the date on which
such Tax Indemnitee received written notice of the imposition of such
Indemnified Taxes or Other Taxes by the relevant taxing or governmental
authority, but only to the extent such penalties, interest and additions to
taxes are attributable to such failure or delay by such Tax Indemnitee in making
such written demand, or (ii) such penalties, interest or additions to taxes are
attributable to the gross negligence or willful misconduct of such Tax
Indemnitee. After such Tax Indemnitee receives written notice of the imposition
of any Indemnified Taxes or Other Taxes that are subject to this Section 2.8(c),
such Tax Indemnitee shall act in good faith to promptly notify Borrower of
Borrower's Obligations under this Section 2.8(c); provided, however, that,
except to the extent expressly provided in clause (i) of the preceding sentence,
no failure to give notice shall prejudice any Tax Indemnitee's rights hereunder.
(d) Evidence of Tax Payments. Within 45 days after the date of any payment
of Indemnified Taxes with respect to any Tax Indemnitee, Borrower shall (as to
Indemnified Taxes paid by it) furnish to Agent, at the Agency Office, the
original or a certified copy of a receipt or other evidence reasonably
satisfactory to Agent of payment thereof.
(e) Change of Applicable Lending Office, Etc. Any Tax Indemnitee claiming
any additional amounts payable pursuant to this Section 2.8 shall use its
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Applicable Lending Office or any
other office from which such Tax Indemnitee makes or maintains any extension of
credit under this Agreement, if the making of such a change would avoid the need
for or reduce the amount of any such additional amounts which may thereafter
accrue and would not, in the sole judgment of such Tax Indemnitee, be otherwise
disadvantageous to such Tax Indemnitee in any material respect. In addition,
each Tax Indemnitee shall take all reasonable actions reasonably requested by
Borrower in writing that are (i) without material risk and cost to such Tax
Indemnitee, and (ii) consistent with the internal policies of such Tax
Indemnitee and applicable legal and regulatory restrictions, in order to (1)
maintain all exemptions, if any, available to it from withholding taxes (whether
available by treaty or existing administrative waiver) and (2) otherwise to
minimize any amounts payable by Borrower under this Section 2.8; provided,
however, that in each case any cost relating to such action requested by
Borrower shall be borne by Borrower.
(f) Survival. Without prejudice to the survival of any other agreement of
Borrower hereunder, the agreement and obligations of Borrower contained in this
Section 2.8 shall survive the payment in full of the Obligations for a period
expiring concurrently with the expiration of the statute of limitations
applicable to claims made by the relevant taxing authorities to collect Taxes or
Other Taxes.
24
(g) Tax Credits. If any Tax Indemnitee shall receive a credit or refund
from a taxing authority with respect to, and actually resulting from, an amount
of Indemnified Taxes or Other Taxes actually paid to or on behalf of such Tax
Indemnitee by Borrower, which credit or refund would not arise but for such
Indemnified Taxes or Other Taxes (a "Tax Credit"), such Tax Indemnitee shall
promptly notify Borrower of such Tax Credit. If such Tax Credit is received by
such Tax Indemnitee in the form of cash, such Tax Indemnitee shall promptly pay
to Borrower the amount so received with respect to the Tax Credit. If such Tax
Credit is not received by such Tax Indemnitee in the form of cash, such Tax
Indemnitee shall pay the amount of such Tax Credit to Borrower in cash not later
than the time prescribed by applicable law for filing the return (including
extensions of time) for such Tax Indemnitee's taxable period that includes the
period in which such Tax Indemnitee receives the economic benefit of such Tax
Credit. In any event, the amount of any Tax Credit payable by a Tax Indemnitee
to Borrower pursuant to this Section 2.8(g) shall not exceed the actual amount
of cash refunded to, or credits received and usable by, such Tax Indemnitee from
a taxing authority. In determining the amount of any Tax Credit, a Tax
Indemnitee shall use such apportionment and attribution rules as such Tax
Indemnitee customarily employs in allocating taxes among its various operations
and income sources, and such determination shall be conclusive absent manifest
error. Borrower shall promptly return to a Tax Indemnitee the amount paid to
Borrower with respect to a Tax Credit by such Tax Indemnitee if such Tax
Indemnitee is required to repay, or is determined to be ineligible for, a Tax
Credit for such amount.
(h) Withholding. Each Bank that is organized under the laws of the United
States of America or any State thereof or the District of Columbia shall deliver
to Borrower and Agent at the time or times prescribed by applicable law or
reasonably requested by Borrower two properly completed and executed originals
of Internal Revenue Service Form W-9 (or any subsequent versions thereof of
successors thereto). Each Bank organized under the laws of a jurisdiction
outside the United States (a "Foreign Bank") as to which payments to be made
under any Credit Document are exempt from (or are subject to a reduced rate of)
U.S. Withholding Tax under an applicable statute or tax treaty shall provide to
Borrower and Agent two properly completed and executed originals of (i) Internal
Revenue Service Form W-8BEN or Form W-8ECI claiming exemption from U.S.
Withholding Tax under an applicable treaty or as "effectively connected income,"
or (ii) in each case of a Foreign Bank that is not a "bank" (for applicable
United States federal income tax purposes) and that does not comply with the
requirements of clause (i) of this Section 2.8(h), (x) a statement to the effect
that such Bank is eligible for a complete exemption from withholding of U.S
Withholding Tax under the "portfolio interest" exemption, and (y) two duly
completed and signed originals of Internal Revenue Service Form W-8BEN, or (iii)
any other applicable form, certificate or document prescribed by the federal
government of the United States of America certifying as to such Foreign Bank's
entitlement to exemption from (or reduced rate of) U.S. Withholding Tax with
respect to payments to be made to such Foreign Bank under any Credit Document
(each form, statement, certificate and document described in the first sentence
of this Section 2.8(h) or in clauses (i), (ii) and (iii) of this Section 2.8(h)
is referred to as a "Certificate of Exemption"). Prior to becoming a Bank under
this Agreement and on or before the date the Certificate of Exemption previously
submitted by a Foreign Bank expires or becomes obsolete, such Foreign Bank, if
legally able to do so, shall provide a newly executed Certificate of Exemption
to Borrower and Agent. Notwithstanding anything to the contrary, if a Foreign
Bank is entitled to an exemption (or reduced rate) with respect to payments to
be made to such Foreign Bank under any Credit
25
Document and does not provide a Certificate of Exemption to Borrower and Agent
within the time periods set forth in the preceding sentence, Borrower shall
withhold taxes from payments to such Foreign Bank at the applicable statutory
rates and Borrower shall not be required to pay any additional amounts as a
result of such withholding; provided, however, that all such withholding shall
cease (or be reduced, as appropriate) upon delivery by such Foreign Bank of a
Certificate of Exemption to Borrower and Agent in accordance with the relevant
law. In those circumstances as shall be necessary to allow payments hereunder to
be made free of (or at a reduced rate of) U.S. Withholding Tax, at the written
request of Borrower, Agent shall provide Borrower with two properly completed
executed originals of Internal Revenue Service Form W-8IMY (or any subsequent
versions thereof or successors thereto), together with such documentation to be
supplied therewith as shall have been received from the Banks pursuant hereto.
Section 2.9 Replacement of Bank; Reimbursement for Bid Rate Loans.
(a) If (i) a Bank delivers a notice pursuant to Section 2.4(f), (ii) a Bank
makes a demand for additional amounts pursuant to Section 2.7, or (iii) a Bank
makes a demand for additional amounts pursuant to Section 2.8 or (iv) Borrower
is required to pay additional amounts in respect of a Bank pursuant to Section
2.8, Borrower shall have the right, at its expense, to require the affected Bank
to assign without recourse (in accordance with Section 8.11) all of such Bank's
rights and obligations under the Credit Documents to another Bank or to another
Person approved by Agent (which approval shall not be unreasonably withheld or
delayed) that is willing to, and that does, assume such rights and obligations;
provided that (1) no such assignment shall conflict with any applicable
Directive, and (2) Borrower shall pay (or the replacement Bank shall purchase)
all principal, interest, Fees and other amounts owed to the replaced Bank on or
prior to the effective date of such assignment.
(b) Notwithstanding anything contained herein to the contrary, no Bank
shall be entitled to receive any additional amounts pursuant to Section 2.7 or
2.8 with respect to any Bid Rate Loan if the circumstance giving rise to such
Bank's request for such additional amounts was applicable to such Bank at the
time of submission of the Bid Request pursuant to which such Bid Rate Loan was
made.
Section 2.10 Cash Collateral Account.
(a) All amounts required to be deposited as cash collateral with Agent
pursuant to Section 2.3(a) or Section 6.2 shall be deposited in a cash
collateral account (such account, and any replacement or supplemental account
into which any such cash collateral may at any time be deposited, collectively,
the "Cash Collateral Account") established by Borrower with Agent and under the
dominion and control of Agent, to be held or applied, or released for
application, as provided in this Section 2.10. Borrower hereby grants to Agent,
for the ratable benefit of Agent, the L/C Issuer and the Banks, as security for
the payment and performance of the Obligations, a security interest in and lien
on (i) the Cash Collateral Account, (ii) all amounts now or at any time on
deposit therein, (iii) all investment property or other financial assets from
time to time credited thereto, and (iv) all proceeds of any of the foregoing, in
whatever form. Upon the termination of the Commitments, the termination,
expiration, drawing in full or cancellation of all outstanding L/Cs and payment
in full of all Obligations, Agent (and the Banks, if required under applicable
law) shall take, at Borrower's expense, such actions as
26
Borrower may reasonably request to effect the release of the security interest
and lien granted pursuant to this clause (a).
(b) If and when any portion of the L/C Obligations on which a deposit of
cash collateral was based (the "Relevant Contingent Exposure") shall become
fixed (a "Direct Exposure") as a result of the payment by the L/C Issuer of a
draft presented under an L/C, the amount of such Direct Exposure (but not more
than the amount in the Cash Collateral Account at the time) shall be withdrawn
by Agent from the Cash Collateral Account and shall be paid to the L/C Issuer to
be applied against such Direct Exposure and the Relevant Contingent Exposure
shall thereupon be reduced by such amount. If at any time the amount in the Cash
Collateral Account exceeds the Relevant Contingent Exposure, the excess amount
shall, so long as no Default or Event of Default shall have occurred and be
continuing, be withdrawn by Agent and paid to Borrower. If a Default or an Event
of Default shall have occurred and be continuing, such excess amount shall be
retained in the Cash Collateral Account and, if and when requested by the
Majority Banks during the continuance of an Event of Default, shall be withdrawn
by Agent and applied to repay the Loans, Unreimbursed Drawings and other due and
unpaid Obligations. Any amount remaining after payment of such Obligations in
full shall be paid to Borrower. If at any time the amount in the Cash Collateral
Account is less than the Relevant Contingent Exposure, Borrower shall promptly
deposit in the Cash Collateral Account additional cash collateral in the amount
of such shortfall.
(c) Interest and other payments and distributions made on or with respect
to the cash collateral held by Agent shall be for the account of Borrower and
shall constitute cash collateral to be held by Agent or returned to Borrower in
accordance with clause (b) of this Section 2.10; provided that Agent shall have
no obligation to invest any cash collateral on behalf of Borrower or any other
Person. Beyond the exercise of reasonable care in the custody thereof, Agent
shall have no duty as to any cash collateral in its possession or control or in
the possession or control of any agent or bailee or any income thereon or as to
the preservation of rights against prior parties or any other rights pertaining
thereto. Agent shall be deemed to have exercised reasonable care in the custody
and preservation of the cash collateral in its possession if the cash collateral
is accorded treatment substantially equal to that which it accords its own
property, and shall not be liable or responsible for any loss or damage to any
of the cash collateral, or for any diminution in the value thereof, by reason of
the act or omission of any agent or bailee selected by Agent in good faith. All
expenses and liabilities incurred by Agent in connection with taking, holding
and disposing of any cash collateral (including customary custody and similar
fees with respect to any cash collateral held directly by Agent) shall be paid
by Borrower from time to time upon demand. Upon an Event of Default, Agent shall
be entitled to apply (and, at the request of the Majority Banks but subject to
applicable law, shall apply) cash collateral or the proceeds thereof to payment
of any such expenses, liabilities and fees.
ARTICLE III
CONDITIONS PRECEDENT
--------------------
Section 3.1 Closing Date Conditions Precedent. The effectiveness of this
Agreement, the obligation of each Bank to make its ratable share of Loans on the
Closing Date or any date thereafter and the obligation of the L/C Issuer to
issue L/Cs on the Closing Date or any date thereafter are subject to the
condition precedent that Agent shall have received the
27
following items, on or before the Closing Date, in form and substance reasonably
satisfactory to Agent in its sole discretion:
(a) Articles of Incorporation or Other Organizational Documents. A copy of
the articles of incorporation or other organizational documents of Borrower and
each amendment thereto, certified by the Secretary of State of the State of
Borrower's incorporation or other appropriate governmental authority as being a
true and correct copy thereof, such certification to be dated a recent date
prior to the Closing Date.
(b) Certificate of Good Standing. A certificate or other appropriate
document from the Secretary of State of the State of Borrower's incorporation or
other governmental authority listing the articles of incorporation or other
organizational documents of Borrower and each amendment thereto on file in the
office of such Secretary of State or other governmental authority, and, if
available, certifying that (i) such amendments are the only amendments to such
articles of incorporation or other organizational documents on file in such
office, (ii) Borrower has paid all franchise taxes to the date of such
certificate and (iii) Borrower is duly incorporated and in good standing under
the laws of the jurisdiction of Borrower's incorporation, such certification to
be dated a recent date prior to the Closing Date.
(c) By-Laws and Resolutions. Copies of (i) Borrower's by-laws or other
equivalent organizational documents, (ii) the resolutions of Borrower's Board of
Directors approving each Credit Document to which Borrower is a party, and (iii)
all documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to each such Credit Document, certified as of
the Closing Date as true and correct in each case by a Responsible Officer of
Borrower.
(d) Incumbency Certificate. A certificate of a Responsible Officer of
Borrower, dated as of the Closing Date, certifying the names and true signatures
of the officers of Borrower authorized to sign each Credit Document to which
Borrower is a party and the other documents to be delivered by Borrower pursuant
to any Credit Document.
(e) Opinions of Counsel. A favorable opinion of (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, as
special New York counsel to Borrower, substantially in the form of Exhibit D-1,
and (ii) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., as in-house counsel to Borrower, substantially
in the form of Exhibit D-2, in each case dated the Closing Date and addressed to
Agent and the Banks.
(f) Fees. All Fees and expenses that are required under this Agreement or
pursuant to the fee letter described in Section 2.6(a)(i) to be paid by Borrower
on or before the Closing Date and for which Borrower receives a written invoice
at least one Banking Day prior to the Closing Date.
(g) Notes. If requested by any Bank, fully executed Notes completed, issued
and delivered in conformity with this Agreement with respect to the Committed
Loans and Bid Rate Loans, if any, of such Bank.
(h) Officer's Certificate. A certificate of a Responsible Officer of
Borrower, dated the Closing Date, stating (which statements shall be true and
correct) that: (i) on the Closing Date and after giving effect to the funding of
Loans on the Closing Date, if any, no
28
Default or Event of Default has occurred and is continuing; (ii) the
representations and warranties set forth in Article IV are true and correct in
all material respects on and as of such date with the same effect as though made
on and as of such date; and (iii) neither Borrower nor any of its Material
Subsidiaries is in material default under any material agreement, indenture,
credit agreement or other document to which it is a party.
(i) Confirmation of Agent for Service. Confirmation from CT Corporation
System of its acceptance of its appointment as agent for service of process as
required under Section 8.13.
(j) Termination of Existing Credit Agreement. Evidence that all commitments
under the Second Amended and Restated Credit Agreement, dated as of November 21,
1997, among Borrower (as successor by merger to CalEnergy Company, Inc.), the
banks and other financial institutions parties thereto, CSFB, as L/C Issuer,
▇▇▇▇▇▇ Commercial Paper Inc., as Documentation Agent, CSFB, as Administrative
Agent, and the Co-Agents named therein, have been terminated and that all
obligations due and payable thereunder have been paid in full.
Section 3.2 Conditions Precedent to Each Loan and Each L/C. The commitment
of each Bank to make each Loan and of the L/C Issuer to issue each L/C shall be
subject to the further conditions precedent that, on the Funding Date therefor:
(a) Representations and Warranties; No Defaults; Aggregate Commitments Not
Exceeded. The following statements shall be true (and the delivery of a Notice
of Borrowing or Request for L/C Issuance shall be deemed to constitute a
representation and warranty by Borrower that on such Funding Date such
statements are true):
(i) The representations and warranties contained in Article IV of this
Agreement are true and correct in all material respects on and as of the date
of the making of such Loan or the issuance of such L/C, before and after
giving effect to such Loan or L/C and to any other Loans to be made or L/Cs
to be issued contemporaneously therewith, and to the application of the
proceeds therefrom, as though made on and as of such date (except to the
extent that such representations and warranties are specifically limited to a
prior date, in which case such representations and warranties shall be true
and correct in all material respects on and as of such prior date);
(ii) No Default or Event of Default has occurred and is continuing, or
would result from such Loan or L/C or any other Loans to be made or L/Cs to
be issued contemporaneously therewith, or from the application of the
proceeds thereof; and
(iii) After giving effect to (A) such Loan or L/C, together with all
other Loans to be made or L/Cs to be issued contemporaneously therewith, and
(B) the repayment of any Loans that are to be contemporaneously repaid at the
time such Loan is made or L/C issued, such Loan or L/C will not result in (X)
the sum of the then current amount of outstanding Loans plus the then current
amount of L/C Outstandings exceeding the Aggregate Commitments, or (Y) the
then current amount of L/C Outstandings exceeding the L/C Sublimit.
29
(b) Notice of Borrowing/Bids Accepted/L/C Issuance Request.
(i) In connection with the making of a Committed Loan, Borrower shall
have timely delivered to Agent a Notice of Borrowing in accordance with
Section 2.1(c) with respect thereto;
(ii) in connection with the issuance of an L/C, (A) Borrower shall have
timely delivered to the L/C Issuer and to Agent an L/C Issuance Request in
accordance with Section 2.2(b) with respect to such L/C, if applicable, (B)
the L/C Issuer shall have accepted the form of proposed L/C in accordance
with Section 2.2(b), if required by that Section, (C) the conditions
expressly set forth in Section 2.2(b) shall have been fulfilled, and (D) no
circumstance described in Section 2.2(b)(iii) shall exist; and
(iii) in connection with the making of a Bid Rate Loan, the related Bid
shall have been timely accepted by Borrower in accordance with Section
2.1(e).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 4.1 Representations and Warranties. In order to induce Agent and
each Bank to enter into this Agreement and to induce each Bank to make the Loans
and the L/C Issuer to issue the L/Cs hereunder, Borrower represents and warrants
to Agent and each Bank as follows:
(a) Organization. Borrower and each of its Material Subsidiaries are duly
organized and validly existing under the Laws of the jurisdictions of their
formation, and are properly qualified to do business and in good standing in
every jurisdiction where the failure to maintain such qualification or good
standing would reasonably be expected to have a Material Adverse Effect.
(b) Authorization of Credit Documents. The execution, delivery and
performance of this Agreement and each of the Credit Documents by Borrower are
within its corporate powers and have been duly authorized. Each of the Credit
Documents to which Borrower is a party has been validly executed and delivered
by Borrower.
(c) Consents. The execution, delivery and performance of each of the Credit
Documents to which Borrower is a party do not and will not require any
registration with, consent or approval of, notice to, or other action to, with
or by, any Governmental Authority, regulatory body or any other Person, except
for (i) filings required by federal or state securities laws (which filings have
been made and true and complete copies of which have been delivered to Agent)
and (ii) other filings, authorizations, consents and approvals, all of which
have been made or obtained or the absence of which would not reasonably be
expected to have a Material Adverse Effect.
(d) No Conflicts. The execution, delivery and performance by Borrower of
the Credit Documents will not (i) violate (A) the articles of incorporation or
by-laws (or comparable documents) of Borrower or any of its Material
Subsidiaries, (B) any applicable Law or (C) any provision of any material
contract, agreement, indenture or instrument to which
30
Borrower or any of its Material Subsidiaries is a party or by which any of its
or their respective properties is bound, (ii) be in conflict with, or result in
a breach of or constitute a default under, any contract, agreement, indenture or
instrument referred to in the preceding subclause (d)(i)(C), (iii) result in the
creation or imposition of any Lien on the property of Borrower or any of its
Material Subsidiaries other than Permitted Liens, or (iv) give to any Person
rights to cancel, terminate or suspend performance of their obligations to
Borrower or any of its Material Subsidiaries under, or accelerate payment of
amounts owed by Borrower or any of its Material Subsidiaries to others under,
any of the foregoing, in the case of any of the foregoing subclauses other than
subclause (d)(i)(A), that would reasonably be expected to have a Material
Adverse Effect.
(e) Enforceability of Credit Documents. Each Credit Document to which
Borrower is a party is a legal, valid and binding agreement of Borrower,
enforceable against Borrower in accordance with its terms, except for bankruptcy
and similar laws affecting the enforcement of creditors' rights generally and
for the application of general equitable principles.
(f) Compliance with Law. Borrower, and each of its Material Subsidiaries,
is in compliance with all applicable Laws (including Environmental Laws) that
such Person's failure to comply with would reasonably be expected to have a
Material Adverse Effect.
(g) No Litigation. There are no actions, suits, proceedings, claims or
disputes pending or, to Borrower's knowledge, threatened against or affecting
Borrower or any of its Material Subsidiaries, or any of its or their respective
properties or assets, before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, that, in the
aggregate, would reasonably be expected to have a Material Adverse Effect. There
is no injunction, writ, preliminary restraining order or any other order of any
nature issued by an arbitrator, court or other Governmental Authority directing
that any material aspect of the transactions expressly provided for in any of
the Credit Documents not be consummated as herein or therein provided.
(h) Financial Condition. The consolidated balance sheet of the Borrower and
its Subsidiaries as at December 31, 1999, and the related consolidated
statements of income, cash flows and stockholders' equity for the fiscal year
ended on such date, certified by Deloitte & Touche LLP, copies of which have
heretofore been furnished to Agent with sufficient copies for each Bank, are
complete and correct in all material respects and present fairly the financial
condition of the Borrower and its Subsidiaries on a consolidated basis as at
such date, and the consolidated results of their operations and cash flows for
the fiscal year then ended. The consolidated balance sheet of Borrower and its
Subsidiaries as at March 31, 2000, and the related consolidated statements of
income, cash flows and stockholders' equity for the fiscal quarter ended on such
date, copies of which have heretofore been furnished to Agent with sufficient
copies for each Bank, are complete and correct in all material respects and
present fairly the consolidated financial condition of Borrower and its
Subsidiaries as at such date, and the consolidated results of their operations
and cash flows for the fiscal quarter then ended (subject to normal year-end
audit adjustments). All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as may be disclosed
therein).
31
(i) No Material Adverse Effect. Since March 31, 2000, there has been no
Material Adverse Effect.
(j) Taxes. Borrower and each of its Material Subsidiaries have filed or
caused to be filed all federal and other material tax returns which are required
by Law to be filed, and have paid all material taxes shown to be due and payable
on said returns or on any assessments made against it or any of its property
(other than those the amount or validity of which is currently being contested
in good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of Borrower or the
applicable Material Subsidiary, as the case may be).
(k) ERISA and IRC Compliance and Liability.
(i) No Termination Event has occurred that, together with all other
Termination Events that have occurred, has had, or would reasonably be
expected to have, a Material Adverse Effect.
(ii) No proceeding, claim, lawsuit or investigation is existing or, to
the knowledge of Borrower, threatened concerning or involving any (A)
employee welfare benefit plan (as defined in Section 3(l) of ERISA) currently
maintained or contributed to by Borrower or any of its Subsidiaries or any of
its ERISA Affiliates to which Borrower or any of its Subsidiaries may have
liability, (B) Pension Plan, or (C) to the knowledge of Borrower,
Multiemployer Plan, in any such case, that has resulted in or would
reasonably be expected to result in a Material Adverse Effect.
(iii) Neither Borrower nor any of its Subsidiaries has any obligation
to provide post-retirement welfare benefits under any Employee Benefit Plan
or other plan or agreement that has resulted in or would reasonably be
expected to result in a Material Adverse Effect.
(l) Margin Regulations. Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation T, U or X of the Board of Governors of the Federal
Reserve System), and no proceeds of any Loan will be used in a manner that would
violate, or result in a violation of, such Regulation T, U or X.
(m) Investment Company Act; Public Utility Holding Company Act. Neither
Borrower nor any of its Material Subsidiaries is an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. Either:
(i) Neither Borrower nor any of its Subsidiaries is a "holding company"
or a "subsidiary company" of a "public utility holding company" as defined in
PUHCA; or
(ii) an exemption from regulation as a registered utility holding
company under PUHCA applies to Borrower and its Subsidiaries, or, if no such
exemption is available, Borrower (or such Subsidiary, as the case may be) is
a duly registered holding
32
company under PUHCA and has obtained all requisite approvals thereunder for
Borrower's incurrence and performance of the Obligations, which approvals are
in full force and effect.
(n) Environmental Matters.
(i) There are no claims, liabilities, investigations, litigation,
notices of violation or liability, administrative proceedings, judgments or
orders, whether asserted, pending or threatened, relating to any liability
under or compliance with any applicable Environmental Law, against Borrower
or any of its Material Subsidiaries or relating to any real property
currently or formerly owned, leased or operated by Borrower or any of its
Material Subsidiaries, that would reasonably be expected to have a Material
Adverse Effect.
(ii) No Hazardous Materials have been or are present or are being
spilled, discharged or released on, in, under or from property (real,
personal or mixed) currently or formerly owned, leased or operated by
Borrower or any of its Material Subsidiaries in any quantity or manner
violating, or resulting in liability under, any applicable Environmental Law,
which violation or liability would reasonably be expected to have a Material
Adverse Effect.
(o) Disclosure. No representation or warranty of Borrower (excluding
projections, forecasts and similar information) contained in any Credit Document
or any other document, certificate or written statement furnished to Agent or
any Bank by or on behalf of Borrower for use in connection with the Credit
Documents contains any untrue statement of a material fact or omitted, omits or
will omit to state a material fact necessary in order to make the statements
contained herein or therein, when taken as a whole, not misleading in any
material respect in light of the circumstances in which the same were made.
(p) Rank of Indebtedness. The Obligations outstanding hereunder are, and
will continue to be, pari passu with all other existing and future senior
unsecured indebtedness of Borrower.
(q) Regulatory Restrictions on Distributions. No Material Subsidiary is
subject to any prohibition, restriction or limitation on its ability to make or
pay dividends or other distributions to Borrower (i) that has been imposed by a
Governmental Authority, and (ii) that, as imposed on any date on which this
representation is made or is deemed made, would reasonably be expected to have a
Material Adverse Effect.
ARTICLE V
COVENANTS OF BORROWER
---------------------
Section 5.1 Affirmative Covenants. So long as any Obligations shall remain
outstanding or any of the Commitments shall remain available hereunder or any
L/C is outstanding, Borrower shall, unless the Majority Banks shall otherwise
give their prior written consent:
33
(a) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Material Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or levies
imposed upon it or its property, and (ii) all lawful claims that, if unpaid,
would by Law become a Lien upon its property, in each case, to the extent that
the failure to pay and discharge such amounts, either singly or in the
aggregate, would reasonably be expected to have a Material Adverse Effect;
provided, however, that neither Borrower nor any of its Material Subsidiaries
shall be required to pay or discharge any such tax, assessment, charge or claim
which is being contested in good faith and by proper proceedings and as to which
adequate reserves have been established.
(b) Maintenance of Insurance. Maintain, and cause each of its Material
Subsidiaries to maintain, or cause to be maintained for each of its Material
Subsidiaries, with responsible and reputable insurance companies or
associations, insurance in such amounts and covering such risks (including, but
not limited to, catastrophe perils insurance (i.e., hurricane, earthquake, flood
and storm) and business interruption insurance) as is usually carried by
companies engaged in similar businesses and owning similar properties in the
same general areas in which Borrower or any of its Material Subsidiaries
operates (the "Industry Standard"); provided that if the Industry Standard is
such that the insurance coverage then being maintained by Borrower and its
Material Subsidiaries is below the Industry Standard, Borrower shall only be
required to use its reasonable best efforts to obtain the necessary insurance
coverage such that its and its Material Subsidiaries' insurance coverage equals
or is greater than the Industry Standard.
(c) Preservation of Corporate Existence, Etc. Preserve (subject to Section
5.2(b)), maintain and keep in full force and effect, and cause each of its
Material Subsidiaries to preserve, maintain and keep in full force and effect,
its corporate existence, rights (charter and statutory) and franchises, if the
failure to do so would reasonably be expected to have a Material Adverse Effect.
(d) Compliance with Laws. Comply, and cause each of its Material
Subsidiaries to comply, with the requirements of all applicable Laws, if
noncompliance would reasonably be expected to have a Material Adverse Effect.
(e) Inspection Rights. At any reasonable time and from time to time upon
reasonable notice (but not more than once in any calendar quarter unless an
Event of Default has occurred and is continuing), permit Agent or any agents or
representatives thereof, at Agent's (or the Banks') expense, to (i) examine (at
the location where normally kept) and make abstracts from the records and books
of account of, and visit the properties of, Borrower and its Material
Subsidiaries, (ii) discuss the affairs, finances and accounts of Borrower and
its Material Subsidiaries with any of their respective officers, and (iii)
following the occurrence and during the continuance of an Event of Default, (A)
discuss the affairs, finances and accounts of Borrower and its Material
Subsidiaries with Borrower's independent certified public accountants (at which
discussion, if Borrower or its Material Subsidiary or Material Subsidiaries so
requests, a representative of Borrower or such Material Subsidiary or Material
Subsidiaries shall be permitted to be present, and if such accountants should
require that a representative of Borrower be present, Borrower agrees to provide
a representative to attend such discussion), and (B) permit such accountants to
disclose to Agent any and all financial statements and other
34
reasonably requested information of any kind that they may have with respect to
Borrower and its Material Subsidiaries.
(f) Keeping of Books. Keep, and cause each of its Material Subsidiaries to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of
Borrower and its Material Subsidiaries in a form, in the case of Borrower, such
that Borrower may readily produce, no less frequently than the time periods
specified in Section 5.1(h), financial statements in accordance with GAAP
consistently applied.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause each
of its Material Subsidiaries to maintain and preserve, (i) all rights with
respect to licenses, franchises or agreements with respect to the usage of
technology or other permits, in each case, that are necessary for the ownership,
operation or maintenance of the business of the Borrower and its Material
Subsidiaries and the termination or loss of which would reasonably be expected
to have a Material Adverse Effect; and (ii) all of its properties that are
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted (subject to any customary mandatory requirement
of any contractual obligation imposed in respect of any Permitted Facility);
provided, however, that nothing in this Section 5.1(g) shall prevent Borrower or
any of its Material Subsidiaries from (A) discontinuing the operation or
maintenance of, or ceasing to preserve, any such properties or rights, or (B) if
not prohibited under Section 5.2(b), disposing of any of them, if such
discontinuance, cessation or disposal is, as determined by Borrower in good
faith, desirable in the conduct of its business or the business of any of its
Material Subsidiaries and would not reasonably be expected to have a Material
Adverse Effect.
(h) Reporting Requirements. Furnish to Agent, with sufficient copies for
each Bank (as designated by Agent):
(i) Quarterly Consolidated Financial Statements. Within sixty (60) days
after the end of each of the first three fiscal quarters of each fiscal year
of Borrower, the consolidated balance sheet of Borrower and its Subsidiaries
(on a consolidated basis) as of the end of such quarter and consolidated
statements of operations, stockholders' equity and cash flows of Borrower and
its Subsidiaries (on a consolidated basis) for such quarter and for the
period commencing at the beginning of such fiscal year and ending with the
end of such quarter, all in reasonable detail and duly certified (subject to
year-end audit adjustments) by a Responsible Officer of Borrower as having
been prepared in accordance with GAAP consistently applied;
(ii) Annual Consolidated Financial Statements. Within ninety (90) days
after the end of each fiscal year of Borrower, the consolidated balance sheet
of Borrower and its Subsidiaries (on a consolidated basis) as of the end of
such fiscal year and the consolidated statements of operations, stockholders'
equity and cash flows of Borrower and its Subsidiaries (on a consolidated
basis) for such fiscal year, in each case certified, without material
qualifications or limitations as to scope of the audit, by independent public
accountants of recognized standing as having been prepared in accordance with
GAAP consistently applied;
35
(iii) Defaults; Events of Default. As soon as practicable and in any
event within five days after a Responsible Officer of Borrower has actual
knowledge of the occurrence of a Default or an Event of Default, a statement
of a Responsible Officer of Borrower setting forth the details of such
Default or Event of Default and the action that Borrower has taken and
proposes to take with respect thereto;
(iv) Litigation. Promptly after the commencement thereof, notice of all
actions, suits and proceedings before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
against Borrower or any of its Subsidiaries, or any of its or their
respective assets or properties, that would reasonably be expected to have a
Material Adverse Effect;
(v) Officer's Certificate. Together with the financial statements
referred to in Sections 5.1(h)(i) and (ii), a certificate of the Chief
Financial Officer, Treasurer or Chief Accounting Officer of Borrower (A) to
the effect that during the course of such officer's review of the operations
of Borrower and its condition as of the end of the fiscal quarter to which
such certificate relates, nothing has come to such officer's attention that
would indicate that a Default or an Event of Default has occurred or that
there was any violation of the covenants of Borrower contained in Section 5.2
or 5.3, or if such cannot be so certified, specifying in reasonable detail
the exceptions, if any, to such statement, and (B) setting forth
calculations, in reasonable detail, establishing Borrower's compliance, as at
the end of such fiscal quarter, with the financial covenants contained in
Section 5.3;
(vi) ERISA. Promptly upon a Responsible Officer of Borrower becoming
aware of any of the following, if such occurrence has resulted in, or would
reasonably be expected to result in, liability of Borrower and its
Subsidiaries that would reasonably be expected to have a Material Adverse
Effect: (A) the failure to make a required contribution to any Pension Plan
if such failure is sufficient to give rise to a Lien under Section 302(f) of
ERISA, (B) the taking of any action with respect to a Pension Plan that has
resulted, or would reasonably be expected to result, in the requirement that
Borrower or any of its Material Subsidiaries furnish a bond or other security
to the PBGC or such Pension Plan, or (C) the occurrence of any Termination
Event;
(vii) Additional Information. Such other customary financial
information regarding Borrower or its Material Subsidiaries as any Bank
through Agent may from time to time reasonably request;
provided that if the financial statements required to be delivered pursuant to
Section 5.1(h)(i) or (ii) are included any Form 10-K or 10-Q filed by Borrower,
Borrower's obligation to deliver such documents or information to Agent shall be
deemed to be satisfied upon (1) delivery of a copy of the relevant form to Agent
(with sufficient copies for each Bank, as designated by Agent), within the time
period required by such Section or (y) the relevant form being available on
▇▇▇▇▇ within the time period required by such Section.
(i) Use of Proceeds. Use the proceeds of the Loans made and any L/C issued
under this Agreement for general corporate purposes, including the acquisition
of the capital
36
stock of or other equity interests in a Person or assets in transactions that
are not otherwise prohibited by this Agreement and that do not cause a breach of
Borrower's representation and warranty contained in Section 4.1(l).
(j) Maintenance of Rank. Cause the Obligations hereunder to rank pari passu
with all other senior unsecured indebtedness of Borrower.
Section 5.2 Negative Covenants. So long as any Obligations shall remain
outstanding or any of the Commitments shall remain available hereunder or any
L/C is outstanding, Borrower shall not, without the prior written consent of the
Majority Banks:
(a) Liens. Create, incur, assume or suffer to exist any Lien, except
Permitted Liens, upon any assets or property of Borrower.
(b) Fundamental Changes.
(i) Consolidate with or merge with or into any other Person, whether or
not Borrower is the surviving entity, or sell, lease or otherwise transfer
all or substantially all of the assets of Borrower and its Subsidiaries,
taken as a whole, to any other Person, unless, in each case, (A) both
immediately before and immediately after giving effect to such transaction,
no Default or Event of Default exists or would exist (determined, for
purposes of compliance with Section 5.3(a) after giving effect to such
transaction, on a pro forma basis for the period of four consecutive fiscal
quarters of Borrower then most recently ended, as if such transaction had
occurred on the first day of such period, and, for purposes of compliance
with Section 5.3(b) after giving effect to such transaction, on a pro forma
basis as if such transaction had occurred on the last day of Borrower's
fiscal quarter then most recently ended), and (B) the surviving Person or the
purchaser of assets, as applicable, is a corporation or limited liability
company formed under the laws of the United States of America, one of the
States thereof or the District of Columbia and assumes or is responsible by
operation of law for the Obligations; or
(ii) Permit any Material Subsidiary to consolidate with or merge with
or into any other Person, or sell, lease or otherwise transfer all or
substantially all of its assets, except that (A) any Material Subsidiary may
liquidate or dissolve voluntarily into, and may merge with and into, Borrower
or any other Material Subsidiary, and substantially all of the assets of any
Material Subsidiary may be purchased by Borrower or another Material
Subsidiary; and (B) provided that, both immediately before and immediately
after giving effect thereto, no Default or Event of Default exists or would
exist (determined, for purposes of compliance with Section 5.3(a) after
giving effect to such transaction, on a pro forma basis for the period of
four consecutive fiscal quarters of Borrower then most recently ended, as if
such transaction had occurred on the first day of such period, and, for
purposes of compliance with Section 5.3(b) after giving effect to such
transaction, on a pro forma basis as if such transaction had occurred on the
last day of Borrower's fiscal quarter then most recently ended), any Material
Subsidiary may (I) merge with or into another Person, or (II) sell all or
substantially all of its assets pursuant to a transaction described in any of
clauses (b) through (e) of the definition of "Permitted Asset Sales."
37
(c) Transactions with Affiliates. Enter into or permit any of its Material
Subsidiaries to enter into any transaction, including, without limitation, the
purchase, sale or exchange of property or the rendering of any service, with any
Affiliate of Borrower except (i) transactions that are upon fair and reasonable
terms no less favorable to Borrower or such Material Subsidiary than would be
obtained in a comparable arm's-length transaction with a Person that is not an
Affiliate of Borrower, and (ii) transactions between or among Borrower and/or
its wholly-owned Subsidiaries that do not involve any other Affiliate.
(d) Sales of Assets. Sell or otherwise dispose of, or permit any of its
consolidated Subsidiaries to sell or otherwise dispose of, directly or
indirectly, any of its consolidated assets, except for Permitted Asset Sales.
(e) Incurrence of Debt.
(i) Incur any Debt (other than the Obligations and Debt outstanding on
the Closing Date) unless, after giving effect to the incurrence of such Debt,
Borrower would be in compliance with the covenants contained in Section 5.3
(determined, for purposes of compliance with Section 5.3(a), on a pro forma
basis for the period of four consecutive fiscal quarters of Borrower then
most recently ended, as if such Debt had been incurred on the first day of
such period, and, for purposes of compliance with Section 5.3(b), on a pro
forma basis as if such Debt had been incurred on the last day of Borrower's
fiscal quarter then most recently ended).
(ii) Permit any of its Subsidiaries to incur any Debt other than
Permitted Subsidiary Debt.
(f) Restricted Payments. Pay, or permit any of its Subsidiaries to pay, any
Restricted Payments after the Closing Date (i) if the aggregate amount of all
Restricted Payments, determined for Borrower and its Subsidiaries combined,
would exceed the sum of (A) Two Hundred Million Dollars ($200,000,000) plus (B)
75% of cumulative Consolidated Net Income after March 31, 2000, or (ii) if a
Default or an Event of Default exists at the time of, or would result from, the
payment of such Restricted Payments (determined, for purposes of compliance with
Section 5.3(a), on a pro forma basis for the period of four consecutive fiscal
quarters of Borrower then most recently ended, as if such Restricted Payment had
been made on the first day of such period, and, for purposes of compliance with
Section 5.3(b), on a pro forma basis as if such Restricted Payment had been made
on the last day of Borrower's fiscal quarter then most recently ended).
(g) Restrictive Agreements. Permit any of its Subsidiaries to enter into
any agreement that prohibits such Subsidiary from making any payments, directly
or indirectly, to Borrower by way of dividends, advances, repayment of loans or
advances, reimbursements of management or other intercompany charges, expenses
and accruals or other returns on investment, or any other agreement that
restricts the ability of such Subsidiary to make any payment, directly or
indirectly, to Borrower, if such prohibition or restriction has a Material
Adverse Effect, other than agreements entered into in connection with the
incurrence of (i) Debt described in clause (e) of the definition of "Permitted
Subsidiary Debt" and (ii) to the extent
38
related to Debt described in such clause (e), Debt described in clause (h) of
the definition of "Permitted Subsidiary Debt".
(h) Investments. Make, or permit any of its Subsidiaries to make, any
Investment in any Person that is not engaged in a line of business that is
similar or related to any business (including any geographic extensions thereof)
engaged in by Borrower or any of its Subsidiaries as of the Closing Date if (i)
such Investment, when combined into one Person with all other such Investments,
would constitute a Material Subsidiary, or (ii) a Default or an Event of Default
exists at the time of, or would result from, the making of such Investment
(determined, for purposes of compliance with Section 5.3(a), on a pro forma
basis for the period of four consecutive fiscal quarters of Borrower then most
recently ended, as if such Investment had been made on the first day of such
period, and, for purposes of compliance with Section 5.3(b), on a pro forma
basis as if such Investment had been made on the last day of Borrower's fiscal
quarter then most recently ended).
Section 5.3 Financial Covenants. So long as any Obligations shall remain
outstanding or any of the Commitments shall remain available hereunder or any
L/C is outstanding, Borrower agrees that the financial covenants set forth below
under this Section 5.3 shall be applicable:
(a) FFO Coverage Ratio. The FFO Coverage Ratio for the period of four
consecutive fiscal quarters ending as at the end of each fiscal quarter of
Borrower set forth below, shall not be less than the applicable ratio set forth
below for such fiscal quarter:
Quarter Ratio
------- -----
Quarter ending June 30, 2000 2.40 to 1.00
Quarter ending September 30, 2000 2.40 to 1.00
Quarter ending December 31, 2000 2.40 to 1.00
Quarter ending March 31, 2001 2.40 to 1.00
Quarter ending June 30, 2001 2.40 to 1.00
Quarter ending September 30, 2001 2.40 to 1.00
Quarter ending December 31, 2001 2.40 to 1.00
Quarter ending March 31, 2002 2.40 to 1.00
Quarter ending June 30, 2002 2.40 to 1.00
Quarter ending September 30, 2002 2.40 to 1.00
Quarter ending December 31, 2002 2.40 to 1.00
Quarter ending March 31, 2003 2.40 to 1.00
Quarter ending June 30, 2003 2.65 to 1.00
Quarter ending September 30, 2003 2.65 to 1.00
Quarter ending December 31, 2003 2.65 to 1.00
Quarter ending March 31, 2004 2.65 to 1.00
Quarter ending June 30, 2004 2.65 to 1.00
Quarter ending September 30, 2004 2.65 to 1.00
Quarter ending December 31, 2004 2.65 to 1.00
Quarter ending March 31, 2005 2.65 to 1.00;
39
provided that, for the avoidance of doubt, any quarter specified above ending
after the initial Termination Date shall be disregarded unless the Termination
Date is extended beyond such quarter.
(b) Consolidated Debt to Capital. The ratio (expressed as a percentage) of
(i) Consolidated Debt plus Aggregate Operating Lease Obligations to (ii) Capital
plus Aggregate Operating Lease Obligations shall not be greater than the
applicable percentage set forth below at the end of any fiscal quarter of
Borrower:
Quarter Percentage
------- ----------
Quarter ending June 30, 2000 75%
Quarter ending September 30, 2000 75%
Quarter ending December 31, 2000 75%
Quarter ending March 31, 2001 75%
Quarter ending June 30, 2001 75%
Quarter ending September 30, 2001 75%
Quarter ending December 31, 2001 75%
Quarter ending March 31, 2002 75%
Quarter ending June 30, 2002 72%
Quarter ending September 30, 2002 72%
Quarter ending December 31, 2002 72%
Quarter ending March 31, 2003 72%
Quarter ending June 30, 2003 68%
Quarter ending September 30, 2003 68%
Quarter ending December 31, 2003 68%
Quarter ending March 31, 2004 68%
Quarter ending June 30, 2004 68%
Quarter ending September 30, 2004 68%
Quarter ending December 31, 2004 68%
Quarter ending March 31, 2005 68%;
provided that, for the avoidance of doubt, any quarter specified above ending
after the initial Termination Date shall be disregarded unless the Termination
Date is extended beyond such quarter.
ARTICLE VI
EVENTS OF DEFAULT
-----------------
Section 6.1 Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) Payments. Borrower shall (i) fail to pay any principal of any of the
Loans when the same becomes due and payable, or (ii) fail to pay any interest on
any of the Loans within three days of the due date therefor, or (iii) fail to
reimburse the L/C Issuer for any payment made by the L/C Issuer under or in
respect of any L/C Obligations when due, or (iv) fail to pay any fees payable
under this Agreement or any other sum due under this Agreement or any
40
other Credit Document within five Banking Days of the date when the same becomes
due and payable; or
(b) Representations and Warranties. Any representation or warranty made or
deemed to be made by Borrower under or in connection with any Credit Document
shall have been incorrect or misleading in any material respect when made or
deemed to be made; or
(c) Particular Covenant Defaults.
(i) Borrower shall fail to perform or observe any covenant contained in
Section 5.1(i), 5.2(b), 5.2(d), 5.2(h) (by reason of a failure to comply with
Section 5.3(a) on a pro forma basis with respect to an Investment) or 5.3(a);
or
(ii) Borrower shall fail to perform or observe any covenant contained
in Section 5.2(e), 5.2(f), 5.2(g), 5.2(h) (by reason of a failure to comply
with Section 5.3(b) on a pro forma basis with respect to an Investment) or
5.3(b) and such failure shall remain unremedied for 10 Banking Days after the
earliest of (i) such failure first becoming known to Borrower, (ii) the date
on which Borrower could reasonably have been expected to have known of such
failure and (iii) the date on which a written notice thereof shall have been
given to Borrower by Agent or any Bank; or
(d) Other Covenant Defaults. Borrower shall fail to perform or observe any
term, covenant or agreement contained herein or in any other Credit Document on
its part to be performed or observed (other than those referred to in any of
Sections 6.1(a), (b) and (c)) and such failure shall remain unremedied for 30
days after the earliest of (i) such failure first becoming known to Borrower,
(ii) the date on which Borrower could reasonably have been expected to have
known of such failure and (iii) the date on which a written notice thereof shall
have been given to Borrower by Agent or any Bank; or
(e) Other Debt.
(i) Borrower shall default in the payment of principal of One Million
Dollars ($1,000,000) (or the equivalent in any foreign currency) or more on
any Debt (other than the Obligations) having an outstanding principal amount
of Fifty Million Dollars ($50,000,000) (or the equivalent in any foreign
currency) or more in the aggregate, or any interest or premium thereon, when
due (whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise) and such failure shall continue after the applicable notice and
grace period, if any, specified in the agreement or instrument relating to
such Debt; or
(ii) any other default under any agreement or instrument relating to
any such Debt, or any other event, shall occur and shall continue after the
applicable notice and grace period, if any, specified in such agreement or
instrument, if, as a result thereof, the maturity of such Debt is
accelerated, provided that if such acceleration is rescinded within 30 days,
the Event of Default arising out of such acceleration shall be deemed to have
been cured; or
41
(f) Debt of Material Subsidiaries. Any default under any agreement or
instrument relating to Debt of any Material Subsidiary having an outstanding
principal amount of Fifty Million Dollars ($50,000,000) or more in the aggregate
shall occur and shall continue after the applicable notice and grace period, if
any, specified in such agreement or instrument, if, as a result thereof, the
maturity of such Debt is accelerated; provided that if such acceleration is
rescinded within 30 days, the Event of Default arising out of such acceleration
shall be deemed to have been cured; or
(g) Judgments and Orders. One or more judgments or orders for the payment
of money in the aggregate in excess of Fifty Million Dollars ($50,000,000) (or
the equivalent in any foreign currency) shall be rendered against Borrower or
any Material Subsidiary and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall be any
period of 90 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(h) Insolvency or Voluntary Proceedings. Borrower or any Material
Subsidiary is generally not paying or admits in writing its inability to pay its
debts as such debts become due, or files any petition or action for relief under
any bankruptcy, reorganization, insolvency or moratorium Law or any other Law
for the relief of debtors, now or hereafter in effect, or makes any assignment
for the benefit of creditors, liquidates or dissolves, or takes any action in
furtherance of any of the foregoing; or
(i) Involuntary Proceedings. An involuntary petition is filed against
Borrower or any Material Subsidiary under any bankruptcy, reorganization,
insolvency or moratorium Law now or hereafter in effect, or a custodian,
receiver, trustee or assignee for the benefit of creditors (or other similar
official) is appointed to take possession, custody or control of any property of
Borrower or such Material Subsidiary, as the case may be, and (i) such petition
or appointment is not set aside or withdrawn or otherwise ceases to be in effect
within 90 days from the date of said filing or appointment, or (ii) an order for
relief is entered against Borrower or such Material Subsidiary, as the case may
be, with respect thereto, or (iii) Borrower or such Material Subsidiary, as the
case may be, shall take any action indicating its consent to, approval of or
acquiescence in any such petition or appointment; or
(j) ERISA. A Termination Event shall have occurred that, when taken
together with all other Termination Events that have occurred, has resulted in,
or would reasonably be expected to result in, a Material Adverse Effect; or
(k) Berkshire Hathaway Ownership. Berkshire Hathaway shall fail to own
beneficially at least 50% of the common stock of Borrower, calculated on a
fully-diluted basis; or
(l) Event of Default under 364-Day Agreement. An Event of Default shall
occur under, and as defined in, the 364-Day Credit Agreement;
then and in every such event, Agent shall (i) if requested by the Majority
Banks, by written notice to Borrower, terminate the Commitments and they shall
thereupon terminate, and (ii) if requested by the Majority Banks, by written
notice to Borrower, declare the Obligations
42
(including, without limitation, the Loans and all accrued interest thereon) to
be, and the Notes shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by Borrower; provided that in the case of an Event of Default
described in Section 6.1(h) or (i), without any notice to Borrower or any other
act by Agent or the Banks, the Commitments shall thereupon terminate and the
Obligations (including, without limitation, the Loans and all accrued interest
thereon) shall become immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by Borrower.
Section 6.2 Cash Collateral. If any Event of Default described in Section
6.1(h) or (i) shall occur or the Loans shall have otherwise been accelerated and
the Commitments terminated pursuant to Section 6.1, then, without any request or
the taking of any other action by Agent or any of the Banks, Borrower shall
forthwith pay to Agent an amount in immediately available funds equal to the
then aggregate amount available for drawings (regardless of whether any
conditions to any such drawing can then be met) under all L/Cs at the time
outstanding, to be held by Agent as cash collateral as provided in Section 2.10.
ARTICLE VII
RELATIONSHIP OF AGENT AND BANKS
-------------------------------
Section 7.1 Authorization and Action. Each Bank hereby appoints and
authorizes Agent, as agent on behalf of such Bank, to take such action and to
exercise such powers under the Credit Documents as are delegated to Agent by the
terms thereof, together with such powers as are reasonably incidental thereto.
As to any (a) matters requiring or permitting an approval, consent, waiver,
election or other action by the Majority Banks, (b) matters as to which,
notwithstanding any delegation of authority to Agent, Agent has requested
instructions from the Majority Banks, or (c) matters not expressly provided for
by the Credit Documents, Agent shall not be required to exercise any discretion
or take any action, but shall be required to act or to refrain from acting only
(and shall be fully protected in so acting or refraining from acting) upon the
instructions of the Majority Banks, and such instructions shall be binding upon
all Banks; provided, however, that Agent shall not be required to take any
action which exposes Agent to personal liability or which is contrary to any
Credit Document or applicable Law. Agent agrees to give to each Bank prompt
notice of each notice given to it by Borrower pursuant to the terms of any
Credit Document.
Section 7.2 Agent's Reliance, Etc. Neither Agent nor any of its directors,
officers, agents, attorneys or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with any Credit
Document, except for its or their own gross negligence or willful misconduct.
Without limiting the generality of the foregoing, Agent: (a) may treat each Bank
as the holder of the right to payment of its outstanding Loans until Agent
receives and accepts (together with any required transfer fee) an Assignment and
Acceptance Agreement signed by such Bank and its Assignee in form satisfactory
to Agent and otherwise in accordance with the provisions of this Agreement; (b)
may consult with legal counsel (including counsel for Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or other experts if such counsel,
accountants or other experts are selected without gross negligence or willful
misconduct on the part of Agent; (c) makes no
43
warranty or representation to any Bank and shall not be responsible to any Bank
for any statements, warranties or representations made in or in connection with
any Credit Document; (d) shall not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms, covenants or conditions of
any Credit Document on the part of Borrower or to inspect the property
(including the books and records) of Borrower; (e) shall not be responsible to
any Bank for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of any Credit Document or any other instrument or document
furnished pursuant thereto; and (f) shall incur no liability under or in respect
of any Credit Document by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telegram, cable or telex) believed by it
to be genuine and signed or sent by the proper party or parties unless such
action by Agent constitutes gross negligence or willful misconduct on its part.
Section 7.3 Agent and Affiliates. With respect to its Commitments, the
Loans made by it, the L/Cs issued by it and the obligations of Borrower owed to
it under the Credit Documents as a Bank thereunder, Agent shall have the same
rights and powers under the Credit Documents as any other Bank and may exercise
the same as though it were not Agent; and the term "Bank" or "Banks" shall,
unless otherwise expressly indicated, include Agent in its individual capacity.
Agent and its Affiliates may accept deposits from, lend money to, act as trustee
under indentures of, and generally engage in any kind of business with,
Borrower, any of its Affiliates and any Person who may do business with or own
securities of Borrower or any such Affiliates, all as if Agent were not Agent
and without any duty to account therefor to the Banks.
Section 7.4 Bank Credit Decision. Each Bank acknowledges that (a) it has,
independently and without reliance upon Agent or any other Bank and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement, (b) it will, independently
and without reliance upon Agent or any other Bank and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement and the
other Credit Documents, and (c) Agent has no duty or responsibility, either
initially or on a continuing basis, to provide any Bank with any credit or other
information (other than obtained under the provisions of this Agreement) with
respect thereto, whether coming into its possession before the date hereof or at
any time thereafter.
Section 7.5 Indemnification. Each Bank agrees to indemnify Agent (to the
extent not reimbursed by Borrower), ratably according to the ratio of such
Bank's Commitments to the Commitments of all Banks, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against Agent in any way relating to or
arising out of the Credit Documents, or any of them, or any action taken or
omitted by Agent under the Credit Documents, or any of them, provided that no
Bank shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from Agent's gross negligence or willful misconduct. Without limiting
the foregoing, each Bank agrees to reimburse Agent promptly upon demand for such
Bank's ratable share (based on the proportion of all Commitments held by such
Bank) of any out-of-pocket expenses (including counsel fees and allocated costs
of in-house legal services) incurred by Agent in connection with the
preparation, execution, delivery,
44
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, the Credit Documents, or any of them, to the
extent that Agent is not reimbursed for such expenses by Borrower.
Section 7.6 Successor Agent. Agent (a) may resign at any time as Agent
under the Credit Documents by giving 30 days' prior written notice thereof to
the Banks and Borrower, and (b) may be removed as Agent under the Credit
Documents at any time with or without cause upon written notice to Agent and
Borrower signed by the Majority Banks. Upon any such resignation or removal, the
Majority Banks shall have the right to appoint a successor Agent thereunder
(with, unless an Event of Default has occurred and is continuing, Borrower's
prior written consent, not to be unreasonably withheld). If no successor Agent
shall have been so appointed by the Majority Banks, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Majority Banks' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Banks, appoint a successor Agent (with,
unless an Event of Default has occurred and is continuing, Borrower's prior
written consent, not to be unreasonably withheld), which shall be a commercial
bank organized under the laws of the United States of America or of a state
thereof and having a combined capital and surplus of at least Two Hundred
Million Dollars ($200,000,000). Unless and until a successor Agent shall have
been appointed as above provided, the retiring Agent shall serve as a caretaker
Agent unless dismissed by the Majority Banks. Upon the acceptance of any
appointment as Agent under the Credit Documents by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from all duties and obligations of Agent arising
thereafter under the Credit Documents. After any retiring Agent's resignation or
removal as Agent under the Credit Documents, the provisions of this Article VII
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under the Credit Documents.
Section 7.7 Syndication Agent; Other Titles. No Bank identified on the
signature pages of this Agreement as a "Syndication Agent," "Co-Agent," or
"Documentation Agent," or that is given any other title hereunder other than
"Agent", shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than those applicable to all Banks as such.
Without limiting the foregoing, no Bank so identified as a "Syndication Agent,"
"Co-Agent," or "Documentation Agent," or that is given any other title
hereunder, shall have, or be deemed to have, any fiduciary relationship with any
Bank. Each Bank acknowledges that it has not relied, and will not rely, on the
Banks so identified in deciding to enter into this Agreement or in taking or not
taking action hereunder.
ARTICLE VIII
MISCELLANEOUS
-------------
Section 8.1 Notices. Except as provided in Article II with respect to the
matters therein specified, all notices, demands, instructions, requests, and
other communications required or permitted to be given to, or made upon, any
party hereto shall be in writing and (except for financial statements and other
related informational documents to be furnished pursuant hereto, which may be
sent by first-class mail, postage prepaid) shall be personally delivered or sent
by registered or certified mail, postage prepaid, return receipt requested, by
45
overnight courier, or by prepaid telex, TWX, telecopy or telegram (with
messenger delivery specified) and shall be deemed to be given for purposes of
this Agreement on the day that such writing is received by the Person to whom it
is to be sent pursuant to the provisions of this Agreement. Unless otherwise
specified in a notice sent or delivered in accordance with the foregoing
provisions of this Section, notices, demands, requests, instructions and other
communications in writing shall be given to or made upon each party hereto at
the address (or its telex, TWX or telecopier numbers, if any) set forth for such
party on the signature pages hereof or Schedule I or, in the case of any
Assignee, set forth in the relevant Assignment and Acceptance Agreement.
Section 8.2 Successors and Assigns. This Agreement shall bind and inure to
the benefit of the parties hereto and their respective successors and assigns;
provided, however, that (a) other than in a transaction effected in accordance
with Section 5.2(b), Borrower shall not assign this Agreement or any of the
rights or obligations of Borrower hereunder without the prior written consent of
all Banks and Agent (the giving of such consent to be in each Bank's and Agent's
sole and absolute discretion), and any such purported assignment without such
consent shall be absolutely void, and (b) no Bank shall assign this Agreement or
any of the rights or obligations of such Bank hereunder except in accordance
with Section 8.11.
Section 8.3 Amendments and Related Matters. No amendment or waiver of any
provision of any Credit Document, nor consent to any departure by Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Majority Banks and Borrower and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent with
respect to any Credit Document shall, unless in writing and signed by all Banks,
do any of the following: (a) waive, or have the effect of waiving, any of the
conditions specified in Section 3.1, (b) increase the Commitment of any Bank or
subject the Banks to any additional obligations, (c) reduce the principal of, or
interest on, the Loans, any Fee or any other amount payable to any Bank
hereunder or under any other Credit Document, (d) postpone any date fixed for
any payment of principal of, or interest on, the Loans, any Fee or any other
amount payable to any Bank hereunder or under any other Credit Document
(including, without limitation, to extend the scheduled Termination Date), (e)
change the relative percentage of the Commitments, or of the aggregate unpaid
principal amount of the Loans, required for the Banks or any of them to take any
action hereunder, (f) change the several nature of the obligations of the Banks
hereunder or under the other Credit Documents, or (g) amend Section 2.7, 8.2,
this Section 8.3 or Section 8.4(b); and provided, further, that no amendment,
waiver or consent with respect to any Credit Document shall, unless in writing
and signed by Agent in addition to the Banks required above to take such action,
affect the rights or duties of Agent under this Agreement or any other Credit
Document.
Section 8.4 Costs and Expenses; Indemnification.
(a) Expenses. Borrower agrees to pay on demand, subject to the proviso set
forth below, (i) all costs and expenses of Agent and the Syndication Agent in
connection with the syndication by Agent or the Syndication Agent, as the case
may be, of the credit facility provided hereunder upon presentation of
supporting documentation and in connection with the preparation, execution,
delivery, administration, modification and amendment of the Credit
46
Documents and the other documents to be delivered under the Credit Documents,
including, without limitation, the reasonable fees and expenses of counsel
(excluding allocated costs for in-house legal services) for Agent or the
Syndication Agent, as the case may be, with respect thereto and with respect to
advising Agent or the Syndication Agent, as the case may be, as to its rights
and responsibilities under the Credit Documents, and (ii) all costs and expenses
of Agent and each of the Banks, if any (including, without limitation,
reasonable counsel fees and expenses, but limited to costs and expenses of one
counsel and any one local counsel who shall act for Agent and the Banks
(excluding allocated costs for in-house legal services)), in connection with (A)
the enforcement of, or other protection of the interests of Agent and the Banks
under (whether through negotiations, legal proceedings or otherwise and
including in connection with any bankruptcy or insolvency proceedings), or (B)
restructuring (whether or not in the nature of a "work-out") and administration
of, the Credit Documents and the other documents to be delivered under the
Credit Documents; provided that Borrower shall only be liable for costs or
expenses incurred in connection with the initial syndication of the credit
facility provided hereunder pursuant to subclause (a)(i) of this Section 8.4 to
any Bank that is or becomes party to this Agreement on or prior to the Closing
Date or within 90 days thereafter. The provisions of this Section 8.4(a) shall
survive the payment in full of the Obligations and termination of the
Commitments and of this Agreement.
(b) Indemnification. Borrower agrees to indemnify Agent, each Bank and each
officer, director, Affiliate, employee, agent or representative of Agent or such
Bank ("Bank Indemnitees") and hold each Bank Indemnitee harmless, from and
against any and all liabilities, losses, damages, costs and expenses of any kind
(including the reasonable fees and disbursements of counsel for any Bank
Indemnitee (excluding allocated costs of in-house counsel)) in connection with
any investigative, administrative or judicial proceeding, whether or not such
Bank Indemnitee shall be designated a party thereto (but if not a party thereto,
then only with respect to such proceedings where such Bank Indemnitee (i) is
subject to legal process (whether by subpoena or otherwise) or other compulsion
of law, (ii) believes in good faith that it will be so subject, or (iii)
believes in good faith that it is necessary or appropriate for it to resist any
legal process or other compulsion of law which is purported to be asserted
against it), that may be incurred by any Bank Indemnitee, relating to or arising
out of this Agreement or any of the other Credit Documents, any of the
transactions contemplated hereby or thereby, or any actual or proposed use of
proceeds of Loans hereunder; provided, however, that no Bank Indemnitee shall
have the right to be indemnified hereunder for its own gross negligence or
willful misconduct. The provisions of this Section 8.4(b) shall survive the
payment in full of the Obligations and termination of the Commitments and of
this Agreement.
Section 8.5 Oral Communications. Agent may, but is not required (except as
otherwise provided herein) to, accept and act upon oral communications from
Borrower. Any oral communication from Borrower to Agent (including telephone
communications) hereunder shall be immediately confirmed in writing by Borrower,
but in the event of any conflict between any such oral communication and the
written confirmation thereof, such oral communication shall control if Agent has
acted thereon prior to actual receipt of written confirmation. Borrower shall
indemnify Agent and hold Agent harmless from and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, suits, costs, expenses and disbursements of any kind or nature
whatsoever (including reasonable attorneys' fees and allocated costs for
in-house legal services) that arise out of or are incurred in connection with
47
the making of Loans or taking other action in reliance upon oral communications,
except that Agent shall not be indemnified against its own gross negligence or
willful misconduct.
Section 8.6 Entire Agreement. This Agreement and the other Credit Documents
are intended by the parties hereto to be a final and complete expression of all
terms and conditions of their agreement with respect to the subject matter
thereof and supersede all oral negotiations and prior writings in respect of the
subject matter hereof.
Section 8.7 Governing Law. THIS AGREEMENT AND EACH OTHER CREDIT DOCUMENT
(EXCEPT TO THE EXTENT THE LAW OF ANOTHER JURISDICTION IS EXPRESSLY CHOSEN
THEREIN) SHALL BE GOVERNED BY AND CONSTRUED UNDER THE INTERNAL LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
Section 8.8 Severability. The illegality or unenforceability of any
provision of this Agreement or any other Credit Document shall not in any way
affect or impair the legality or enforceability of the remaining provisions of
this Agreement or such Credit Document.
Section 8.9 Counterparts. This Agreement may be executed in as many
counterparts as may be deemed necessary or convenient, and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed an original but all such counterparts shall constitute but one and the
same agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section 8.10 Confidentiality. Unless otherwise required by any Directive,
Agent and each Bank agree not to disclose voluntarily to any third party
information that Borrower designates in writing as "Confidential" and that is
provided to it pursuant to this Agreement (including in connection with any
inspection pursuant to Section 5.1(e)) or the other Credit Documents, except
that there shall be no obligation of confidentiality in respect of (a) any
information that may be generally available to the public or that becomes
available to the public through no fault of Agent or such Bank; (b)
communications with actual or prospective participants or Assignees that
undertake in writing to be bound by this Section 8.10 and that are banks or
other financial institutions; or (c) disclosures to Agent's or any Bank's
directors, officers, employees and other representatives and agents, and
directors, officers, employees and other representatives and agents of its
Affiliates that are banks or other financial institutions, legal counsel,
auditors and internal bank examiners, and to the extent necessary or advisable
in its judgment, independent engineering consultants and other experts or
consultants retained by it, if, in the case of a person or entity other than a
director, officer, employee, legal counsel, auditor or internal bank examiner,
Agent or such Bank obtains from such person or entity an undertaking in writing
as to confidentiality substantially identical to this undertaking and if, as to
all other Persons, Agent or such Bank informs them of the obligations under this
Section 8.10 and is responsible for any breach thereof. If any subpoena or other
process is served on Agent or any Bank seeking disclosure of any information
designated by Borrower as "Confidential" in accordance with this Section 8.10,
then, to the extent permitted to do so under applicable law, Agent or such Bank,
as the case may be, shall promptly give notice to Borrower of such
48
occurrence and shall reasonably cooperate, at Borrower's expense, with
Borrower's efforts to seek a protective order with respect to, or other
limitation on, the requested disclosure.
Section 8.11 Assignments and Participations.
(a) Assignments. Each Bank may assign to one or more financial institutions
(as "Assignee") all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitments,
L/C Obligations and Loans); provided, however, that (i) each such assignment
shall be of a constant, and not a varying, percentage of the assigning Bank's
rights and obligations under this Agreement being assigned, and any assignment
of such Bank's Commitment and Committed Loans shall cover the same percentage of
such Bank's Commitment and Committed Loans, (ii) unless Agent and Borrower
otherwise consent, the amount of the Commitment (such amount to be determined
without reduction for utilization) of the assigning Bank being assigned pursuant
to each such assignment (determined as of the date of the Assignment and
Acceptance Agreement with respect to such assignment) shall not be less than
Five Million Dollars ($5,000,000) or shall be an integral multiple of One
Million Dollars ($1,000,000) in excess thereof, and, unless such assigning Bank
is assigning its entire Commitment, shall not reduce the amount of the
Commitment retained by such Bank to less than Five Million Dollars ($5,000,000),
(iii) the parties to each such assignment shall execute and deliver to Agent for
recording an Assignment and Acceptance Agreement, together with a processing and
recordation fee of Three Thousand Five Hundred Dollars ($3,500), and (iv) such
assignment shall require the consent (which consent shall not be unreasonably
withheld) of Borrower (unless an Event of Default shall have occurred and be
continuing) and Agent. Upon such execution, delivery, approval, acceptance and
recording, from and after the Effective Date specified in each Assignment and
Acceptance Agreement, (x) the Assignee thereunder shall be a party hereto as a
Bank and, to the extent that rights and obligations hereunder have been assigned
to it pursuant to such Assignment and Acceptance Agreement, have the rights and
obligations of a Bank hereunder and under the other Credit Documents and (y) the
Bank assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance
Agreement, relinquish its rights and be released from its obligations under this
Agreement and under the other Credit Documents (and, in the case of an
Assignment and Acceptance Agreement covering all or the remaining portion of an
assigning Bank's rights and obligations under this Agreement and under the other
Credit Documents, such Bank shall cease to be a party hereto, but shall remain
entitled to the benefit of all of Borrower's indemnities hereunder with respect
to the period preceding such assignment).
(b) Effect of Assignment. By executing and delivering an Assignment and
Acceptance Agreement, a Bank assignor thereunder and the Assignee thereunder
confirm to and agree with each other and the other parties hereto as follows:
(i) other than as expressly provided in such Assignment and Acceptance
Agreement, such assigning Bank makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with any Credit Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Credit
Document or any other instrument or document furnished pursuant to any Credit
Document; (ii) such assigning Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of Borrower or
the performance or observance by Borrower of any of its obligations
49
under any Credit Document or any other instrument or document furnished pursuant
to any Credit Document or with respect to the taxability of payments to be made
hereunder or under the other Credit Documents; (iii) such assignee confirms that
it has received a copy of the Credit Documents, together with copies of the
financial statements referred to in the 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 and Acceptance Agreement;
(iv) such Assignee will, independently and without reliance upon Agent, such
assigning Bank or any other Bank 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 any Credit Document; (v) such Assignee
appoints and authorizes Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Documents as are delegated to Agent by the
terms thereof, together with such powers as are reasonably incidental thereto;
and (vi) such Assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of any Credit Document are
required to be performed by it as a Bank.
(c) Assignment Register. Agent shall maintain at its Agency Office a copy
of each Assignment and Acceptance Agreement delivered to it and a register for
the recordation of the names and addresses of the Banks and the Commitments of,
and principal amount of the Loans owing to, each Bank from time to time. The
entries in such register shall be conclusive and binding for all purposes,
absent manifest error, and Borrower, Agent and the Banks may treat each Person
whose name is recorded in the register as a Bank hereunder for all purposes of
this Agreement. The register shall be available for inspection by Borrower or
any Bank at any reasonable time and from time to time upon reasonable prior
notice.
(d) Assignments Recorded. Upon its receipt of an Assignment and Acceptance
Agreement executed by an assigning Bank and an Assignee, Agent shall, if such
Assignment and Acceptance Agreement has been properly completed, and subject to
Borrower's consent as above provided, (i) record the information contained
therein in the register maintained by Agent for this purpose and (ii) give
prompt notice thereof to Borrower.
(e) Participations. Each Bank may sell participations to one or more
Persons in all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitments, L/C
Obligations and Loans); provided, however, that (i) such Bank's obligations
under this Agreement (including, without limitation, its commitments to Borrower
hereunder) shall remain unchanged, (ii) such Bank shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Bank shall remain the owner of such Loans for all purposes of this
Agreement, and (iv) Borrower, Agent and the Banks shall continue to deal solely
and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement; provided, further, that to the extent of any
such participation (unless otherwise stated therein and subject to the preceding
proviso), the assignee or purchaser of such participation shall, to the fullest
extent permitted by law, have the same rights and benefits hereunder as it would
have if it were a Bank hereunder; provided, further, that each such
participation shall be granted pursuant to an agreement providing that the
purchaser thereof shall not have the right to consent or object to any action by
the selling Bank (who shall retain such right) other than an action that would
(i) reduce the principal of or interest on any Loan or any Fee due under any
Credit Document in which such purchaser has an interest, or (ii) postpone any
date fixed for payment of principal of or interest on any such Loan or such
50
Fee; and provided, further, that notwithstanding anything to the contrary
contained in this Section 8.11(e), the provisions of Sections 2.7 and 2.8 shall
apply to the purchasers of participations as if they were Banks, provided that
no such purchaser shall be entitled to receive any greater amount pursuant to
either such Section than the Bank selling such participation would have been
entitled to receive in respect of the participation transferred had no such
transfer occurred.
(f) Assignment to Affiliates and Federal Reserve Bank. Anything herein to
the contrary notwithstanding, each Bank shall have the right, without the prior
consent of Borrower, to assign or pledge from time to time any or all of its
Commitments, Loans or other rights hereunder or under any of the other Credit
Documents to any of its Affiliates or to any Federal Reserve Bank.
(g) Funding by SPFV. Anything herein to the contrary notwithstanding, each
Bank (the "Granting Bank") shall have the right, without the prior consent of
Borrower, to grant to a special purpose funding vehicle (the "SPFV") that is an
Affiliate of such Granting Bank, identified as such in writing from time to time
by the Granting Bank to Agent and Borrower, the option to provide all or any
part of any Loan that such Granting Bank would otherwise be obligated to make
hereunder, provided that (i) nothing herein shall constitute a commitment to
make any Loan by any SPFV or shall relieve its Granting Bank of any obligation
of such Granting Bank hereunder or under any other Credit Document, except to
the extent that such SPFV actually funds all or part of any Loan such Granting
Bank is obligated to make hereunder, and (ii) if an SPFV elects not to exercise
such option or otherwise fails to provide all or any part of such Loan, such
Granting Bank shall be obligated to make such Loan pursuant to the terms hereof.
The making of a Loan by an SPFV hereunder shall utilize the Commitment of its
Granting Bank to the same extent, and as if, such Loan were made by such
Granting Bank. Each party hereto agrees that no SPFV shall be liable for any
payment under this Agreement or any other Credit Document for which a Bank would
otherwise be liable, for so long as, and to the extent that, its Granting Bank
makes such payment. In furtherance of the foregoing, each party hereto hereby
agrees that, until the date that is one year and one day after the payment in
full of all outstanding senior Debt of any SPFV, it shall not institute against,
or join any other Person in instituting against, such SPFV any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings (or any
similar proceedings) under the laws of the United States of America or any State
thereof. In addition, notwithstanding anything to the contrary contained in this
Section 8.11, an SPFV may (1) (A) with notice to, but without the prior written
consent of, Agent or Borrower and without paying any processing fee therefor,
assign all or any portion of its interest in any Loan to its Granting Bank or
(B) with the consent (which consent shall not be unreasonably withheld) of Agent
and (if no Event of Default has occurred and is continuing) Borrower, but
without paying any processing fee therefor, assign all or any portion of its
interest in any Loan to any financial institution providing liquidity or credit
facilities to or for the account of such SPFV to fund the Loans funded by such
SPFV or to support any securities issued by such SPFV to fund such Loans, and
(2) disclose, on a confidential basis, any non-public information relating to
Loans funded by it to any rating agency, commercial paper dealer or provider of
a surety, guaranty or credit or liquidity enhancement to such SPFV. Borrower
shall not be required to pay, or to reimburse any Granting Bank for, its
expenses relating to any SPFV identified by such Granting Bank pursuant to this
Section 8.11.
51
Section 8.12 Waiver of Trial by Jury. BORROWER, THE BANKS, AND AGENT, TO
THE MAXIMUM EXTENT THEY MAY LEGALLY DO SO, HEREBY EXPRESSLY WAIVE ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING
ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS, OR
IN ANY WAY CONNECTED WITH, OR RELATED TO, OR INCIDENTAL TO, THE DEALINGS OF THE
PARTIES HERETO WITH RESPECT TO THIS AGREEMENT OR THE OTHER CREDIT DOCUMENTS, THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF OR THEREOF, OR
THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND IRRESPECTIVE OF WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE. TO THE EXTENT THEY MAY LEGALLY DO SO, BORROWER, THE BANKS AND AGENT
HEREBY AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR PROCEEDING
SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 8.12 WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE OTHER PARTY OR PARTIES HERETO TO WAIVER
OF ITS OR THEIR RIGHT TO TRIAL BY JURY.
Section 8.13 Choice of Forum and Service of Process. To the maximum extent
permitted by Law, Borrower agrees that all actions or proceedings arising in
connection with the Credit Documents shall be tried and determined only in the
state and federal courts located in New York, New York, or, at the sole option
of Agent, in any other court in which Agent shall initiate legal or equitable
proceedings and which has subject matter jurisdiction over the matter in
controversy. Borrower waives any right it may have to assert the doctrine of
forum non conveniens or to object to venue to the extent any proceeding is
brought in accordance with this Section. Borrower hereby irrevocably and
unconditionally designates and appoints (a) CT Corporation System and (b) such
other Person as may be selected by Borrower and shall irrevocably agree in
writing to so serve, as its agent to receive on its behalf service of all
process in any proceedings in any such court, such service being hereby
acknowledged by Borrower to be effective and binding service in every respect. A
copy of any such process so served shall be mailed by registered mail to
Borrower; provided, however, that unless otherwise provided by mandatory
provisions of applicable law, no failure to mail such copy shall affect the
validity of service of process. If any agent appointed by Borrower refuses to
accept service, Borrower hereby agrees that service upon it by mail shall
constitute sufficient notice. Nothing herein shall affect the right to serve
process in any other manner permitted by law.
Section 8.14 Remedies. The remedies provided to Agent and the Banks in the
Credit Documents are cumulative and are in addition to, and not in lieu of, any
remedies provided by law. To the maximum extent permitted by law, remedies may
be exercised by Agent or any Bank successively or concurrently, and the failure
to exercise any remedy shall not constitute a waiver thereof, nor shall the
single or partial exercise of any remedy preclude any other or further exercise
of such remedy or any other right or remedy.
Section 8.15 Right of Set-Off. Upon the occurrence and during the
continuance of any Event of Default, each Bank is hereby authorized, after
receipt of written consent of Agent, at any time and from time to time, to the
fullest extent permitted by Law, to set-off and
52
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Bank to
or for the credit or the account of Borrower against an equivalent amount of the
Obligations, irrespective of whether or not such Bank shall have made any demand
under this Agreement and although such obligations may be unmatured. Each Bank
agrees promptly to notify Borrower and Agent after any such set-off and
application is made by such Bank, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Bank under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Bank may
have.
Section 8.16 Acknowledgements. Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents;
(b) neither Agent nor any Bank has any fiduciary relationship with or
fiduciary duty to Borrower arising out of or in connection with this
Agreement or any of the other Credit Documents; and
(c) no joint venture is created hereby or by the other Credit Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Banks or among Borrower and the Banks or between Borrower and Agent.
53
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
MIDAMERICAN ENERGY HOLDINGS COMPANY,
as Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: General Counsel
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent and a Bank
By: /s/ ▇▇▇▇ ▇. Fatto
--------------------------------------
Name: ▇▇▇▇ ▇. Fatto
Title: Assistant Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
Address for Notices:
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
COMMERZBANK AG, NEW YORK BRANCH,
as L/C Issuer and Syndication Agent
By: /s/ M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Treasurer
COMMERZBANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES, as a Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
Address for Notices:
Two World Financial Center
New York, New York 10281-1050
Attn: ▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
BANK ONE, NA,
as Documentation Agent and a Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇
Title: Vice President
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
BARCLAYS BANK PLC
By: /s/
--------------------------------------
Name:
Title:
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
THE CHASE MANHATTAN BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
THE SAKURA BANK, LIMITED
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Group Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ D'▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
BNP PARIBAS
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Executive Vice President &
General Manager
By: /s/ Jo ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: Jo ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
BAYERISCHE LANDESBANK GIROZENTRALE
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
Title: Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
FIRSTAR BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
Address for Notices:
Capital Markets Division
Tram ▇▇-▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
THE FUJI BANK, LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President &
Group Head
Address for Notices:
Loans Administration Dept.
2 World Trade Center, 79th Floor
New York, New York 10048
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
ING (U.S.) CAPITAL LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Associate
Address for Notices:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇/▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Address for Notices:
88 Pine Sreet, ▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
THE SUMITOMO BANK, LIMITED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
UNION BANK OF CALIFORNIA, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Address for Notices:
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
U.S. BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior V.P.
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Address for Notices:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
SUMMIT BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
FIRST NATIONAL BANK OF OMAHA
By: /s/ ▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
Address for Notices:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Signature Page to
Facility B Credit Agreement
SCHEDULE I
COMMITMENT SCHEDULE
-------------------
(Facility B)
------------
A. Agency Office: Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇. ▇▇▇▇▇: (Listed Below)
TOTAL COMMITMENT
BANKS ALLOCATION (%) AMOUNT
----- -------------- ------
Credit Suisse First Boston 7.5% $18,750,000
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Commerzbank Aktiengesellschaft, New York and 6.8% 16,875,000
Grand Cayman Branches
Two World Financial Center
New York, New York 10281-1050
Attn: ▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Bank One, NA 5.8% 14,375,000
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Barclays Bank plc 5.6% 14,062,500
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Chase Manhattan Bank 5.6% 14,062,500
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Sakura Bank, Limited 5.6% 14,062,500
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ABN AMRO Bank N.V. 4.4% 10,937,500
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of New York 4.4% 10,937,500
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ D'▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of Tokyo Mitsubishi. Ltd. 4.4% 10,937,500
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BNP Paribas 4.4% 10,937,500
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Bayerische Landesbank Girozentrale 4.4% 10,937,500
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Firstar Bank, N.A. 4.4% 10,937,500
Capital Markets Division, Tram ▇▇-▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Fuji Bank, Limited 4.4% 10,937,500
Loans Administration Dept.
Two World Trade Center, 79th Flr
New York, New York 10048
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ING (U.S.) Capital LLC 4.4% 10,937,500
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇/▇▇▇-▇▇▇▇
The Royal Bank of Scotland plc 4.4% 10,937,500
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Sumitomo Bank, Limited 4.4% 10,937,500
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Union Bank of California, N.A. 4.4% 10,937,500
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇/
▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
U.S. Bank 4.4% 10,937,500
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ Fargo Bank, National Association 4.4% 10,937,500
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Summit Bank 3.8% 9,375,000
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
First National Bank of Omaha 2.5% 6,250,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------------------------------------
TOTAL 100.0% $250,000,000
SCHEDULE II
PRICING SCHEDULES
-----------------
The "Applicable Margin", the "Applicable Facility Fee Rate" and the
"Applicable L/C Fee Rate" for any day are the respective annual percentage rates
set forth below in the applicable row under the column corresponding to the
Status that exists on such day:
-------------------------------------------------------------------------------------------------------------------
Status Level I Level II Level III Level IV Level V
-------------------------------------------------------------------------------------------------------------------
Applicable Margin - 0.50% 0.70% 0.875% 1.375% 1.50%
Eurodollar Committed Loans
-------------------------------------------------------------------------------------------------------------------
Applicable Margin - Base Rate Loans 0.00% 0.00% 0.00% 0.00% 0.50%
-------------------------------------------------------------------------------------------------------------------
Applicable L/C Fee 0.50% 0.70% 0.875% 1.375% 1.50%
Rate
-------------------------------------------------------------------------------------------------------------------
Applicable Facility Fee 0.15% 0.175% 0.25% 0.375% 0.50%
Rate
-------------------------------------------------------------------------------------------------------------------
The "Applicable Utilization Fee Rate" for the Commitments for any day are
the respective annual percentage rates set forth below in the applicable row
under the column corresponding to the Status and the Utilized Percentage that
exists on such day:
-------------------------------------------------------------------------------------------------------------------
Status/Utilized Percentage ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ Level V
-------------------------------------------------------------------------------------------------------------------
(less than or equal to) 33 1/3% 0.00% 0.00% 0.00% 0.00% 0.00%
-------------------------------------------------------------------------------------------------------------------
33 1/3% (less than) x
(less than or equal to) 66 2/3% 0.125% 0.125% 0.125% 0.125% 0.25%
-------------------------------------------------------------------------------------------------------------------
(greater than) 66 2/3% 0.1875% 0.25% 0.25% 0.25% 0.50%
-------------------------------------------------------------------------------------------------------------------
For purposes of these Schedules, the following terms have the following
meanings:
"Level I Status" exists at any date if, at such date, Borrower's senior
unsecured long-term debt is rated both BBB+ or higher by S&P and Baa1 or higher
by ▇▇▇▇▇'▇.
"Level II Status" exists at any date if, at such date, (i) Borrower's
senior unsecured long-term debt is rated both BBB or higher by S&P and Baa2 or
higher by ▇▇▇▇▇'▇ and (ii) Level I Status does not exist.
"Level III Status" exists at any date if, at such date, (i) Borrower's
senior unsecured long-term debt is rated both BBB- or higher by S&P and Baa3 or
higher by ▇▇▇▇▇'▇ and (ii) neither Level I Status nor Level II Status exists.
"Level IV Status" exists at any date if, at such date, (i) Borrower's
senior unsecured long-term debt is rated both BB+ or higher by S&P and Ba1 or
higher by ▇▇▇▇▇'▇ and (ii) none of Level I Status, Level II Status or Level III
Status exists.
"Level V Status" exists at any date if, at such date, no other Status
exists.
"Status" refers to the determination of which of Level I Status, Level II
Status, Level III Status, Level IV Status or Level V Status exists at any date.
The credit ratings to be used for purposes of the foregoing Schedules are those
assigned to the senior unsecured long-term debt securities of Borrower
(including, if no senior unsecured long-term debt securities of Borrower are
outstanding, any such ratings that ▇▇▇▇▇'▇ or S&P has explicitly stated may be
implied from the ratings it has assigned to Borrower's outstanding subordinated
unsecured long-term debt securities) without third-party credit enhancement, and
any rating assigned to any other debt security of Borrower shall be disregarded.
The rating in effect at any date is that in effect at the close of business on
such date.
[Facility B]
APPENDIX A
DEFINED TERMS
-------------
As used in the Credit Agreement, the following terms shall have the
following meanings, except to the extent otherwise defined in the Credit
Agreement.
"Affected Person" has the meaning ascribed thereto in Section 2.7(a).
"Affiliate" means, as to any Person, any other Person directly or
indirectly controlling or controlled by or under common control with such
Person.
"Aggregate Operating Lease Obligations" means, at any time, the sum of
the Significant Operating Lease Obligations with respect to all Significant
Operating Leases then in effect.
"Agency Office" means the office of Agent designated on the Commitment
Schedule, or such other office of Agent as Agent may from time to time designate
by notice to Borrower and the Banks.
"Agent" means Credit Suisse First Boston in its capacity as
administrative agent for the Banks hereunder, and any successor thereto in such
capacity.
"Aggregate Commitments" means the sum of the Commitments.
"Applicable Agent's Account" means the account of Agent maintained at
the Agency Office, or such other account of Agent as may be hereafter from time
to time designated by Agent upon notice to Borrower and the Banks, as the
account through which the Banks are to make Loans and Borrower is to repay Loans
and to pay the other sums due under this Agreement.
"Applicable Facility Fee Rate" means, at any date (and subject to
adjustment from time to time in accordance with the provisions of Section
2.5(c)), the rate per annum determined in accordance with the Pricing Schedule
attached hereto as Schedule II.
"Applicable L/C Fee Rate" means, at any date (and subject to adjustment
from time to time in accordance with the provisions of Section 2.5(c)), the rate
per annum determined in accordance with the Pricing Schedule attached hereto as
Schedule II.
"Applicable Utilization Fee Rate" means, at any date (and subject to
adjustment from time to time in accordance with the provisions of Section
2.5(c)), the rate per annum determined in accordance with the Pricing Schedule
attached hereto as Schedule II.
"Applicable Lending Office" means, with respect to each Bank, the
office of such Bank designated on the Commitment Schedule, or in the Assignment
and Acceptance Agreement pursuant to which it became a Bank, or such other
office of such Bank as such Bank may from time to time designate by notice to
Borrower and Agent.
"Applicable Margin" means, at any date (and subject to adjustment from
time to time in accordance with the provisions of Section 2.5(c)), the rate per
annum determined in accordance with the Pricing Schedule attached hereto as
Schedule II.
"Application Documents" means the L/C Issuer's customary L/C
application and such other standard documents as may be required by the L/C
Issuer in connection with the issuance of an L/C.
"Assignee" has the meaning ascribed thereto in Section 8.11(a).
"Assignment and Acceptance Agreement" means an assignment and
acceptance agreement, in compliance with Section 8.11 and substantially in the
form of Exhibit A.
"Banking Day" means (a) a day on which banks are not required or
authorized to close in the city in which the Agency Office is located, and, in
matters relating to the determination of a Eurodollar Rate or an Interest Period
for a Eurodollar Rate Loan, a day on which the London interbank market deals in
Dollar deposits, and (b) with respect to a day on which a Notice of Borrowing is
to be given to Agent at the Agency Office or on which notifications or other
documents are to be received by, or an action is required of, Agent at the
Agency Office pursuant to the provisions of this Agreement, a day on which banks
are not required or authorized to close in the city in which the Agency Office
is located.
"Banks" means the banks and other financial institutions signatory
hereto in their capacity as Banks, and any Assignees hereafter added as Banks
under one or more Assignment and Acceptance Agreements pursuant to Section 8.11.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy," as amended from time to time, or any successor statute.
"Base Rate" means a fluctuating rate per annum which is at all times
equal to the higher of (a) the rate per annum announced by CSFB from time to
time as its base lending rate for commercial loans in Dollars in the United
States and (b) the Federal Funds Rate plus a margin of 0.50 percentage points,
the Base Rate to change as and when such rates change. The base lending rate is
not necessarily the lowest rate of interest charged by CSFB in connection with
extensions of credit.
"Base Rate Loan" means a Committed Loan bearing interest as provided in
Section 2.4(a).
"Beneficiary Documents" has the meaning ascribed thereto in Section
2.2(d)(i).
"Berkshire Hathaway" means Berkshire Hathaway Inc., a Delaware
corporation.
"Bid" means an offer by a Bank to make a Bid Rate Loan in accordance
with Section 2.1(e).
"Bid Rate" means, with respect to any Bid, the Eurodollar Bid Margin or
the Fixed Rate, as applicable, offered by the Bank making such Bid.
2
"Bid Rate Loan" means any Loan made pursuant to Section 2.1(e).
"Bid Rate Loan Outstandings" means, at any time, the aggregate
principal amount of all outstanding Bid Rate Loans.
"Bid Request" means a request for Bids in the form of Exhibit B-4.
"Board of Directors" means either the Board of Directors of Borrower or
any duly authorized committee of such Board.
"Capital" means the sum of Consolidated Debt of Borrower plus the
outstanding amount of the Trust Preferred Securities and the Subsidiary
Preferred Securities plus minority interest and stockholders' equity of
Borrower.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or nonvoting) in, or interests (however designated) in, the equity of
such Person that is outstanding or issued on or after the Closing Date,
including, without limitation, all common stock and preferred stock and
partnership, membership and joint venture interests in such Person.
"Cash Collateral Account" has the meaning ascribed thereto in Section
2.10.
"Cash Equivalents" means any of the following: (a) securities issued or
directly and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States of America is pledged in support thereof), (b) time deposits
and certificates of deposit of any commercial bank organized in the United
States of America having capital and surplus in excess of Five Hundred Million
Dollars ($500,000,000) or any commercial bank organized under the laws of any
other country having total assets in excess of Five Hundred Million Dollars
($500,000,000) with a maturity date not more than two years from the date of
acquisition, (c) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (a) or (d) of this
definition that were entered into with any bank meeting the qualifications set
forth in clause (b) of this definition or another financial institution of
national reputation, (d) direct obligations issued by any state or other
jurisdiction of the United States of America or any other country or any
political subdivision or public instrumentality thereof maturing, or subject to
tender at the option of the holder thereof, within 90 days after the date of
acquisition thereof and, at the time of acquisition, having a rating of A from
S&P or A-2 from ▇▇▇▇▇'▇ (or, if at any time neither S&P nor ▇▇▇▇▇'▇ may be
rating such obligations, then having an equivalent rating from another
nationally recognized rating service designated by Borrower and reasonably
acceptable to Agent), (e) commercial paper issued by (i) the parent corporation
of any commercial bank organized in the United States of America having capital
and surplus in excess of Five Hundred Million Dollars ($500,000,000) or any
commercial bank organized under the laws of any other country having total
assets in excess of Five Hundred Million Dollars ($500,000,000), or (ii) other
Persons having one of the two highest ratings obtainable from either S&P or
▇▇▇▇▇'▇ (or, if at any time neither S&P nor ▇▇▇▇▇'▇ may be rating such
obligations, then from another nationally recognized rating service designated
by Borrower and reasonably acceptable to Agent) and in each case maturing within
one year from the date of acquisition, (f) overnight bank
3
deposits and bankers' acceptances at any commercial bank organized in the United
States of America having capital and surplus in excess of Five Hundred Million
Dollars ($500,000,000) or any commercial bank organized under the laws of any
other country having total assets in excess of Five Hundred Million Dollars
($500,000,000), (g) deposits available for withdrawal on demand with any
commercial bank organized in the United States of America having capital and
surplus in excess of Five Hundred Million Dollars ($500,000,000) or any
commercial bank organized under the laws of any other country having total
assets in excess of Five Hundred Million Dollars ($500,000,000), (h) investments
in money market funds substantially all of whose assets comprise securities of
the types described in clauses (a) through (f) and (i) of this definition, and
(i) auction rate securities or money market preferred stock having one of the
two highest ratings obtainable from either S&P or ▇▇▇▇▇'▇ (or, if at any time
neither S&P nor ▇▇▇▇▇'▇ may be rating such obligations, then from another
nationally recognized rating service designated by Borrower and reasonably
acceptable to Agent).
"Change in Directives" has the meaning ascribed thereto in Section
2.7(a).
"Closing Date" means June 26, 2000.
"Commitment" means, as to any Bank, the amount set forth opposite such
Bank's name as its Commitment on the Commitment Schedule, adjusted for the
effect of any one or more Assignment and Acceptance Agreements to which such
Bank may be or become a party and for any reductions in the Aggregate
Commitments pursuant to Section 2.3(c).
"Commitment Schedule" means the schedule attached as Schedule I to the
Credit Agreement.
"Committed Loan" means any Loan made pursuant to Section 2.1(a).
"Commodity Swap Agreement" means, with respect to any Person, any
physical or financial transaction for the forward or future purchase or sale of
gas, gas transportation, coal, coal transportation, electric energy, electric
capacity, electric transmission or related products to or under which such
Person is a party or a beneficiary on the Closing Date or becomes a party or a
beneficiary thereafter, in each case to the extent such transaction is entered
into for operations or hedging purposes.
"Consolidated Debt" means, without duplication, Debt of Borrower and
its consolidated Subsidiaries on a consolidated basis (excluding obligations in
respect of the Trust Preferred Securities) plus the Subsidiary Preferred
Securities.
"Consolidated Funds From Operations" means Consolidated Net Income plus
(or minus, as the case may be) depreciation, amortization, deferred taxes,
allowance for funds used during construction, capitalized interest and all other
non-cash items included, in accordance with GAAP, in operating activities in
Borrower's consolidated statement of cash flows (but excluding changes in
working capital).
"Consolidated Net Income" means, for any period, the net income (or
loss) of Borrower and its consolidated Subsidiaries for such period computed on
a consolidated basis
4
in accordance with GAAP (but excluding all extraordinary and non-recurring gains
and losses as determined in accordance with GAAP).
"Consolidated Net Interest Expense" means, for any period, the total
interest expense of Borrower and its consolidated Subsidiaries for such period
computed on a consolidated basis in accordance with GAAP (including, without
limitation, all interest, preferred dividends and preference dividends payable
in respect of the Trust Preferred Securities and the Subsidiary Preferred
Securities, whether or not they would be included in total interest expense
under GAAP), net of interest income and capitalized interest.
"Consolidated Net Tangible Assets" means, as of the date of any
determination thereof, the total amount of all assets of Borrower and its
consolidated Subsidiaries determined on a consolidated basis in accordance with
GAAP as of such date less the sum of (a) the consolidated current liabilities of
Borrower and its consolidated Subsidiaries determined in accordance with GAAP
and (b) the assets of Borrower and its consolidated Subsidiaries properly
classified as intangible assets determined on a consolidated basis in accordance
with GAAP.
"Consolidated Senior Interest Expense" means, for any period, the total
interest expense of Borrower and its consolidated Subsidiaries for such period
computed on a consolidated basis in accordance with GAAP (excluding all
interest, preferred dividends and preference dividends payable in respect of the
Trust Preferred Securities and the Subsidiary Preferred Securities), net of
interest income and capitalized interest.
"Control" (including the terms "controlling," "controlled by" and
"under common control with") means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of a
Person whether through the ownership of voting securities, by contract or
otherwise.
"CSFB" means Credit Suisse First Boston.
"Credit Documents" means (a) this Agreement, the Notes and any
Assignment and Acceptance Agreements, (b) any certificates, opinions and other
documents required to be delivered pursuant to Section 3.1, and (c) any other
documents (i) delivered pursuant to or in connection with any one or more of the
foregoing and (ii) expressly agreed by Agent and Borrower to be a "Credit
Document" at the time of delivery hereunder.
"Currency Protection Agreement" means, with respect to any Person, any
foreign exchange contract, currency swap agreement or other similar agreement or
arrangement intended to protect such Person against fluctuations in currency
values to or under which such Person is a party or a beneficiary on the Closing
Date or becomes a party or a beneficiary thereafter.
"Debt" of any Person means, at any date, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (c)
all obligations of such Person in respect of letters of credit, bankers'
acceptances, surety, bid, operating and performance bonds, performance
guarantees or other similar instruments or obligations (or reimbursement
obligations with respect thereto) (except, in each case, to the extent incurred
in the ordinary course of business), (d) obligations of such Person to pay the
deferred purchase price of property
5
or services, except trade accounts payable arising in the ordinary course of
business, (e) obligations of such Person as lessee under leases that shall have
been or are required to be, in accordance with GAAP, recorded as capital leases,
(f) all Debt of others secured by a Lien on any Property of such Person, whether
or not such Debt is assumed by such Person, provided that, for purposes of
determining the amount of any Debt of the type described in this clause, if
recourse with respect to such Debt is limited to such Property, the amount of
such Debt shall be limited to the lesser of the fair market value of such
Property and the amount of such Debt, (g) all Redeemable Stock (excluding, to
the extent otherwise included, the Trust Preferred Securities), valued at the
greater of its voluntary or involuntary liquidation preference plus accrued and
unpaid dividends, (h) all Debt of others Guaranteed by such Person to the extent
such Debt is Guaranteed by such Person, and (i) all net obligations of such
Person under Currency Protection Agreements and Interest Rate Protection
Agreements.
For purposes of determining any particular amount of Debt that is or
would be outstanding, Guarantees of, or obligations with respect to letters of
credit or similar instruments supporting (to the extent the foregoing
constitutes Debt), Debt otherwise included in the determination of such
particular amount shall not be included.
"Default" means any event, occurrence, condition, act or omission that,
with the giving of notice, the passage of time, or both, would constitute an
Event of Default.
"Default Rate" means the rate of interest determined pursuant to
Section 2.4(g), and unless otherwise specified, shall be calculated with
reference to the Base Rate.
"Directive" means any Law, and any directive, guideline or requirement
of any Governmental Authority (whether or not having the force of law).
"Dollar" and "$" mean the lawful currency of the United States of
America (and references to dollar amounts in Articles IV, V and VI shall also
include the equivalent thereof in any foreign currency).
"▇▇▇▇▇" means the SEC's Electronic Data Gathering, Analysis and
Retrieval system which can be accessed through the SEC's internet site at
▇▇▇.▇▇▇.▇▇▇ (or any successor system).
"Employee Benefit Plan" means any employee benefit plan (other than a
Multiemployer Plan) within the meaning of Section 3(3) of ERISA that (a) is
maintained by Borrower or any ERISA Affiliate of Borrower for, or on behalf of,
its current or former employees, officers or directors or (b) has at any time
within the preceding six years been maintained by Borrower or any current or
former ERISA Affiliate of Borrower.
"Environmental Law" means any Law imposing liability or standards of
conduct concerning, or otherwise relating to, pollution, waste disposal,
industrial hygiene, occupational health and safety, the presence, manufacture,
use, handling, treatment, storage, disposal or release of Hazardous Materials or
the protection of human health, plant life or animal life, natural resources or
the environment.
6
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means, as applied to any Person, any Person who is a
member of a group that is under common control with such Person and who,
together with such first Person, is treated as a single employer within the
meaning of Section 414(b) or (c) of the IRC or Section 4001(b) of ERISA.
"Eurocurrency Liabilities" has the meaning specified in Regulation D
promulgated by the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Bid Margin" means, with respect to any Eurodollar Bid Rate
Loan, the marginal rate of interest, if any, to be added to or subtracted from
the Eurodollar Rate to determine the rate of interest applicable to such
Eurodollar Bid Rate Loan, as specified by the Bank making such Eurodollar Bid
Rate Loan in its related Bid.
"Eurodollar Bid Rate Loan" means any Bid Rate Loan bearing interest as
provided in Section 2.4(b)(ii).
"Eurodollar Committed Loan" means a Committed Loan bearing interest as
provided in Section 2.4(b)(i).
"Eurodollar Rate" means the rate per annum equal to (a) the rate
determined by Agent at approximately 11:00 a.m. (London time) on the Interest
Rate Determination Date by reference to the British Bankers Association Interest
Settlement Rates for deposits in Dollars (as set forth by any service selected
by Agent which has been nominated by the British Bankers Association as an
authorized information vendor for the purpose of displaying such rates) for a
period equal to the relevant Interest Period, divided by (b) a percentage equal
to 100% minus the Eurodollar Rate Reserve Percentage for such Interest Period
(rounded upward to the nearest whole multiple of one-sixteenth of one percent
(0.0625%)); provided that, to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition, the
"Eurodollar Rate" shall be the interest rate per annum determined by Agent to be
the average (rounded upward to the nearest whole multiple of one-sixteenth of
one percent (0.0625%) per annum, if such average is not such a multiple) of the
rates per annum at which deposits in Dollars are offered to major banks in the
London interbank market in London, England by the Reference Banks at
approximately 11:00 a.m. (London time) on the Interest Rate Determination Date
for such Interest Period.
"Eurodollar Rate Loan" means any Eurodollar Bid Rate Loan or Eurodollar
Committed Loan.
"Eurodollar Rate Reserve Percentage" means, for each Interest Period
applicable to a Eurodollar Rate Loan, the highest reserve percentage applicable
to any Bank during such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System or any successor
for determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve
7
requirement), with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such Interest Period.
"Eurodollar Tranche" means all Eurodollar Committed Loans that have
current Interest Periods beginning on the same date and ending on the same later
date (whether or not such Loans shall originally have been made on the same
day).
"Event of Default" has the meaning specified in Section 6.1.
"Extension Date" has the meaning ascribed thereto in Section 2.1(b).
"Facility Fee" has the meaning ascribed thereto in Section 2.6(a)(iii).
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest one-hundredth (1/100th) of one percent
(1%)), equal to the weighted average of the rates of overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published for such day (or if such day is not a Banking Day,
for the next preceding Banking Day) by the Federal Reserve Bank of New York, or
if such rate is not so published for any day that is a Banking Day, the average
of the quotations for such day on such transactions received by Agent from three
federal funds brokers of recognized standing selected by Agent.
"Fees" has the meaning ascribed thereto in Section 2.6(a).
"FFO Coverage Ratio" means the ratio of (x) the sum of Consolidated
Funds From Operations plus Consolidated Net Interest Expense plus Significant
Operating Lease Payments to (y) Consolidated Senior Interest Expense plus
Significant Operating Lease Payments.
"Fixed Rate" means, with respect to any Fixed Rate Loan, the fixed rate
of interest per annum specified by the Bank making such Fixed Rate Loan in its
related Bid.
"Fixed Rate Loan" means any Bid Rate Loan bearing interest as provided
in Section 2.4(c).
"Funding Date" means, with respect to any Loan or L/C, the date on
which such Loan is funded or such L/C is issued.
"GAAP" means United States generally accepted accounting principles.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (a) to
purchase or pay (or advance or supply funds for the purchase or
8
payment of) such Debt (whether arising by virtue of partnership arrangements
(other than solely by reason by being a general partner of a partnership), by
agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise, or (b)
entered into for the purpose of assuring in any other manner the obligee of such
Debt of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided that the term Guarantee shall not
include endorsements for collection or deposit in the ordinary course of
business or the grant of any Lien in connection with any limited recourse
project financings of the type described in clause (e) of the definition of
"Permitted Subsidiary Debt". The term "Guarantee" used as a verb has a
corresponding meaning.
"Hazardous Materials" means any asbestos, flammables, volatile
hydrocarbons, industrial solvents, explosive or radioactive materials, hazardous
wastes, toxic substances, oil, petroleum, or related materials or any other
material, substance, waste, element or compound regulated pursuant to any
Environmental Law now or hereafter in effect, including, without limitation,
substances defined as "hazardous substances," "hazardous materials,"
"contaminants," "pollutants," "hazardous wastes," "toxic substances," "solid
waste," "extremely hazardous substance," "liquefied natural gas," "synthetic
gas" or "natural gas liquids" (a) in (i) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act, 42 U.S.C. Section 9601 et seq., (ii) the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et seq., (iii)
the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., (iv)
the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251 et
seq., (v) the Clean Air Act, 33 U.S.C. Section 7401 et seq., (vi) the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq., (vii) the Safe Drinking
Water Act, 42 U.S.C. Section 300f et seq., (viii) applicable foreign, state or
local law, or (ix) the rules, orders or regulations adopted or proposed or in
the publications promulgated pursuant to said laws; or (b) in any reported
decision of a foreign, state or federal court.
"Interest Period" means:
(a) with respect to any Eurodollar Committed Loan, the period
commencing on:
(i) the Funding Date or conversion date, as the case may be, with
respect to such Eurodollar Committed Loan, or
(ii) if such Interest Period is selected in connection with the
continuation of all or any portion of a Eurodollar Tranche, the last day of
the Interest Period applicable to such Eurodollar Tranche,
and ending one, two, three or six months or, if available, nine or twelve
months, thereafter, or, if available, such periods of shorter than one month as
may be agreed to by Agent, as selected by Borrower in its Notice of Borrowing,
Request for Conversion of or to a Eurodollar Committed Loan or Request for
Continuation of a Eurodollar Committed Loan, as the case may be, given with
respect thereto;
9
(b) with respect to any Eurodollar Bid Rate Loan, the period commencing
on the Funding Date with respect to such Eurodollar Bid Rate Loan and ending
one, two, three or six months, or, if available, nine or twelve months
thereafter (or, if available, such periods of shorter than one month as may be
agreed to by Agent), as specified by Borrower in the applicable Bid Request; and
(c) with respect to any Fixed Rate Loan, the period commencing on the
date of such Loan and ending on the date specified in the applicable Bid
Request;
provided that the foregoing provisions relating to Interest Periods are subject
to the following:
(w) if any Interest Period would otherwise end on a day that is not a
Banking Day, such Interest Period shall be extended to the next succeeding
Banking Day unless, in the case of an Interest Period applicable to a
Eurodollar Rate Loan, the result of such extension would be to carry such
Interest Period into another calendar month, in which case such Interest
Period shall end on the immediately preceding Banking Day;
(x) no Interest Period may be selected that would extend beyond the
Termination Date, and any Interest Period that would otherwise extend
beyond the Termination Date shall end on the Termination Date;
(y) any Interest Period applicable to a Eurodollar Rate Loan that
begins on the last Banking Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Banking Day of a calendar
month; and
(z) Borrower shall select Interest Periods so as not to require a
payment or prepayment of any Eurodollar Rate Loan or Fixed Rate Loan during
an Interest Period for such Loan.
"Interest Rate Determination Date" means, as to any Interest Period
applicable to a Eurodollar Rate Loan, the second Banking Day before the first
day of such Interest Period.
"Interest Rate Protection Agreement" means, with respect to any Person,
any interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement intended to protect such Person against
fluctuations in interest rates to or under which such Person or any of its
Subsidiaries is a party or a beneficiary on the date of this Agreement or
becomes a party or a beneficiary thereafter.
"Investment" in any Person means (a) any direct or indirect loan,
advance or other extension of credit made to such Person (excluding commission,
travel and similar advances to officers and employees made in the ordinary
course of business), (b) any capital contribution to such Person, (c) any
purchase of an ownership interest in such Person, (d) any purchase of all or
substantially all of the assets of such Person or (e) any purchase of assets
constituting a business unit of such Person. For purposes of this definition,
the dollar value of any Investment made by any Person shall be the amount of
capital invested by such Person in such Investment.
10
"IRC" means the Internal Revenue Code of 1986, as amended from time to
time.
"L/C" means any standby L/C issued by the L/C Issuer for the account of
Borrower pursuant to Section 2.2, in each case, as amended, supplemented or
modified from time to time.
"L/C Expiration Date" means, with respect to any L/C, the date that is
the earlier to occur of (a) three-hundred sixty-five (365) days after the date
of issuance thereof and (b) the Termination Date.
"L/C Fees" has the meaning ascribed thereto in Section 2.6.
"L/C Issuance Request" means a request, in the form of Exhibit E, for
the issuance of a L/C.
"L/C Issuer" means Commerzbank AG, New York Branch, and, for purposes
of any L/C issued by such Person, any other Person that becomes an "L/C Issuer"
pursuant to Section 2.2(h).
"L/C Obligations" means, as of any date of determination, all the
existing liabilities (including all fees) of Borrower to the L/C Issuer, Agent
and the Banks in respect of all L/Cs outstanding, whether such liability is
contingent or fixed, which liabilities shall be computed to include the sum of
the aggregate maximum amount then available to be drawn under all L/Cs
(assuming, whether or not such is the case, that such aggregate maximum amount
shall have been drawn) and the aggregate amount of any Unreimbursed Drawings
then outstanding.
"L/C Outstandings" means at any time, the sum of (a) the maximum
aggregate amount available to be drawn under all outstanding L/Cs and (b) the
amount of all Unreimbursed Drawings.
"L/C Sublimit" means at any time, an amount equal to the lesser of (x)
One Hundred Fifty Million Dollars ($150,000,000), as such amount may be reduced
in accordance with the terms hereof, and (y) the Aggregate Commitments at such
time. The L/C Sublimit shall automatically and permanently terminate on the
Termination Date.
"Laws" means all federal, state, local or foreign laws, rules,
regulations and treaties, all judgments, awards, orders, writs, injunctions or
decrees issued by any federal, state, local or foreign authority, court,
tribunal, agency or other governmental authority, or by any arbitrator, all
permits, licenses, approvals, franchises, notices, authorizations and similar
filings by or with any federal, state, local or foreign governmental authority
and all consent decrees or regulatory agreements with any federal, state, local
or foreign governmental authority.
"Lien" means any lien, mortgage, security interest, pledge, charge,
conditional sale or other title retention arrangement or other encumbrance (it
being understood, however, for avoidance of doubt, that a mere agreement not to
▇▇▇▇▇ ▇ ▇▇▇▇ on any one or more assets does not constitute a "Lien").
11
"Loan" means any Committed Loan or Bid Rate Loan.
"Majority Banks" means:
(a) As of any time before the Termination Date, except during any
period that an Event of Default pursuant to Section 6.1(a) has occurred and is
continuing, Banks holding Commitments that collectively constitute more than 50%
of the aggregate amount of all Commitments; and
(b) As of any time on or after the Termination Date, and during any
period that an Event of Default pursuant to Section 6.1(a) has occurred and is
continuing, Banks whose total outstanding Loans exceed 50% of the total
outstanding Loans of all Banks.
"Mandatory L/C Borrowing" has the meaning ascribed thereto in Section
2.2(c)(i).
"Material Adverse Effect," means (a) any change or effect, when taken
together with all other adverse changes and effects relating to Borrower and its
Subsidiaries, that is materially adverse to the business, operations,
properties, condition (financial or otherwise), assets or liabilities
(including, without limitation, contingent liabilities) of Borrower and its
Subsidiaries, taken as a whole, or (b) the material impairment of the ability of
Borrower to perform its obligations under any Credit Document to which it is a
party or the material impairment of the ability of Agent or any Bank to enforce
or collect any of the Obligations.
"Material Subsidiary" means MidAmerican Energy Company, Northern
Electric plc, and each other Subsidiary of Borrower with respect to which (x)
Borrower's percentage ownership interest in such Subsidiary multiplied by (y)
the value of the consolidated assets of such Subsidiary, determined on a
consolidated basis in accordance with GAAP, represents at least 15% of the
consolidated assets of Borrower, determined on a consolidated basis in
accordance with GAAP, based on the most recent financial statements delivered
pursuant to Section 5.1(h).
"Maturity Date" means with respect to each Eurodollar Rate Loan or
Fixed Rate Loan, the last day of the Interest Period applicable to such
Eurodollar Rate Loan or Fixed Rate Loan.
"MEHC Shareholders" means, collectively, (a) the holders of the common
stock of Borrower, (b) the holders of Borrower's 11% Junior Subordinated
Deferrable Interest Debentures and (c) the holders of Borrower's Zero Coupon
Convertible Preferred Stock.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which Borrower or any ERISA Affiliate of Borrower is
making, or is obligated to make, contributions or has made, or has been
obligated to make, contributions within the preceding six years.
12
"Note" means a promissory note issued by Borrower pursuant to Section
2.5(i), substantially in the form of (a) Exhibit C-1, with respect to Committed
Loans, or (b) Exhibit C-2, with respect to Bid Rate Loans, in each case,
appropriately completed in conformity herewith.
"Notice of Borrowing" means a request for a borrowing of Committed
Loans in the form of Exhibit B-1.
"Obligations" means all obligations, liabilities and indebtedness of
every nature of Borrower from time to time owed to Agent or any Bank under the
Credit Documents and the Application Documents and any other agreement,
instrument or document relating to reimbursement or payment of L/C Obligations,
including the principal amount of all debts, claims and indebtedness, accrued
and unpaid interest and all fees, costs and expenses, whether primary or
secondary, direct or contingent, fixed or otherwise, heretofore, now or from
time to time hereafter owing, due or payable whether before or after the filing
of a proceeding under the Bankruptcy Code by or against Borrower or any of its
Subsidiaries.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Pension Plan" means any "pension plan" (as defined in Section 3(2) of
ERISA) that is subject to the provisions of Title IV of ERISA or Section 412 of
the IRC (other than a Multiemployer Plan) and that (a) is maintained for
employees of Borrower or any of its ERISA Affiliates or (b) has at any time
within the preceding six years been maintained for the employees of Borrower or
any of its current or former ERISA Affiliates.
"Permitted Asset Sales" means, collectively, (a) dispositions of all or
substantially all of the assets of Borrower and its Subsidiaries that are
permitted under Section 5.2(b), (b) dispositions of assets required to be sold
to conform with laws or governmental regulations, (c) dispositions of
short-term, readily marketable investments purchased for cash management
purposes with funds not representing the proceeds of other asset sales, (d)
dispositions of assets in addition to the foregoing if the proceeds thereof are
retained by Borrower as cash or Cash Equivalents or used to retire Debt of
Borrower (other than Debt that is subordinated to the Obligations) and its
Subsidiaries, and (e) dispositions of assets in addition to the foregoing if, on
a pro forma basis, the aggregate net book value of all such dispositions during
the most recent 12-month period would not exceed 10% of Consolidated Net
Tangible Assets computed as of the end of the most recent quarter preceding the
disposition, provided that any such dispositions will be disregarded for
purposes of such 10% limitation (but, for the avoidance of doubt, be deemed to
be Permitted Asset Sales) if the net proceeds thereof are invested in assets in
similar or related lines of business (including geographic extensions thereof)
of Borrower and its Subsidiaries.
"Permitted Facility" means (a) an electric power generation,
transmission or distribution facility (including, without limitation, a
cogeneration facility), a thermal energy generation or distribution facility, a
gas production, transportation or distribution facility, a minerals extraction,
processing or distribution facility or any related facility (including residual
waste management and facilities that use thermal energy from a cogeneration
facility), and its or their related electric power transmission, fuel supply and
fuel transportation facilities, together with its or their related power supply,
thermal energy supply, gas supply, minerals supply and
13
fuel contracts and other facilities, services or goods that are ancillary,
incidental, necessary or reasonably related to the marketing, development,
construction, management, servicing, ownership or operation of the foregoing,
owned by a utility or otherwise, as well as other contractual arrangements with
customers, suppliers and contractors, or (b) any infrastructure facility related
to the above facilities or to (i) the treatment of water for municipal and other
uses, (ii) the treatment or management of waste water, (iii) the treatment,
management or remediation of waste, pollution or potential pollutants or (iv)
any other process or environmental purpose.
"Permitted Liens" means any Liens that are:
(a) Liens for taxes or other governmental levies and assessments that
(i) do not arise under ERISA or Environmental Laws and (ii) are not yet due
or that are being contested in good faith and by appropriate proceedings if
adequate reserves with respect thereto are available to Borrower and
reasonably acceptable to Agent or are maintained on the books of Borrower
in accordance with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business that are not
overdue for a period of more than 60 days or that are being contested in
good faith and by appropriate proceedings;
(c) pledges or deposits in connection with worker's compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(e) easements, rights-of-way, restrictions (including landmarking and
zoning restrictions), royalties, leasehold and fee interest covenants and
other similar encumbrances incurred or imposed in the ordinary course of
business which are not of the nature of a Lien for security purposes and
which do not in any case materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the business of
Borrower or any of its Subsidiaries;
(f) Liens incidental to the conduct of the grantor's business or the
ownership of its property and assets which do not relate to Debt, do not
arise under ERISA, the IRC or Environmental Laws and which do not
materially detract from the value of its property or its assets or
materially impair the use thereof in the operation of its business;
(g) zoning and landmarking restrictions;
(h) Liens arising from judgments, provided that (i) the execution or
other enforcement of such Lien is effectively stayed, (ii) the judgment
secured thereby is being actively appealed in good faith and by appropriate
proceedings, (iii) adequate book reserves shall have been established and
maintained and shall exist with respect thereto, (iv) such Lien shall have
been in existence no more than sixty days from the date of its creation,
and (v) the aggregate amount so secured, with respect to all judgments
against
14
Borrower or any of its Material Subsidiaries, shall not at any time exceed
Fifty Million Dollars ($50,000,000);
(i) Purchase Money Liens, if, after giving effect thereto and any
concurrent transactions: (i) each such Purchase Money Lien secures Debt in
an amount not exceeding the lesser of (A) the cost of acquisition or
construction of the property subject to such Lien and (B) 90% of the fair
market value of such property at the time of acquisition or construction,
(ii) no Default or Event of Default would exist as a result of incurring
the Debt secured by such Purchase Money Lien (determined, for purposes of
compliance with Section 5.3(a), on a pro forma basis for the period of four
consecutive fiscal quarters of Borrower then most recently ended, as if the
Debt secured thereby had been incurred (and the property subject to such
Lien had been acquired) on the first day of such period, and, for purposes
of compliance with Section 5.3(b), on a pro forma basis as if the Debt
secured thereby had been incurred (and the property subject to such Lien
had been acquired) on the last day of Borrower's fiscal quarter then most
recently ended), and (iii) the holder of such Debt has no recourse to
Borrower or its assets other than assets subject to such Purchase Money
Lien; and any extensions, renewals, refundings or refinancings of any Debt
secured thereby, provided that the Liens in connection with such renewal,
extension, refunding or refinancing shall be limited to all or part of the
specific property that was subject to the original Lien;
(j) Liens existing on property of a Person at the time such property is
acquired by Borrower, provided that such Liens (i) are not created,
incurred or assumed in contemplation of such acquisition and (ii) do not
extend to any other property of Borrower; and any extensions, renewals,
refundings or refinancings of any Debt secured thereby, provided that the
Liens in connection with such renewal, extension, refunding or refinancing
shall be limited to all or part of the specific property that was subject
to the original Lien;
(k) Liens created in the ordinary course of business of Borrower in
connection with the development, construction, operation, financing or
refinancing of a Permitted Facility and which, in any case, are (i) Liens
incurred to secure obligations in respect of letters of credit, bankers'
acceptances, surety, bid, operating and performance bonds, performance
guarantees or other similar instruments or obligations (or reimbursement
obligations with respect thereto), (ii) Liens arising by reason of security
for the performance of tenders, contracts (other than contracts for the
payment of money) or leases, or (iii) Liens arising by reason of deposits
to secure public or statutory obligations, or to secure permitted contracts
for the purchase or sale of any currency entered into in the ordinary
course of business;
(l) Liens in effect on the date hereof on the assets of Borrower, and
any refinancing, restructuring, extension or renewal thereof;
(m) Liens to secure the Obligations;
(n) Liens to secure (i) Debt described in clause (e) of the definition
of "Permitted Subsidiary Debt," and (ii) to the extent incurred with
respect to Debt
15
described in such clause (e), Debt described in clause (h) of the
definition of "Permitted Subsidiary Debt"); and
(o) Liens, in addition to the foregoing, that secure obligations not in
excess of Twenty Five Million Dollars ($25,000,000).
"Permitted Subsidiary Debt" means, with respect to any Subsidiary of
Borrower (without duplication):
(a) Debt outstanding on the Closing Date;
(b) Debt incurred under any Interest Rate Protection Agreement or
Currency Protection Agreement (for the avoidance of doubt, obligations
under Commodity Swap Agreements shall not be deemed to constitute Debt);
(c) Debt owed to any Affiliate of such Subsidiary;
(d) Debt of any Person that becomes a Subsidiary after the Closing
Date, provided that such Debt exists at the time such Person becomes a
Subsidiary and is not created, incurred or assumed in contemplation of such
acquisition;
(e) Debt that is not recourse to Borrower other than with respect to
Liens granted by Borrower to secure such Debt and limited guarantees of
such Debt by Borrower, which Liens and limited guarantees are of a type
consistent with other limited recourse project financings, including, to
the extent otherwise complying with the foregoing restriction, (i) Debt
incurred in connection with the acquisition, development, construction,
improvement, maintenance or operation of any projects, companies,
partnership or joint venture interests or other assets, including Debt
assumed in connection with the acquisition of such assets, (ii) Debt
incurred for working capital purposes, and (iii) Debt incurred by a
Subsidiary that such Subsidiary is expressly permitted to incur under any
credit agreement, indenture or other debt instrument to which such
Subsidiary is a party;
(f) Debt in addition to the foregoing to the extent that (i) the Debt
of such Subsidiary has been assigned a rating by either Moody's or S&P,
(ii) a Ratings Downgrade with respect to such Subsidiary does not occur as
a result of the incurrence of such Debt and (iii) such Debt is not incurred
to any material extent to fund a dividend to the shareholders of Borrower;
(g) Debt in addition to the foregoing that does not at any time exceed
Fifty Million Dollars ($50,000,000) in the aggregate for all Subsidiaries
of Borrower; and
(h) Debt that represents an extension, renewal, replacement or
refinancing of any of the foregoing, provided that, in the case of a
replacement or refinancing, the principal amount of such new Debt shall not
exceed the principal amount of the Debt being replaced or refinanced plus
10% of such principal amount.
16
If an incurrence of Debt falls within more than one of the categories
of Permitted Subsidiary Debt described above, Borrower may elect which category
(or categories) of Permitted Subsidiary Debt in which to include such issuance.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, limited
liability company, joint venture or other entity, or a government or any
political subdivision or agency thereof.
"Property" of any Person means all types of real, personal, tangible or
mixed property owned by such Person whether or not included in the most recent
consolidated balance sheet of such Person under GAAP.
"PUHCA" means the Public Utility Holding Company Act of 1935, as
amended.
"Purchase Money Lien" means any Lien on property acquired or
constructed by Borrower or any of its Subsidiaries after the Closing Date, which
Lien secures all or a portion of the related purchase price or construction
costs of such property, provided that such Lien (i) is created within 180 days
of such acquisition or construction, (ii) encumbers only property purchased or
constructed after the Closing Date and acquired or constructed with the proceeds
of the Debt secured thereby, and (iii) does not extend to any other property.
"Rating Adjustment Date" means any date on which the Status (as defined
in the Pricing Schedule attached hereto as Schedule II) changes as a result of
an upgrade or downgrade in Borrower's senior unsecured long term-debt rating by
S&P or Moody's.
"Ratings Downgrade" means, with respect to any Person, a downgrade in
the ratings assigned to such Person's Debt by S&P or Moody's.
"Redeemable Stock" means any class or series of Capital Stock of any
Person that by its terms or otherwise is (a) required to be redeemed prior to
January 15, 2004, (b) redeemable at the option of the holder of such class or
series of Capital Stock at any time prior to January 15, 2004 or (c) convertible
into or exchangeable for Capital Stock referred to in clause (a) or (b) above or
Debt having a scheduled maturity prior to January 15, 2004, provided that any
Capital Stock that would not constitute Redeemable Stock but for provisions
thereof giving holders thereof the right to require Borrower to purchase or
redeem such Capital Stock upon the occurrence of an "asset sale" or a "change of
control" occurring prior to the Termination Date shall not constitute Redeemable
Stock if the "asset sale" or "change of control" provision applicable to such
Capital Stock specifically provides that Borrower shall not purchase or redeem
any such Capital Stock pursuant to such covenants either (x) prior to Borrower's
repayment of the Revolving Loans, termination of the Commitments and cash
collateralization of any outstanding Letters of Credit or (y) at any time after
the occurrence and during the continuance of an Event of Default.
"Reference Banks" means, initially, the New York City office of Credit
Suisse First Boston and, at the request of Agent, shall include one other Bank
that deals in Dollar deposits in the London interbank market that may be
selected from time to time by Agent with Borrower's written consent (which
consent shall not be unreasonably withheld) or any substitute
17
Reference Bank for the foregoing (or any of them) from time to time selected by
Agent with Borrower's written consent (which consent shall not be unreasonably
withheld).
"Request for Continuation of a Eurodollar Committed Loan" means a
request for the continuation of a Eurodollar Committed Loan in the form of
Exhibit B-2.
"Request for Conversion of or to a Eurodollar Committed Loan" means a
request for the conversion of or to a Eurodollar Committed Loan in the form of
Exhibit B-3.
"Responsible Officer" means, as to any Person, the president, the chief
executive officer, the chief operating officer, the chief financial officer, any
vice president, the chief corporate officer, the treasurer or the controller of
such Person.
"Restricted Payments" means all dividends (other than dividends payable
in shares of Capital Stock of Borrower) and other distributions, including,
without limitation, pursuant to stock repurchases, to the MEHC Shareholders
(excluding all interest, preferred dividends and preference dividends payable in
respect of the Trust Preferred Securities).
"S&P" means Standard & Poor's Rating Services.
"SEC" means the Securities and Exchange Commission.
"Significant Operating Lease" means any operating lease or group of
related operating leases (including, without limitation, any synthetic lease or
tax retention operating lease) with respect to assets having an aggregate fair
market value, at the time such assets first become subject to such lease, in
excess of Seventy Five Million Dollars ($75,000,000).
"Significant Operating Lease Obligations" means, at any time, with
respect to any Significant Operating Lease, the sum of the present values at
such time of all payments that Borrower or any of its consolidated Subsidiaries
is required to make over the remaining term of such Significant Operating Lease.
"Significant Operating Lease Payments" means, for any period, the
aggregate amount of all payments paid or required to be paid by Borrower or any
of its consolidated Subsidiaries under Significant Operating Leases for such
period.
"Stated Maturity" means, with respect to any debt security or any
installment of interest thereon, the date specified in such debt security as the
fixed date on which any principal of such debt security or any such installment
of interest is due and payable.
"Subsidiary" means, with respect to any Person, any corporation or
other entity (a) of which such Person owns, directly or indirectly, at least 50%
of the capital stock or other ownership interests, and (b) in respect of which
such Person, directly or indirectly, (i) controls, by voting power, board or
management committee membership or through the provisions of any applicable
partnership, shareholder or other similar agreement or under an operating,
maintenance or management agreement or otherwise, the management or operation of
such corporation or other entity, or (ii) otherwise has significant influence
over the management or operation of such corporation or other entity in all
material respects (significant influence
18
includes, without limitation, the right to control or veto any material act or
decision) in connection with such management or operation.
"Subsidiary Preferred Securities" means, collectively, (a) each of the
$3.30, $3.75, $3.90, $4.20, $4.35, $4.40 and $4.60 Series of Cumulative
Preferred Stock of MidAmerican Energy Company, (b) the $5.25 Series of
Cumulative Preferred Stock of MidAmerican Energy Company due November 1, 2003,
(c) the $7.80 Series of Cumulative Preferred Stock of MidAmerican Energy Company
due May 1, 2006, (d) the 7.98% Cumulative Quarterly Income Preferred Securities,
Series A, of MidAmerican Energy Company, (e) the 8.061p Series of Cumulative
Preference Shares of Northern Electric plc, and (f) any other series of
preferred or preference stock that may in the future be issued by any Subsidiary
of Borrower to Persons other than the MEHC Shareholders.
"Tax" has the meaning ascribed thereto in Section 2.8(a).
"Tax Indemnitee" has the meaning ascribed thereto in Section 2.8(a).
"Termination Date" means the date that is three years after the Closing
Date (or such later date to which the Termination Date shall have been extended
pursuant to Section 2.1(b)) or such earlier date upon which the whole of the
Commitments are terminated, pursuant to Section 6.1 or otherwise.
"Termination Event" means: (a) a "Reportable Event" described in
Section 4043 of ERISA and the regulations issued thereunder occurs with respect
to a Pension Plan, except to the extent that the PBGC has by regulation waived
the notice requirements of Section 4043(a) of ERISA; or (b) the withdrawal of
Borrower or any of its ERISA Affiliates from a Pension Plan during a plan year
in which it was a "substantial employer" as defined in Section 4001(a)(2) of
ERISA; or (c) the termination of a Pension Plan, the filing of a notice of
intent to terminate a Pension Plan or the treatment of a Pension Plan amendment
as a termination under Section 4041 of ERISA; or (d) the institution of
proceedings to terminate, or the appointment of a trustee with respect to, any
Pension Plan by the PBGC; or (e) the partial or complete withdrawal of Borrower
or any of its ERISA Affiliates from a Multiemployer Plan; or (f) the imposition
of a Lien with respect to a Pension Plan pursuant to Section 412 of the IRC or
Section 302 of ERISA; or (g) any event or condition that results in the
reorganization or insolvency of a Multiemployer Plan under Sections 4241 or 4245
of ERISA; or (h) any event or condition that results in the termination of a
Multiemployer Plan under Section 4041A of ERISA or the institution by the PBGC
of proceedings to terminate a Multiemployer Plan under Section 4042 of ERISA.
"364-Day Credit Agreement" means the Credit Agreement (Facility A),
dated as of the date hereof, by and among Borrower, the banks and other
financial institutions parties thereto, CSFB, as administrative agent,
Commerzbank AG, New York Branch, as syndication agent, and Bank One, NA, as
documentation agent.
"Trust Preferred Securities" means, collectively, (a) the preferred
securities issued by CalEnergy Capital Trust II, CalEnergy Capital Trust III or
MidAmerican Capital Trust I, the common securities of which are directly or
indirectly owned by Borrower and, without duplication, any junior subordinated
debentures issued by Borrower to any of such trusts in
19
connection with such preferred securities, and (b) any other series of preferred
securities that may in the future be issued to the MEHC Shareholders.
"Type" means, with respect to any Loan, a Base Rate Loan, a Eurodollar
Committed Loan, a Eurodollar Bid Rate Loan or a Fixed Rate Loan.
"Unreimbursed Drawings" has the meaning ascribed thereto in Section
2.2(c)(i).
"U.S. Withholding Taxes" means Taxes imposed by the federal government
of the United States of America by means of withholding pursuant to sections 881
and 1442 of the IRC.
"Utilization Fee" has the meaning ascribed thereto in Section
2.6(a)(ii).
"Utilized Percentage" means, on any day, (a) the sum of the aggregate
principal amount of all outstanding Loans and the L/C Outstandings, divided by
(b) the Aggregate Commitments, expressed as a percentage.
20