Exhibit 4(n) -
REVOLVING CREDIT AGREEMENT
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Dated as of December 21, 2001
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among
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DPL INC.,
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THE LENDERS FROM TIME TO TIME PARTY HERETO,
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KEYBANK NATIONAL ASSOCIATION,
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as Syndication Agent
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and
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BANK ONE, NA
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as Administrative Agent
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BANC ONE CAPITAL MARKETS, INC.
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as Lead Arranger and Sole Book Runner
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SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
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Bank One Plaza
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▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS................................................................................32
ARTICLE II THE CREDITS................................................................................42
2.1 Commitment.....................................................................................42
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2.2 Required Payments; Termination.................................................................43
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2.3 Ratable Loans..................................................................................43
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2.4 Types of Advances..............................................................................43
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2.5 Facility Fee; Utilization Fee; Reductions in Aggregate Commitment..............................43
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2.6 Minimum Amount of Each Advance.................................................................43
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2.7 Optional Principal Payments....................................................................43
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2.8 Method of Selecting Types and Interest Periods for New Advances................................44
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2.9 Conversion and Continuation of Outstanding Advances............................................45
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2.10 Changes in Interest Rate, etc..................................................................45
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2.11 Rate Applicable After Default..................................................................45
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2.12 Method of Payment..............................................................................46
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2.13 Noteless Agreement; Evidence of Indebtedness...................................................46
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2.14 Telephonic Notices.............................................................................47
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2.15 Interest Payment Dates; Interest and Fee Basis.................................................47
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2.16 Notification of Advances, Interest Rates, Prepayments and Commitment Reductions................47
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2.17 Lending Installations..........................................................................48
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2.18 Non-Receipt of Funds by the Administrative Agent...............................................48
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2.19 Replacement of Lender..........................................................................48
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ARTICLE III YIELD PROTECTION; TAXES....................................................................49
3.1 Yield Protection...............................................................................49
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3.2 Changes in Capital Adequacy Regulations........................................................49
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3.3 Availability of Types of Advances..............................................................50
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3.4 Funding Indemnification........................................................................50
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3.5 Taxes..........................................................................................50
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3.6 Lender Statements; Survival of Indemnity.......................................................52
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ARTICLE IV CONDITIONS PRECEDENT.......................................................................53
4.1 Initial Advance................................................................................54
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4.2 Each Advance...................................................................................55
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ARTICLE V REPRESENTATIONS AND WARRANTIES.............................................................55
5.1 Existence and Standing.........................................................................55
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5.2 Authorization and Validity.....................................................................55
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5.3 No Conflict; Government Consent................................................................55
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5.4 Financial Statements...........................................................................56
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5.5 Material Adverse Change........................................................................56
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5.6 Taxes..........................................................................................56
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5.7 Litigation and Contingent Obligations..........................................................56
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5.8 Subsidiaries...................................................................................57
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5.9 ERISA..........................................................................................57
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5.10 Accuracy of Information........................................................................57
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5.11 Regulation U...................................................................................57
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5.12 Material Agreements............................................................................57
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5.13 Compliance With Laws...........................................................................57
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5.14 Ownership of Properties........................................................................57
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5.15 Plan Assets; Prohibited Transactions...........................................................58
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5.16 Environmental Matters..........................................................................58
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5.17 Investment Company Act.........................................................................58
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5.18 Public Utility Holding Company Act.............................................................58
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ARTICLE VI COVENANTS..................................................................................58
6.1 Financial Reporting............................................................................58
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6.2 Use of Proceeds................................................................................60
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6.3 Notice of Default..............................................................................60
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6.4 Conduct of Business............................................................................60
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6.5 Taxes..........................................................................................60
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6.6 Insurance......................................................................................60
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6.7 Compliance with Laws...........................................................................60
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6.8 Maintenance of Properties......................................................................61
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6.9 Inspection.....................................................................................61
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6.10 Merger.........................................................................................61
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6.11 Sale of Assets.................................................................................61
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6.12 Investments and Acquisitions...................................................................61
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6.13 Liens..........................................................................................62
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6.14 Dividends......................................................................................63
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6.15 Intentionally Omitted..........................................................................63
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6.16 Affiliates.....................................................................................63
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6.17 Financial Covenants............................................................................64
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6.18 Financial Contracts............................................................................64
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6.19 Margin Stock...................................................................................64
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ARTICLE VII DEFAULTS...................................................................................64
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES.............................................66
8.1 Acceleration...................................................................................67
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8.2 Amendments.....................................................................................67
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8.3 Preservation of Rights.........................................................................67
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ARTICLE IX GENERAL PROVISIONS.........................................................................68
9.1 Survival of Representations....................................................................68
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9.2 Headings.......................................................................................68
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9.3 Entire Agreement...............................................................................68
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9.4 Several Obligations; Benefits of this Agreement................................................68
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9.5 Expenses; Indemnification......................................................................68
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9.6 Numbers of Documents...........................................................................69
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9.7 Accounting.....................................................................................69
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9.8 Severability of Provisions.....................................................................70
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9.9 Nonliability of Lenders........................................................................70
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9.10 Confidentiality................................................................................70
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9.11 Nonreliance....................................................................................70
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ARTICLE X THE ADMINISTRATIVE AGENT...................................................................70
10.1 Appointment; Nature of Relationship............................................................71
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10.2 Powers.........................................................................................71
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10.3 General Immunity...............................................................................71
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10.4 No Responsibility for Loans, Recitals, etc.....................................................71
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10.5 Action on Instructions of Lenders..............................................................72
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10.6 Employment of Administrative Agents and Counsel................................................72
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10.7 Reliance on Documents; Counsel.................................................................72
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10.8 Administrative Agent's Reimbursement and Indemnification.......................................72
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10.9 Notice of Default..............................................................................73
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10.10 Rights as a Lender.............................................................................73
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10.11 Lender Credit Decision.........................................................................73
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10.12 Successor Administrative Agent.................................................................73
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10.13 Administrative Agent's Fee.....................................................................74
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10.14 Delegation to Affiliates.......................................................................74
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10.15 Syndication Agent..............................................................................75
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ARTICLE XI SETOFF; RATABLE PAYMENTS...................................................................75
11.1 Setoff.........................................................................................75
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11.2 Ratable Payments...............................................................................75
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ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS..........................................75
12.1 Successors and Assigns.........................................................................75
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12.2 Participations.................................................................................76
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12.3 Assignments....................................................................................76
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12.4 Dissemination of Information...................................................................78
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12.5 Tax Treatment..................................................................................78
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ARTICLE XIII NOTICES....................................................................................78
13.1 Notices........................................................................................78
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13.2 Change of Address..............................................................................79
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ARTICLE XIV COUNTERPARTS...............................................................................79
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL...............................79
15.1 CHOICE OF LAW..................................................................................79
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15.2 CONSENT TO JURISDICTION........................................................................79
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15.3 WAIVER OF JURY TRIAL...........................................................................80
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SCHEDULES
Pricing Schedule
Schedule I - Commitments
Schedule 5.7 - Litigation
Schedule 5.8 - Subsidiaries
Schedule 6.13 - Liens
EXHIBITS
Exhibit A - Form of Opinion of Borrower's Counsel
Exhibit B - Form of Compliance Certificate
Exhibit C - Form of Assignment Agreement
Exhibit D - Form of Loan/Credit Related Money Transfer Instruction
Exhibit E - Form of Note
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REVOLVING CREDIT AGREEMENT
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This Revolving Credit Agreement, dated as of December 21, 2001, is
among DPL Inc., an Ohio corporation (the "Borrower"), the lenders party hereto
(the "Lenders"), KeyBank National Association, as Syndication Agent (the
"Syndication Agent"), and Bank One, NA, as Administrative Agent (the
"Administrative Agent"). The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage
or voting power) of the outstanding ownership interests of a partnership or
limited liability company.
"Advance" means a borrowing hereunder, (i) made by the Lenders on the
same Borrowing Date, or (ii) converted or continued by the Lenders on the same
date of conversion or continuation, consisting, in either case, of the aggregate
amount of the several Loans of the same Type and, in the case of Eurodollar
Loans, for the same Interest Period.
"Administrative Agent" means Bank One, NA in its capacity as
contractual representative of the Lenders pursuant to Article X, and not in its
individual capacity as a Lender, and any successor Administrative Agent
appointed pursuant to Article X.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such Person.
A Person shall be deemed to control another Person if the controlling Person
possesses, directly or indirectly, the power to direct or cause the direction of
the management or policies of the controlled Person, whether through ownership
of stock, by contract or otherwise.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as reduced from time to time pursuant to the terms hereof.
"Agreement" means this Revolving Credit Agreement, as it may be
amended or modified and in effect from time to time.
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"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of the
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Fee Rate" means, at any time, the percentage rate per
annum at which Facility Fees are accruing on the Aggregate Commitment at such
time as set forth in the Pricing Schedule.
"Applicable Margin" means (x) with respect to Eurodollar Advances at
any time, the percentage rate per annum which is applicable at such time with
respect to Eurodollar Advances as set forth in the Pricing Schedule, and (y)
with respect to Floating Rate Advances at any time, the percentage rate per
annum which is applicable at such time with respect to Floating Rate Advances as
set forth in the Pricing Schedule.
"Applicable Utilization Fee Rate" means (i) at any time the Applicable
Fee Rate is set at Level I, II, III, IV or V Status, 0.125% per annum, and (ii)
at any time the Applicable Fee Rate is set at Level VI Status, 0.25% per annum.
"Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors.
"Article" means an article of this Agreement unless another document
is specifically referenced.
"Authorized Officer" means any of the President, Executive Vice
President and Chief Operating Officer, Treasurer, any Group Vice President or
any Vice President of the Borrower, acting singly.
"Borrower" means DPL Inc., an Ohio corporation, and its successors and
assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing, payment or
rate selection of Eurodollar Advances, a day (other than a Saturday or Sunday)
on which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities and on which dealings
in United States dollars are carried on in the London interbank market and (ii)
for all other purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago for the conduct of substantially all of their
commercial lending activities.
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"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Change in Control" means (i) the acquisition by any Person, or two or
more Persons acting in concert, of beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of 20% or more of the outstanding shares of voting stock
of the Borrower or (ii) the Borrower shall cease to own, free and clear of all
Liens and other encumbrances and on a fully diluted basis, 100% of the
outstanding shares of all classes of stock of Dayton Power ordinarily having the
right to vote at an election of directors, or any contingency shall occur that
causes any class of stock of Dayton Power, the shares of which are not owned by
the Borrower, to have the right to vote at an election of directors.
"Code" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans not exceeding the amount set forth opposite such Lender's name on
Schedule I hereto or as set forth in any Notice of Assignment relating to any
assignment that has become effective pursuant to Section 12.3.2, as such amount
may be modified from time to time pursuant to the terms hereof.
"Consolidated Debt" means at any time the Debt of the Borrower and its
Subsidiaries calculated on a consolidated basis as of such time.
"Consolidated EBITDA" means Consolidated Net Income plus, to the
extent deducted from revenues in determining Consolidated Net Income, (i)
Consolidated Interest Expense, (ii) expense for income taxes paid or accrued,
(iii) depreciation, (iv) amortization and (v) extraordinary losses incurred
other than in the ordinary course of business, minus, to the extent included in
Consolidated Net Income, extraordinary gains realized other than in the ordinary
course of business, all calculated for the Borrower and its Subsidiaries on a
consolidated basis.
"Consolidated Interest Expense" means, with reference to any period,
the interest expense of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period.
"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period.
"Consolidated Net Worth" means at any time the sum of consolidated
stockholders' equity of the Borrower and its Subsidiaries calculated on a
consolidated basis as of such time plus the aggregate outstanding amount, as of
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such time, of the 8 1/4% Capital Securities
34
issued on or about August 31, 2001 by DPL Capital Trust II, which Capital
Securities are guaranteed in whole or in part from time to time by the Borrower.
"Consolidated Tangible Assets" means at any time the consolidated
total assets of the Borrower and its Subsidiaries calculated on a consolidated
basis as of such time, but excluding therefrom goodwill, patents, patent
applications, permits, trademarks, trade names, copyrights, licenses,
franchises, experimental expense, organizational expense, unamortized debt
discount and expense, the excess of cost of shares acquired over book value of
related assets and such other assets as are properly classified as "intangible
assets" in accordance with Agreement Accounting Principles.
"Consolidated Total Capitalization" means at any time the sum of
Consolidated Debt and Consolidated Net Worth, each calculated at such time.
"Contingent Obligation" of a Person means any agreement, undertaking
or arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership,
provided, however, that the term "Contingent Obligations" shall not include the
endorsement of instruments for collection or deposit in the ordinary course of
business.
"Contract" means any indenture, agreement (other than this Agreement),
other contractual restriction, lease, instrument (other than Notes), certificate
of incorporation or charter, or by-law.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Dayton Power" means The Dayton Power and Light Company.
"Debt" of a Person means such Person's (i) obligations for borrowed
money, (ii) obligations representing the deferred purchase price of Property or
services (other than accounts payable arising in the ordinary course of such
Person's business payable on terms customary in the trade and accrued expenses
arising in the ordinary course of business), (iii) obligations, whether or not
assumed, secured by Liens or payable out of the proceeds or production from
Property now or hereafter owned or acquired by such Person, (iv) obligations
which are evidenced by bonds, debentures, notes, acceptances, or other
instruments, (v) obligations of such Person to purchase securities or other
Property arising out of or in connection with the sale of the
35
same or substantially similar securities or Property, (vi) Capitalized Lease
Obligations, (vii) non-contingent obligations to reimburse any other Person in
respect of amounts paid under a Letter of Credit or similar instrument to the
extent that such reimbursement obligations remain outstanding after they become
non-contingent, (viii) all Debt of others constituting a Contingent Obligation
of such Person, and (ix) any other obligation for borrowed money or other
financial accommodation which in accordance with Agreement Accounting Principles
would be shown as a liability on the consolidated balance sheet of such Person.
"Default" means an event described in Article VII.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for
the relevant Interest Period, the applicable British Bankers' Association
Interest Settlement Rate for deposits in U.S. Dollars appearing on Reuters
Screen FRBD as of 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, and having a maturity equal to such Interest
Period, provided that, (i) if Reuters Screen FRBD is not available to the
Administrative Agent for any reason, the applicable Eurodollar Base Rate for the
relevant Interest Period shall instead be the applicable British Bankers'
Association Interest Settlement Rate for deposits in U.S. Dollars as reported by
any other generally recognized financial information service as of 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period,
and having a maturity equal to such Interest Period, and (ii) if no such British
Bankers' Association Interest Settlement Rate is available to the Administrative
Agent, the applicable Eurodollar Base Rate for the relevant Interest Period
shall instead be the rate determined by the Administrative Agent to be the rate
at which Bank One, NA or one of its Affiliate banks offers to place deposits in
U.S. Dollars with first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period, in the approximate amount of Bank One, NA's relevant
Eurodollar Advance and having a maturity equal to such Interest Period.
"Eurodollar Loan" means a Loan which, except as otherwise provided in
Section 2.11, bears interest at the applicable Eurodollar Rate.
36
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(ii) the Applicable Margin. The Eurodollar Rate shall be rounded to the next
higher multiple of 1/16 of 1% if the rate is not such a multiple.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Administrative Agent, taxes imposed on its overall
net income, and franchise taxes imposed on it, by (i) the United States of
America or any political subdivision thereof or the jurisdiction or any
political subdivision thereof under the laws of which such Lender or the
Administrative Agent is incorporated or organized or (ii) the jurisdiction or
any political subdivision thereof in which the Administrative Agent's or such
Lender's principal executive office or such Lender's applicable Lending
Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Facility Fee" is defined in Section 2.5(i).
"Facility Termination Date" means December 19, 2002 or any earlier
date on which the Aggregate Commitment is reduced to zero or otherwise
terminated pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an interest rate
per annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Financial Contract" of a Person means (i) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, or (ii) any agreements, devices or
arrangements providing for payments related to fluctuations of interest rates,
exchange rates, forward rates or commodity prices, including, but not limited
to, interest rate swap or exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options.
"Fixed Charge Coverage Ratio" means, with reference to any four fiscal
quarter period, the ratio of (i) Consolidated EBITDA to (ii) the sum of interest
expense paid in cash plus income taxes paid in cash plus dividends on common and
preferred stock paid in cash plus transmission and distribution maintenance
capital expenditures plus current maturities of long-term debt, in each case
determined in accordance with Agreement Accounting Principles for such period,
except that current maturities of long-term debt shall be determined as of the
end of such
37
period and transmission and distribution maintenance capital expenditures shall
be determined by the Borrower in good faith consistent with its prior practice.
"Floating Rate" means, for any day, a rate per annum equal to the
Alternate Base Rate for such day, in each case changing when and as the
Alternate Base Rate changes, plus the Applicable Margin.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan which, except as otherwise provided
in Section 2.11, bears interest at the Floating Rate.
"Interest Period" means, with respect to a Eurodollar Advance, a
period of one, two, three or six months commencing on a Business Day selected by
the Borrower pursuant to this Agreement. Such Interest Period shall end on the
day which corresponds numerically to such date one, two, three or six months
thereafter, provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Interest Period shall end on the last Business Day of such next, second, third
or sixth succeeding month. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such
Person; and any deposit accounts and certificate of deposit owned by such
Person.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the
Administrative Agent, any office, branch, subsidiary or affiliate of such Lender
or the Administrative Agent.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
38
"Loan" means, with respect to a Lender, such Lender's loan made
pursuant to Article II (or any conversion or continuation thereof).
"Loan Documents" means this Agreement and any Notes issued pursuant to
Section 2.13.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents, or
(iii) the validity or enforceability of any of the Loan Documents or the rights
or remedies of the Administrative Agent or the Lenders thereunder.
"Material Debt" is defined in Section 7.5.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Non-Utility Subsidiary" means any Subsidiary of the Borrower other
than Dayton Power or a Subsidiary thereof.
"Note" means any promissory note issued at the request of a Lender
pursuant to Section 2.13 in the form of Exhibit E.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the Lenders
or to any Lender, the Administrative Agent or any indemnified party arising
under the Loan Documents.
"Other Taxes" is defined in Section 3.5(ii).
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last Business Day of each calendar quarter.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted Acquisition" means any Acquisition made by the Borrower or
any of its Subsidiaries, provided that (i) as of the date of the consummation of
such Acquisition, no Default or Unmatured Default shall have occurred and be
continuing or would result from such Acquisition, and the representation and
warranty contained in Section 5.11 shall be true both
39
before and after giving effect to such Acquisition, (ii) such Acquisition is
consummated on a non-hostile basis pursuant to a negotiated acquisition
agreement approved by the board of directors or other applicable governing body
of the seller or entity to be acquired, and no material challenge to such
Acquisition shall be pending or threatened by any shareholder or director of the
seller or entity to be acquired, and (iii) as of the date of the consummation of
such Acquisition, all approvals required in connection therewith shall have been
obtained.
"Permitted Restrictive Covenant" means (i) any covenant or restriction
contained in this Agreement, (ii) any covenant or restriction contained in the
Articles of Incorporation of Dayton Power as in effect on the date hereof, or
(iii) any covenant or restriction in any Contract that is less burdensome than
any covenant or restriction contained in this Agreement.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code as to which the Borrower or any member of the Controlled Group may
have any liability.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Prime Rate" means a rate per annum equal to the prime rate of
interest announced from time to time by Bank One, NA or its parent (which is not
necessarily the lowest rate charged to any customer), changing when and as said
prime rate changes.
"Pro Rata Share" means, for each Lender, the ratio of such Lender's
Commitment to the Aggregate Commitment.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Purchasers" is defined in Section 12.3.1.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
40
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Reports" is defined in Section 9.5.
"Required Lenders" means Lenders in the aggregate having at least
66-beta% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66-beta% of the aggregate
unpaid principal amount of the outstanding Advances.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Subsidiary" of a Person means (i) any corporation more than 50% of
the outstanding securities having ordinary voting power of which shall at the
time be owned or controlled, directly or indirectly, by such Person or by one or
more of its Subsidiaries or by such Person and one or more of its Subsidiaries,
or (ii) any partnership, limited liability company, association, joint venture
or similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property which (i) represents more than 10% of
the consolidated assets of the Borrower and its Subsidiaries as would be shown
in the consolidated financial statements of the Borrower and its Subsidiaries as
at the beginning of the twelve-month period ending with the month in which such
determination is made, or (ii) is responsible for more than 10% of the
41
consolidated net sales or of the consolidated net income of the Borrower and its
Subsidiaries as reflected in the financial statements referred to in clause (i)
above.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Utilization Fee" is defined in Section 2.5(ii).
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1 Commitment. From and including the date of this Agreement and prior to
----------
the Facility Termination Date, each Lender severally agrees, on the terms and
conditions set forth in this Agreement, to make Loans to the Borrower from time
to time in amounts not to exceed in the aggregate at any one time outstanding
the amount of its Commitment. Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow at any time prior to the Facility
Termination Date. The Commitments to lend hereunder shall expire on the Facility
Termination Date.
42
2.2 Required Payments; Termination. Any outstanding Advances and all other
------------------------------
unpaid Obligations shall be paid in full by the Borrower on the Facility
Termination Date.
2.3 Ratable Loans. Each Advance hereunder shall consist of Loans made from
-------------
the several Lenders ratably in proportion to the ratio that their respective
Commitments bear to the Aggregate Commitment.
2.4 Types of Advances. The Advances may be Floating Rate Advances or
-----------------
Eurodollar Advances, or a combination thereof, selected by the Borrower in
accordance with Sections 2.8 and 2.9.
2.5 Facility Fee; Utilization Fee; Reductions in Aggregate Commitment. (i)
-----------------------------------------------------------------
The Borrower agrees to pay to the Administrative Agent for the account of each
Lender a facility fee (the "Facility Fee") at a per annum rate equal to the
Applicable Fee Rate on such Lender's Commitment (without regard to usage) from
the date hereof to and including the Facility Termination Date, payable in
arrears on each Payment Date hereafter and on the Facility Termination Date.
(ii) The Borrower hereby agrees to pay to the Administrative Agent for the
ratable account of the Lenders a utilization fee (the "Utilization Fee") for
each day on which the aggregate outstanding principal amount of the Loans
exceeds 33 1/3% of the then-current Aggregate Commitment. The Utilization Fee
shall be at a rate equal to the Applicable Utilization Fee Rate on the aggregate
outstanding principal amount of the Loans, shall be distributed to each Lender
pro rata according to such Lender's Pro Rata Share of the aggregate outstanding
principal amount of the Loans, and shall be payable in arrears on each Payment
Date hereafter and on the Facility Termination Date (or such earlier date on
which the Aggregate Commitment shall terminate or be cancelled and all of the
Loans shall be repaid) for any period then ending for which such fee shall not
have been theretofore paid.
(iii) The Borrower may permanently reduce the Aggregate Commitment in
whole, or in part ratably among the Lenders in integral multiples of
$10,000,000, upon at least three (3) Business Days' written notice to the
Administrative Agent, which notice shall specify the amount of any such
reduction, provided, however, that the amount of the Aggregate Commitment may
not be reduced below the aggregate principal amount of the outstanding Advances.
All accrued Facility Fees shall be payable on the effective date of any
termination of the obligations of the Lenders to make Loans hereunder.
2.6 Minimum Amount of Each Advance. Each Eurodollar Advance shall be in the
------------------------------
minimum amount of $5,000,000 (and in multiples of $1,000,000 if in excess
thereof), and each Floating Rate Advance shall be in the minimum amount of
$5,000,000 (and in multiples of $1,000,000 if in excess thereof), provided,
however, that any Floating Rate Advance may be in the amount of the unused
Aggregate Commitment.
2.7 Optional Principal Payments. The Borrower may from time to time pay,
---------------------------
without penalty or premium, all outstanding Floating Rate Advances, or, in a
minimum aggregate amount
43
of $5,000,000 or any integral multiple of $100,000 in excess thereof, any
portion of the outstanding Floating Rate Advances upon one (1) Business Day's
prior written notice to the Administrative Agent. The Borrower may from time to
time pay, subject to the payment of any funding indemnification amounts required
by Section 3.4 but without penalty or premium, all outstanding Eurodollar
Advances, or, in a minimum aggregate amount of $5,000,000 or any integral
multiple of $100,000 in excess thereof, any portion of the outstanding
Eurodollar Advances upon three (3) Business Days' prior notice to the
Administrative Agent.
2.8 Method of Selecting Types and Interest Periods for New Advances. The
---------------------------------------------------------------
Borrower shall select the Type of Advance and, in the case of each Eurodollar
Advance, the Interest Period applicable thereto from time to time. The Borrower
shall give the Administrative Agent irrevocable notice (a "Borrowing Notice")
not later than 10:00 a.m. (Chicago time) at least one (1) Business Day before
the Borrowing Date of each Floating Rate Advance and three (3) Business Days
before the Borrowing Date for each Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest Period applicable
thereto.
Not later than noon (Chicago time) on each Borrowing Date, each Lender shall
make available its Loan or Loans in funds immediately available in Chicago to
the Administrative Agent at its address specified pursuant to Article XIII. The
Administrative Agent will make the funds so received from the Lenders available
to the Borrower at the Administrative Agent's aforesaid address.
44
2.9 Conversion and Continuation of Outstanding Advances. Floating Rate
---------------------------------------------------
Advances shall continue as Floating Rate Advances unless and until such Floating
Rate Advances are converted into Eurodollar Advances pursuant to this Section
2.9 or are repaid in accordance with Section 2.7. Each Eurodollar Advance shall
continue as a Eurodollar Advance until the end of the then applicable Interest
Period therefor, at which time such Eurodollar Advance shall be automatically
converted into a Floating Rate Advance unless (x) such Eurodollar Advance is or
was repaid in accordance with Section 2.7 or (y) the Borrower shall have given
the Administrative Agent a Conversion/Continuation Notice (as defined below)
requesting that, at the end of such Interest Period, such Eurodollar Advance
continue as a Eurodollar Advance for the same or another Interest Period.
Subject to the terms of Section 2.6, the Borrower may elect from time to time to
convert all or any part of a Floating Rate Advance into a Eurodollar Advance.
The Borrower shall give the Administrative Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of a Floating Rate Advance
into a Eurodollar Advance or continuation of a Eurodollar Advance not later than
10:00 a.m. (Chicago time) at least three Business Days prior to the date of the
requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such conversion
or continuation,
(ii) the aggregate amount and Type of the Advance which is to be converted
or continued, and
(iii) the amount of such Advance which is to be converted into or continued
as a Eurodollar Advance and the duration of the Interest Period
applicable thereto.
2.10 Changes in Interest Rate, etc. Each Floating Rate Advance shall bear
-----------------------------
interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is automatically converted from a
Eurodollar Advance into a Floating Rate Advance pursuant to Section 2.9, to but
excluding the date it is paid or is converted into a Eurodollar Advance pursuant
to Section 2.9 hereof, at a rate per annum equal to the Floating Rate for such
day. Changes in the rate of interest on that portion of any Advance maintained
as a Floating Rate Advance will take effect simultaneously with each change in
the Alternate Base Rate. Each Eurodollar Advance shall bear interest on the
outstanding principal amount thereof from and including the first day of the
Interest Period applicable thereto to (but not including) the last day of such
Interest Period at the Eurodollar Rate determined by the Administrative Agent as
applicable to such Eurodollar Advance based upon the Borrower's selections under
Sections 2.8 and 2.9 and otherwise in accordance with the terms hereof. No
Interest Period may end after the Facility Termination Date.
2.11 Rate Applicable After Default. Notwithstanding anything to the
-----------------------------
contrary contained in Section 2.8 or 2.9, during the continuance of a Default or
Unmatured Default the Required Lenders may, at their option, by notice to the
Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that no Advance may be
45
made as, converted into or continued as a Eurodollar Advance. During the
continuance of a Default the Required Lenders may, at their option, by notice to
the Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that each Advance shall bear
interest at a rate per annum equal to the Floating Rate in effect from time to
time plus 2% per annum; provided, that, during the continuance of a Default
----
under Section 7.6 or 7.7, the interest rate set forth above shall be applicable
without any election or action on the part of the Administrative Agent or any
Lender; provided further, that the Applicable Margin shall be deemed to be set
at Level VI Status when determining such Floating Rate.
2.12 Method of Payment. All payments of the Obligations hereunder shall be
-----------------
made, without setoff, deduction, or counterclaim, in immediately available funds
to the Administrative Agent at the Administrative Agent's address specified
pursuant to Article XIII, or at any other Lending Installation of the
Administrative Agent specified in writing by the Administrative Agent to the
Borrower, by noon (local time) on the date when due and shall be applied ratably
by the Administrative Agent among the Lenders. Each payment delivered to the
Administrative Agent for the account of any Lender shall be delivered promptly
by the Administrative Agent to such Lender in the same type of funds that the
Administrative Agent received at its address specified pursuant to Article XIII
or at any Lending Installation specified in a notice received by the
Administrative Agent from such Lender. The Administrative Agent is hereby
authorized to charge the account of the Borrower maintained with Bank One, NA
for each payment of principal, interest and fees as it becomes due hereunder.
2.13 Noteless Agreement; Evidence of Indebtedness. (i) Each Lender shall
--------------------------------------------
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder.
(ii) The Administrative Agent shall also maintain accounts in which it will
record (a) the amount of each Loan made hereunder, the Type thereof and the
Interest Period with respect thereto, (b) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (c) the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender's share thereof.
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided, however, that the failure
of the Administrative Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Obligations in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by a promissory
note (a "Note"). In such event, the Borrower shall prepare, execute and deliver
to such Lender a Note payable to the order of such Lender in the form of Exhibit
E. Thereafter, the Loans evidenced by such Note and interest thereon shall at
all times (including after any assignment pursuant to
46
Section 12.3) be represented by one or more Notes payable to the order of the
payee named therein or any assignee pursuant to Section 12.3, except to the
extent that any such Lender or assignee subsequently returns any such Note for
cancellation and requests that such Loans once again be evidenced as described
in paragraphs (i) and (ii) above.
2.14 Telephonic Notices. The Borrower hereby authorizes the Lenders and the
------------------
Administrative Agent to extend, convert or continue Advances, effect selections
of Types of Advances and to transfer funds based on telephonic notices made by
any person or persons the Administrative Agent or any Lender in good faith
believes to be acting on behalf of the Borrower, it being understood that the
foregoing authorization is specifically intended to allow Borrowing Notices and
Conversion/Continuation Notices to be given telephonically. The Borrower agrees
to deliver promptly to the Administrative Agent a written confirmation, if such
confirmation is requested by the Administrative Agent or any Lender, of each
telephonic notice signed by an Authorized Officer. If the written confirmation
differs in any material respect from the action taken by the Administrative
Agent and the Lenders, the records of the Administrative Agent and the Lenders
shall govern absent manifest error.
2.15 Interest Payment Dates; Interest and Fee Basis. Interest accrued on
----------------------------------------------
each Floating Rate Advance shall be payable on each Payment Date, commencing
with the first such date to occur after the date hereof, on any date on which
such Floating Rate Advance is prepaid, whether due to acceleration or otherwise,
and at maturity. Interest accrued on that portion of the outstanding principal
amount of any Floating Rate Advance converted into a Eurodollar Advance on a day
other than a Payment Date shall be payable on the date of conversion. Interest
accrued on each Eurodollar Advance shall be payable on the last day of its
applicable Interest Period, on any date on which the Eurodollar Advance is
prepaid, whether by acceleration or otherwise, and at maturity. Interest accrued
on each Eurodollar Advance having an Interest Period longer than three months
shall also be payable on the last day of each three-month interval during such
Interest Period. Interest on Eurodollar Advances and Facility Fees and
Utilization Fees shall be calculated for actual days elapsed on the basis of a
360-day year, and interest on Floating Rate Advances shall be calculated for
actual days elapsed on the basis of a 365/366-day year. Interest shall be
payable for the day an Advance is made but not for the day of any payment on the
amount paid if payment is received prior to noon (local time) at the place of
payment. If any payment of principal of or interest on an Advance, any fees or
any other amounts payable to the Administrative Agent or any Lender hereunder
shall become due on a day which is not a Business Day, such payment shall be
made on the next succeeding Business Day and, in the case of a principal
payment, such extension of time shall be included in computing interest in
connection with such payment.
2.16 Notification of Advances, Interest Rates, Prepayments and Commitment
--------------------------------------------------------------------
Reductions. Promptly after receipt thereof, the Administrative Agent will notify
----------
each Lender of the contents of each Aggregate Commitment reduction notice,
Borrowing Notice, Conversion/Continuation Notice, and repayment notice received
by it hereunder. The Administrative Agent will notify each Lender of the
interest rate applicable to each Eurodollar Advance promptly upon determination
of such interest rate and will give each Lender prompt notice of each change in
the Alternate Base Rate.
47
2.17 Lending Installations. Each Lender may book its Loans at any Lending
---------------------
Installation selected by such Lender and may change its Lending Installation
from time to time. All terms of this Agreement shall apply to any such Lending
Installation and the Loans and any Notes issued hereunder shall be deemed held
by each Lender for the benefit of any such Lending Installation. Each Lender
may, by written notice to the Administrative Agent and the Borrower in
accordance with Article XIII, designate replacement or additional Lending
Installations through which Loans will be made by it and for whose account Loan
payments are to be made.
2.18 Non-Receipt of Funds by the Administrative Agent. Unless the Borrower
------------------------------------------------
or a Lender, as the case may be, notifies the Administrative Agent prior to the
date on which it is scheduled to make payment to the Administrative Agent of (i)
in the case of a Lender, the proceeds of a Loan or (ii) in the case of the
Borrower, a payment of principal, interest or fees to the Administrative Agent
for the account of the Lenders, that it does not intend to make such payment,
the Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Administrative Agent, the recipient of such payment shall, on
demand by the Administrative Agent, repay to the Administrative Agent the amount
so made available together with interest thereon in respect of each day during
the period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three days and,
thereafter, the interest rate applicable to the relevant Loan or (y) in the case
of payment by the Borrower, the interest rate applicable to the relevant Loan.
2.19 Replacement of Lender. If the Borrower is required pursuant to Section
---------------------
3.1, 3.2 or 3.5 to make any additional payment to any Lender or if any Lender's
obligation to make or continue, or to convert Floating Rate Advances into,
Eurodollar Advances shall be suspended pursuant to Section 3.3 (any Lender so
affected an "Affected Lender"), the Borrower may elect, if such amounts continue
to be charged or such suspension is still effective, to replace such Affected
Lender as a Lender party to this Agreement, provided that no Default or
Unmatured Default shall have occurred and be continuing at the time of such
replacement, and provided further that, concurrently with such replacement, (i)
another bank or other entity which is reasonably satisfactory to the Borrower
and the Administrative Agent shall agree, as of such date, to purchase for cash
the Advances and other Obligations due to the Affected Lender pursuant to an
assignment substantially in the form of Exhibit C and to become a Lender for all
purposes under this Agreement and to assume all obligations of the Affected
Lender to be terminated as of such date and to comply with the requirements of
Section 12.3 applicable to assignments, and (ii) the Borrower shall pay to such
Affected Lender in same day funds on the day of such replacement all interest,
fees and other amounts then accrued but unpaid to such Affected Lender by the
Borrower hereunder to and including the date of termination, including without
limitation payments due to such Affected Lender under Sections 3.1, 3.2 and 3.5.
48
ARTICLE III
YIELD PROTECTION; TAXES
3.1 Yield Protection. If, on or after the date of this Agreement, the
----------------
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in any such law, rule, regulation, policy, guideline or directive or in
the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(i) subjects any Lender or any applicable Lending Installation to any
Taxes, or changes the basis of taxation of payments (other than with
respect to Excluded Taxes) to any Lender in respect of its Eurodollar
Loans, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by,
any Lender or any applicable Lending Installation (other than reserves
and assessments taken into account in determining the interest rate
applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of which is to increase the
cost to any Lender or any applicable Lending Installation of making,
funding or maintaining its Eurodollar Loans or reduces any amount
receivable by any Lender or any applicable Lending Installation in
connection with its Eurodollar Loans, or requires any Lender or any
applicable Lending Installation to make any payment calculated by
reference to the amount of Eurodollar Loans held or interest received
by it, by an amount deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its Eurodollar Loans or
Commitment or to reduce the return received by such Lender or applicable Lending
Installation in connection with such Eurodollar Loans or Commitment, then,
within 15 days of demand by such Lender, the Borrower shall pay such Lender such
additional amount or amounts as will compensate such Lender for such increased
cost or reduction in amount received.
3.2 Changes in Capital Adequacy Regulations. If a Lender determines the
---------------------------------------
amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a Change (as defined below), then, within 15 days of
demand by such Lender, the Borrower shall pay such Lender the amount necessary
to compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender determines is attributable to this
Agreement, its Loans or its Commitment to make Loans hereunder (after taking
into account such Lender's
49
policies as to capital adequacy). "Change" means (i) any change after the date
of this Agreement in the Risk-Based Capital Guidelines (as defined below) or
(ii) any adoption of, change in, or change in the interpretation or
administration of any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive (whether or not
having the force of law) after the date of this Agreement which affects the
amount of capital required or expected to be maintained by any Lender or any
Lending Installation or any corporation controlling any Lender. "Risk-Based
Capital Guidelines" means (i) the risk-based capital guidelines in effect in the
United States on the date of this Agreement, including transition rules, and
(ii) the corresponding capital regulations promulgated by regulatory authorities
outside the United States implementing the July 1988 report of the Basle
Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
3.3 Availability of Types of Advances. If any Lender determines that the
---------------------------------
making or maintenance of its Eurodollar Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that (i) deposits
of a type and maturity appropriate to match fund Eurodollar Advances are not
available or (ii) the interest rate applicable to Eurodollar Advances does not
accurately reflect the cost of making or maintaining Eurodollar Advances, then
for so long as any such circumstances exist the Administrative Agent shall
suspend the availability of Eurodollar Advances and require any affected
Eurodollar Advances to be repaid or converted to Floating Rate Advances, subject
to the payment of any funding indemnification amounts required by Section 3.4.
3.4 Funding Indemnification. If any payment of a Eurodollar Advance occurs
-----------------------
on a date which is not the last day of the applicable Interest Period, whether
because of acceleration, prepayment or otherwise (including, without limitation,
prepayments required by Section 3.3), or a Eurodollar Advance is not made on the
date specified by the Borrower for any reason other than default by the Lenders,
the Borrower will indemnify each Lender for any reasonable loss or cost incurred
by it resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain such Eurodollar
Advance.
3.5 Taxes. (i) All payments by the Borrower to or for the account of any
-----
Lender or the Administrative Agent hereunder or under any Note shall be made
free and clear of and without deduction for any and all Taxes. If the Borrower
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder to any Lender or the Administrative Agent, (a) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
3.5) such Lender or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(b) the Borrower shall make such deductions, (c) the Borrower shall pay the full
amount deducted to the relevant authority in accordance with applicable law and
(d) the Borrower shall furnish to the Administrative Agent the original copy of
a receipt evidencing payment thereof within 30 days after such payment is made.
50
(ii) In addition, the Borrower hereby agrees to pay any present or future
stamp or documentary taxes and any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under any Note or
from the execution or delivery of, or otherwise with respect to, this Agreement
or any Note ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Administrative Agent and
each Lender for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed on amounts payable under this
Section 3.5) paid by the Administrative Agent or such Lender and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. Payments due under this indemnification shall be made within 30 days of
the date the Administrative Agent or such Lender makes demand therefor pursuant
to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "Non-U.S. Lender") agrees that it
will, not less than ten Business Days after the date of this Agreement, (i)
deliver to each of the Borrower and the Administrative Agent two duly completed
copies of United States Internal Revenue Service W-8BEN or W-8ECI, certifying in
either case that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes, and (ii) deliver to each of the Borrower and the Administrative Agent a
United States Internal Revenue Form W-8 or W-9, as the case may be, and certify
that it is entitled to an exemption from United States backup withholding tax.
Each Non-U.S. Lender further undertakes to deliver to each of the Borrower and
the Administrative Agent (x) renewals or additional copies of such form (or any
successor form) on or before the date that such form expires or becomes
obsolete, and (y) after the occurrence of any event requiring a change in the
most recent forms so delivered by it, such additional forms or amendments
thereto as may be reasonably requested by the Borrower or the Administrative
Agent. All forms or amendments described in the preceding sentence shall certify
that such Lender is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes, unless an
event (including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form or amendment with
respect to it and such Lender advises the Borrower and the Administrative Agent
that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to provide the
Borrower with an appropriate form pursuant to clause (iv), above (unless such
failure is due to a change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to indemnification under
this Section 3.5 with respect to Taxes imposed by the United States or any
political subdivision thereof; provided that, should a Non-U.S. Lender which is
otherwise exempt from or subject to a reduced rate of withholding tax become
subject to Taxes because of its failure to deliver a form
51
required under clause (iv), above, the Borrower shall take such steps as such
Non-U.S. Lender shall reasonably request to assist such Non-U.S. Lender to
recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate. For any period during which any Lender has
failed to provide the Borrower with such documentation, such Lender shall not be
entitled to indemnification under this Section 3.5 with respect to withholding
tax to the extent that such exemption or reduction would otherwise have been
available.
(vii) If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any political subdivision
thereof asserts a claim that the Administrative Agent did not properly withhold
tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered or properly completed, because such Lender
failed to notify the Administrative Agent of a change in circumstances which
rendered its exemption from withholding ineffective, or for any other reason),
such Lender shall indemnify the Administrative Agent fully for all amounts paid,
directly or indirectly, by the Administrative Agent as tax, withholding
therefor, or otherwise, including penalties and interest, and including taxes
imposed by any jurisdiction on amounts payable to the Administrative Agent under
this subsection, together with all costs and expenses related thereto (including
attorneys fees and time charges of attorneys for the Administrative Agent, which
attorneys may be employees of the Administrative Agent). The obligations of the
Lenders under this Section 3.5(vii) shall survive the payment of the Obligations
and termination of this Agreement.
(viii) If the Borrower is required to pay additional amounts to any Lender
or the Administrative Agent pursuant to this Section 3.5, then such Lender shall
use reasonable efforts (consistent with legal and regulatory restrictions) to
change the jurisdiction of its Lending Installation or take other appropriate
action so as to eliminate any such additional payment by the Borrower which may
thereafter accrue, if such change or other action in the judgment of such Lender
is not otherwise disadvantageous to such Lender.
3.6 Lender Statements; Survival of Indemnity. To the extent reasonably
----------------------------------------
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the Borrower to such
Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurodollar Advances under Section 3.3, so long as such designation is not, in
the judgment of such Lender, disadvantageous to such Lender. Each Lender shall
use reasonable efforts to give prompt written notice to the Borrower upon
becoming aware of the existence of any circumstances that would give rise to a
claim for compensation by such Lender under Section 3.1, 3.2 or 3.5 or that
would result in the unavailability of Eurodollar Advances under Section 3.3, but
the failure to give such notice shall not affect any of such Lender's rights
hereunder. In determining the amount of compensation under Section 3.1, 3.2 or
3.5, each Lender shall act in good faith, and any demand for compensation under
Section 3.1, 3.2 or 3.5
52
shall be limited to increased costs, reductions in amounts received and reduced
returns incurred within 180 days of the date of such demand. Each Lender shall
deliver a written statement of such Lender to the Borrower (with a copy to the
Administrative Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4
or 3.5. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be final,
conclusive and binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a
Eurodollar Loan shall be calculated as though each Lender funded its Eurodollar
Loan through the purchase of a deposit of the type and maturity corresponding to
the deposit used as a reference in determining the Eurodollar Rate applicable to
such Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement of any Lender shall be
payable on demand after receipt by the Borrower of such written statement. The
obligations of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive
payment of the Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
53
4.1 Initial Advance. The Lenders shall not be required to make the initial
---------------
Advance hereunder unless the Borrower has furnished to the Administrative Agent
with sufficient copies for the Lenders:
(i) Copies of the articles of incorporation of the Borrower, together with
all amendments, and a certificate of good standing, each certified by
the appropriate governmental officer in its jurisdiction of
incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the
Borrower, of its Code of Regulations and of its Board of Directors'
resolutions and of resolutions or actions of any other body
authorizing the execution of the Loan Documents to which the Borrower
is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant
Secretary of the Borrower, which shall identify by name and title and
bear the signatures of the Authorized Officers and any other officers
of the Borrower authorized to sign the Loan Documents to which the
Borrower is a party, upon which certificate the Administrative Agent
and the Lenders shall be entitled to rely until informed of any change
in writing by the Borrower.
(iv) A certificate, signed by an Authorized Officer of the Borrower,
stating that on the initial Borrowing Date no Default or Unmatured
Default has occurred and is continuing.
(v) A written opinion of the Borrower's general counsel addressed to the
Lenders in substantially the form of Exhibit A.
(vi) Any Notes requested by a Lender pursuant to Section 2.13 payable to
the order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form of
Exhibit D, addressed to the Administrative Agent and signed by an
Authorized Officer, together with such other related money transfer
authorizations as the Administrative Agent may have reasonably
requested.
(viii) Evidence of the termination of the Long-Term Revolving Credit
Agreement, dated as of December 30, 1998, as amended, by and among the
Borrower, the banks party thereto, and Bank One, NA as administrative
agent thereunder, the termination of the Short-Term Revolving Credit
Agreement, dated as of December 30, 1998, as amended, by and among the
Borrower, the banks party thereto, and Bank One, NA, as administrative
agent thereunder and, in each case, evidence of the repayment in full
of all Debt and other obligations thereunder.
(ix) Such other documents as any Lender or its counsel may have reasonably
requested.
54
4.2 Each Advance. The Lenders shall not be required to make any Advance
------------
unless on the applicable Borrowing Date:
(i) There exists no Default or Unmatured Default.
(i) The representations and warranties contained in Article V are true and
correct as of such Borrowing Date except to the extent any such
representation or warranty is stated to relate solely to an earlier
date, in which case such representation or warranty shall have been
true and correct on and as of such earlier date.
Each Borrowing Notice with respect to each such Advance shall
constitute a representation and warranty by the Borrower that the conditions
contained in Sections 4.2(i) and (ii) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1 Existence and Standing. The Borrower is a corporation organized under
----------------------
the laws of the State of Ohio. Each of the Borrower's Subsidiaries is a
corporation, partnership or limited liability company duly and properly
incorporated or organized, as the case may be under the laws of its jurisdiction
of incorporation or organization. Each of the Borrower and its Subsidiaries is
validly existing and (to the extent such concept applies to such entity) in good
standing under the laws of its jurisdiction of incorporation or organization and
has all requisite authority to conduct its business in each jurisdiction in
which its business is conducted, except to the extent that the failure to have
such authority could not reasonably be expected to have a Material Adverse
Effect.
5.2 Authorization and Validity. The Borrower has the corporate power and
--------------------------
authority and legal right to execute and deliver the Loan Documents and to
perform its obligations thereunder. The execution and delivery by the Borrower
of the Loan Documents and the performance of its obligations thereunder have
been duly authorized by proper corporate proceedings, and the Loan Documents to
which the Borrower is a party constitute legal, valid and binding obligations of
the Borrower enforceable against the Borrower in accordance with their terms,
except as enforceability may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally.
5.3 No Conflict; Government Consent. Neither the execution and delivery by
-------------------------------
the Borrower of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
(i) any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on the Borrower or any of
55
its Subsidiaries or (ii) the Borrower's or any Subsidiary's articles or
certificate of incorporation, partnership agreement, certificate of partnership,
articles or certificate of organization, code of regulations, by-laws, or
operating or other management agreement, as the case may be, or (iii) the
provisions of any indenture, instrument or agreement to which the Borrower or
any of its Subsidiaries is a party or is subject, or by which it, or its
Property, is bound, or conflict with or constitute a default thereunder, or
result in, or require, the creation or imposition of any Lien in, of or on the
Property of the Borrower or a Subsidiary pursuant to the terms of any such
indenture, instrument or agreement. No order, consent, adjudication, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, or other action in respect of any governmental or public
body or authority, or any subdivision thereof, which has not been obtained by
the Borrower or any of its Subsidiaries, is required to be obtained by the
Borrower or any of its Subsidiaries in connection with the execution and
delivery of the Loan Documents, the borrowings under this Agreement, the payment
and performance by the Borrower of the Obligations or the legality, validity,
binding effect or enforceability of any of the Loan Documents.
5.4 Financial Statements. The September 30, 2001 consolidated financial
--------------------
statements of the Borrower and its Subsidiaries heretofore delivered to the
Lenders were prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared and fairly
present the consolidated financial condition and operations of the Borrower and
its Subsidiaries at such date and the consolidated results of their operations
for the period then ended, subject to normal year-end adjustments.
5.5 Material Adverse Change. Since September 30, 2001, there has been no
-----------------------
change in the business, Property, condition (financial or otherwise), prospects
or results of operations of the Borrower and its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.
5.6 Taxes. The Borrower and its Subsidiaries have filed all United States
-----
federal tax returns and all other material tax returns which are required to be
filed and have paid all United States federal income taxes and all other
material taxes due pursuant to said returns or pursuant to any assessment
received by the Borrower or any of its Subsidiaries, except such taxes, if any,
as are being contested in good faith and as to which adequate reserves have been
provided in accordance with Agreement Accounting Principles. The United States
income tax returns of the Borrower and its Subsidiaries have been audited by the
Internal Revenue Service through the fiscal year ended December 31, 1996. The
charges, accruals and reserves on the books of the Borrower and its Subsidiaries
in respect of any taxes or other governmental charges are adequate.
5.7 Litigation and Contingent Obligations. Except as set forth on Schedule
-------------------------------------
5.7, there is no litigation, arbitration, governmental investigation, proceeding
or inquiry pending or, to the knowledge of any of their officers, threatened
against or affecting the Borrower or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect or which seeks to
prevent, enjoin or delay the making of any Loans. On the date of this Agreement,
other than any liability incident to any litigation, arbitration or proceeding
which could not reasonably
56
be expected to have a Material Adverse Effect, the Borrower has no material
Contingent Obligations not provided for or disclosed in the financial statements
referred to in Section 5.4.
5.8 Subsidiaries. Schedule 5.8 contains an accurate list of all
------------
Subsidiaries of the Borrower as of the date of this Agreement, setting forth
their respective jurisdictions of organization and the percentage of their
respective capital stock or other ownership interests owned by the Borrower or
other Subsidiaries. All of the issued and outstanding shares of capital stock or
other ownership interests of such Subsidiaries have been (to the extent such
concepts are relevant with respect to such ownership interests) duly authorized
and issued and are fully paid and non-assessable.
5.9 ERISA. The Unfunded Liabilities of all Single Employer Plans do not in
-----
the aggregate exceed $0. Each Plan complies in all material respects with all
applicable requirements of law and regulations, no Reportable Event has occurred
with respect to any Plan, neither the Borrower nor any other member of the
Controlled Group has withdrawn from any Plan or initiated steps to do so, and no
steps have been taken to reorganize or terminate any Plan.
5.10 Accuracy of Information. No information, exhibit or report furnished
-----------------------
by the Borrower or any of its Subsidiaries to the Administrative Agent or to any
Lender in connection with the negotiation of, or compliance with, the Loan
Documents contained, as of the date so furnished, any material misstatement of
fact or omitted to state a material fact or any fact necessary to make the
statements contained therein not misleading.
5.11 Regulation U. Margin stock (as defined in Regulation U) constitutes
------------
less than 25% of the value of those assets of the Borrower and its Subsidiaries
which are subject to any limitation on sale, pledge, or other restriction
hereunder.
5.12 Material Agreements. Neither the Borrower nor any Subsidiary is a
-------------------
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect.
5.13 Compliance With Laws. The Borrower and its Subsidiaries have complied
--------------------
in all material respects with all applicable statutes, rules, regulations,
orders and restrictions of any domestic or foreign government or any
instrumentality or agency thereof having jurisdiction over the conduct of their
respective businesses or the ownership of their respective Property.
5.14 Ownership of Properties. On the date of this Agreement, the Borrower
-----------------------
and its Subsidiaries have good title, free of all Liens other than those set
forth on Schedule 6.13 or otherwise permitted by Section 6.13, to all of the
Property and assets reflected in the Borrower's consolidated financial
statements as of September 30, 2001 provided to the Administrative Agent as
owned by the Borrower and its Subsidiaries, other than such Property or assets
sold or otherwise disposed of in the ordinary course of business since the date
of such consolidated
57
financial statements, except for such defects in title as could not reasonably
be expected, individually or in the aggregate, to have a Material Adverse
Effect.
5.15 Plan Assets; Prohibited Transactions. The Borrower is not an entity
------------------------------------
deemed to hold "plan assets" within the meaning of 29 C.F.R. ss. 2510.3-101 of
an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject
to Title I of ERISA or any plan (within the meaning of Section 4975 of the
Code), and neither the execution of this Agreement nor the making of Loans
hereunder gives rise to a prohibited transaction within the meaning of Section
406 of ERISA or Section 4975 of the Code.
5.16 Environmental Matters. In the ordinary course of its business, the
---------------------
officers of the Borrower consider the effect of Environmental Laws on the
business of the Borrower and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Borrower
due to Environmental Laws. On the basis of this consideration, the Borrower has
concluded that Environmental Laws cannot reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any Subsidiary has received
any notice to the effect that its operations are not in material compliance with
any of the requirements of applicable Environmental Laws or are the subject of
any federal or state investigation evaluating whether any remedial action is
needed to respond to a release of any toxic or hazardous waste or substance into
the environment, which non-compliance or remedial action could reasonably be
expected to have a Material Adverse Effect.
5.17 Investment Company Act. Neither the Borrower nor any Subsidiary is an
----------------------
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.18 Public Utility Holding Company Act. The Borrower is an exempt holding
----------------------------------
company, within the meaning of the Public Utility Holding Company Act of 1935,
as amended, pursuant to Section 3(a)(1) of such Act.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1 Financial Reporting. The Borrower will maintain, for itself and each
-------------------
Subsidiary, a system of accounting established and administered in accordance
with generally accepted accounting principles, and furnish to the Lenders:
(i) Within 90 days after the close of each of its fiscal years, an
unqualified (except for qualifications relating to changes in
accounting principles or practices reflecting changes in generally
accepted accounting principles and required or approved by the
Borrower's independent certified public accountants) audit report
certified by independent certified public accountants of recognized
international standing, prepared in accordance with Agreement
Accounting Principles on a consolidated
58
and consolidating basis (consolidating statements need not be
certified by such accountants) for itself and its Subsidiaries,
including balance sheets as of the end of such period, related profit
and loss and reconciliation of surplus statements, and a statement of
cash flows, accompanied by a certificate of said accountants that, in
the course of their examination necessary for their certification of
the foregoing, they have obtained no knowledge of any Default or
Unmatured Default, or if, in the opinion of such accountants, any
Default or Unmatured Default shall exist, stating the nature and
status thereof.
(ii) Within 45 days after the close of the first three quarterly periods of
each of its fiscal years, for itself and its Subsidiaries,
consolidated and consolidating unaudited balance sheets as at the
close of each such period and consolidated and consolidating profit
and loss and reconciliation of surplus statements and a statement of
cash flows for the period from the beginning of such fiscal year to
the end of such quarter, all certified by an Authorized Officer,
prepared in accordance with Agreement Accounting Principles, subject
to normal year-end adjustments.
(iii) Together with the financial statements required under Sections 6.1(i)
and (ii), a compliance certificate in substantially the form of
Exhibit B signed by an Authorized Officer showing the calculations
necessary to determine compliance with Section 6.17 of this Agreement
and stating that no Default or Unmatured Default exists, or if any
Default or Unmatured Default exists, stating the nature and status
thereof.
(iv) Within 270 days after the close of each fiscal year, a statement of
the Unfunded Liabilities of each Single Employer Plan, certified as
correct by an actuary enrolled under ERISA.
(v) As soon as possible and in any event within 10 days after the Borrower
knows that any Reportable Event has occurred with respect to any Plan,
a statement, signed by an Authorized Officer of the Borrower,
describing said Reportable Event and the action which the Borrower
proposes to take with respect thereto.
(vi) As soon as possible and in any event within 10 days after receipt by
the Borrower, a copy of (a) any notice or claim to the effect that the
Borrower or any of its Subsidiaries is or may be liable to any Person
as a result of the release by the Borrower, any of its Subsidiaries,
or any other Person of any toxic or hazardous waste or substance into
the environment, and (b) any notice alleging any violation of any
federal, state or local environmental, health or safety law or
regulation by the Borrower or any of its Subsidiaries, which, in
either case, could reasonably be expected to have a Material Adverse
Effect.
(vii) Promptly upon the furnishing thereof to the shareholders of the
Borrower, copies of all financial statements, reports and proxy
statements so furnished.
59
(viii) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular reports
which the Borrower or any of its Subsidiaries files with the
Securities and Exchange Commission.
(ix) Such other information (including non-financial information) as the
Administrative Agent or any Lender may from time to time reasonably
request.
6.2 Use of Proceeds. The Borrower will, and, when applicable, will cause
---------------
each Subsidiary to, use the proceeds of the Advances for general corporate
purposes, including, without limitation, as liquidity support for the Borrower's
commercial paper program. The Borrower will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Advances to purchase or carry any
"margin stock" (as defined in Regulation U) in any manner that would violate, or
cause any Lender to be in violation of, Regulation U.
6.3 Notice of Default. The Borrower will, and will cause each Subsidiary
-----------------
to, give prompt notice in writing to the Lenders of the occurrence of any
Default or Unmatured Default and of any other development, financial or
otherwise, which could reasonably be expected to have a Material Adverse Effect.
6.4 Conduct of Business. The Borrower will, and will cause Dayton Power to,
-------------------
do all things necessary to remain duly incorporated, validly existing and in
good standing as a domestic corporation in its jurisdiction of incorporation,
and the Borrower will, and will cause each Subsidiary to, maintain all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted, except to the extent that the failure to maintain such authority
could not reasonably be expected to have a Material Adverse Effect.
6.5 Taxes. The Borrower will, and will cause each Subsidiary to, timely
-----
file complete and correct United States federal and applicable material foreign,
state and local tax returns required by law and pay when due all federal income
taxes and all other material taxes, assessments and governmental charges and
levies upon it or its income, profits or Property, except those which are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves have been set aside in accordance with Agreement Accounting
Principles.
6.6 Insurance. The Borrower will, and will cause each Subsidiary to,
---------
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts and covering such risks as is consistent with
sound business practice (after giving effect to customary amounts of
self-insurance), and the Borrower will furnish to any Lender upon request full
information as to the insurance carried.
6.7 Compliance with Laws. The Borrower will, and will cause each Subsidiary
--------------------
to, comply in all material respects with all laws, rules, regulations, orders,
writs, judgments, injunctions, decrees or awards to which it may be subject
including, without limitation, all Environmental Laws.
60
6.8 Maintenance of Properties. The Borrower will, and will cause each
-------------------------
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its material Property in accordance with the standard of care typical in the
industries in which the Borrower and its Subsidiaries operate.
6.9 Inspection. The Borrower will, and will cause each Subsidiary to,
----------
permit or, in the case of properties, books, records or Persons not within its
immediate control, promptly take such actions as are reasonably practicable in
order to permit, representatives (whether or not officers or employees) of the
Administrative Agent or any Lender, from time to time, as often as may be
reasonably requested, but only during normal business hours, upon two Business
Days' notice, to (i) visit and inspect any properties of the Borrower and each
of its Subsidiaries, (ii) inspect and make extracts from their books and
records, including but not limited to management letters prepared by the
Borrower's independent accountants, and (iii) discuss with their principal
officers, and their independent accountants, their respective businesses,
assets, liabilities, financial conditions, results of operations and business
prospects. If a Default shall have occurred and be continuing, all reasonable
out-of-pocket costs and expenses incurred in connection with the foregoing shall
be borne by, or promptly on demand by any Lender be reimbursed by, the Borrower.
6.10 Merger. The Borrower will not, nor will it permit any Subsidiary to,
------
merge or consolidate with or into any other Person, except that, if after giving
effect thereto no Default or Unmatured Default would exist, this Section 6.10
shall not apply to (i) any merger or consolidation of the Borrower or Dayton
Power with any one or more Persons, provided, however, that the Borrower or
Dayton Power, as applicable, shall be the continuing Person in any such merger
or consolidation and (ii) any merger or consolidation of a Subsidiary of the
Borrower other than Dayton Power with any one or more Persons, provided,
however, that the continuing Person in any such merger or consolidation shall be
a Subsidiary of the Borrower.
6.11 Sale of Assets. The Borrower will not, nor will it permit Dayton Power
--------------
to, lease, sell or otherwise dispose of all or substantially all of its Property
to any other Person.
6.12 Investments and Acquisitions. The Borrower will not, nor will it
----------------------------
permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or to make any Acquisition of any
Person, except:
(i) Investments in customary cash equivalents in a manner substantially
consistent with the Borrower's policies and practices as of the date
of this Agreement.
(ii) Existing Investments as of September 30, 2001.
(iii) Investments by Dayton Power in its Subsidiaries.
(iv) Investments in the Non-Utility Subsidiaries and in other non-utility
businesses in compliance with applicable law.
61
(v) Permitted Acquisitions.
6.13 Liens. The Borrower will not, nor will it permit any Subsidiary to,
-----
create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or levies on its
Property if the same shall not at the time be delinquent or thereafter
can be paid without penalty, or are being contested in good faith and
by appropriate proceedings and for which adequate reserves in
accordance with Agreement Accounting Principles shall have been set
aside on its books.
(ii) Liens imposed by law, such as carriers', warehousemen's and mechanics'
liens and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than 60 days
past due or which are being contested in good faith by appropriate
proceedings and for which adequate reserves shall have been set aside
on its books.
(iii) Liens arising out of pledges or deposits under worker's compensation
laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation.
(iv) Easements, restrictions, rights of way, encroachments and such other
encumbrances or charges against real property which do not in any
material way interfere with the use thereof in the business of the
Borrower or its Subsidiaries.
(v) Liens existing on the date hereof and described in Schedule 6.13 and
any Lien constituting a renewal, extension or replacement of any such
scheduled Lien, but only, in the case of each such renewal, extension
or replacement Lien, if (A) the principal amount of the obligation
secured by such Lien does not exceed the principal amount of the
obligation so secured at the time of the extension, renewal or
replacement plus any premium incurred in the refinancing of such
obligation, (B) the obligation secured by such Lien bears interest at
a rate per annum that is commercially reasonable at the time such
obligation is incurred and (C) such renewal, extension or replacement
Lien is limited to all or a part of the property or asset that was
subject to the Lien extended, renewed or replaced and to fixed
improvements thereafter erected on such property or asset.
(vi) Liens on Property of Dayton Power (A) securing Dayton Power's First
Mortgage Bonds issued pursuant to the Indenture dated as of October 1,
1935, as amended and supplemented, between Dayton Power and The Bank
of New York or (B) in connection with collateralized pollution control
bonds.
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(vii) Liens incurred in the ordinary course of business securing the
performance of bids, trade contracts, leases (other than Capitalized
Leases), statutory obligations, security or appeal bonds and other
similar obligations, and judgment liens to the extent enforcement
thereof is effectively stayed, provided that full provision for the
payment of all such obligations shall have been made on the books of
the Borrower or such Subsidiary as may be required by Agreement
Accounting Principles.
(viii) Bankers' liens and rights of setoff arising by operation of law and
contractual rights of setoff.
(ix) Liens existing on any Property at the time such Property is acquired
or on any Property of any entity at the time such entity becomes, or
is merged into, a Subsidiary of the Borrower, and in either case not
created in anticipation of such event, and purchase money Liens
incurred to finance the acquisition of Property, provided that the
aggregate principal amount of Debt outstanding at any time incurred or
assumed pursuant to this clause (ix) shall not exceed an amount equal
to 5% of Consolidated Tangible Assets at such time.
6.14 Dividends. The Borrower shall not permit Dayton Power or any of its
---------
Subsidiaries to enter into any Contract or otherwise create or cause or permit
to exist or become effective any consensual restriction, limiting the ability
(whether by covenant, event of default or otherwise) of Dayton Power or its
Subsidiaries to (i) pay dividends or make any other distributions on shares of
its capital stock held by the Borrower or any other Subsidiary or (ii) pay any
obligation owed to the Borrower or any other Subsidiary, provided, however, that
this Section 6.14 shall not apply to (x) Permitted Restrictive Covenants, or (y)
Contracts or consensual restrictions between Dayton Power and any governmental
authority regulating Dayton Power, but only (I) to the extent that such
Contracts or restrictions set rates that Dayton Power may charge its customers
(including the inclusion or exclusion of assets in Dayton Power's rate base) or
(II) that are not primarily intended by such governmental authority to limit the
ability of Dayton Power to pay dividends or make any other distributions on
shares of its capital stock held by the Borrower or any other Subsidiary or pay
any obligation owed to the Borrower or any other Subsidiary and which do not
restrict Dayton Power's ability to make payments of, or pay any obligation owed
to the Borrower or any other Subsidiary out of or from, amounts otherwise
available for such payments under applicable law other than as a result of a
general reduction of net income of Dayton Power or any of its Subsidiaries.
6.15 Intentionally Omitted.
---------------------
6.16 Affiliates. The Borrower will not, and will not permit any Subsidiary
----------
to, enter into any transaction (including, without limitation, the purchase or
sale of any Property or service) with, or make any payment or transfer to, any
Affiliate except upon fair and reasonable terms no less favorable to the
Borrower or such Subsidiary than the Borrower or such Subsidiary would obtain in
a comparable arms-length transaction.
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6.17 Financial Covenants.
-------------------
(a) The Borrower shall not permit Consolidated Debt to exceed 72% of
Consolidated Total Capitalization
(b) The Borrower shall not permit the Fixed Charge Coverage Ratio,
determined as of the end of each of its fiscal quarters for the four
fiscal quarter period then ended, to be less than 1.10 to 1; provided,
however, that the Borrower shall not be required to comply with this
Section 6.17(b) as of the end of any fiscal quarter if, as of such
date, the Borrower's ▇▇▇▇▇'▇ Rating (as defined in the Pricing
Schedule) was Baa2 or better and the Borrower's S&P Rating (as defined
in the Pricing Schedule) was BBB or better.
6.18 Financial Contracts. The Borrower shall not, and shall not permit any
-------------------
Subsidiary to, enter into any Financial Contract other than Financial Contracts
pursuant to which the Borrower or such Subsidiary has hedged its reasonably
estimated interest rate, foreign currency or commodity exposure, and not for
speculative purposes.
6.19 Margin Stock. The Borrower shall not permit margin stock (as defined
------------
in Regulation U) to constitute 25% or more of the value of those assets of the
Borrower and its Subsidiaries which are subject to any limitation on sale,
pledge or other restriction hereunder.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
7.1 Any representation or warranty made or deemed made by or on behalf of
the Borrower or any of its Subsidiaries to the Lenders or the Administrative
Agent under or in connection with this Agreement, any Loan, or any certificate
or document delivered in connection with this Agreement or any other Loan
Document shall be materially false on the date as of which made.
7.2 Nonpayment of principal of any Loan when due, or nonpayment of interest
upon any Loan or of any fee or other payment obligations under any of the Loan
Documents within five days after the same becomes due.
7.3 The breach by the Borrower of any of the terms or provisions of Section
6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.16, or 6.17.
7.4 The breach by the Borrower (other than a breach which constitutes a
Default under another Section of this Article VII) of any of the terms or
provisions of this Agreement which is not remedied within thirty (30) days after
written notice from the Administrative Agent or any Lender.
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7.5 Failure of the Borrower or any of its Subsidiaries to pay when due any
Debt aggregating in excess of $10,000,000 ("Material Debt"); or the default by
the Borrower or any of its Subsidiaries in the performance (beyond the
applicable grace period with respect thereto, if any) of any term, provision or
condition contained in any agreement under which any such Material Debt was
created or is governed, or any other event shall occur or condition exist, the
effect of which default or event is to cause, or to permit the holder or holders
of such Material Debt to cause, such Material Debt to become due prior to its
stated maturity; or any Material Debt of the Borrower or any of its Subsidiaries
shall be declared to be due and payable or required to be prepaid or repurchased
(other than by a regularly scheduled payment) prior to the stated maturity
thereof; or the Borrower or any of its Subsidiaries shall not pay, or admit in
writing its inability to pay, its debts generally as they become due.
7.6 The Borrower or any of its Subsidiaries shall (i) have an order for
relief entered with respect to it under the Federal bankruptcy laws as now or
hereafter in effect, (ii) make an assignment for the benefit of creditors, (iii)
apply for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
Substantial Portion of its Property, (iv) institute any proceeding seeking an
order for relief under the Federal bankruptcy laws as now or hereafter in effect
or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (v)
take any corporate or partnership action to authorize or effect any of the
foregoing actions set forth in this Section 7.6 or (vi) fail to contest in good
faith any appointment or proceeding described in Section 7.7.
7.7 Without the application, approval or consent of the Borrower or any of
its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official
shall be appointed for the Borrower or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in Section
7.6(iv) shall be instituted against the Borrower or any of its Subsidiaries and
such appointment continues undischarged or such proceeding continues undismissed
or unstayed for a period of 60 consecutive days.
7.8 Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of, all or any portion of the
Property of the Borrower and its Subsidiaries which, when taken together with
all other Property of the Borrower and its Subsidiaries so condemned, seized,
appropriated, or taken custody or control of, during the twelve-month period
ending with the month in which any such action occurs, constitutes a Substantial
Portion.
7.9 The Borrower or any of its Subsidiaries shall fail within 30 days to
pay, bond or otherwise discharge one or more (i) judgments or orders for the
payment of money (to the extent not covered by independent third-party insurance
as to which the insurer does not dispute coverage) in excess of $10,000,000 (or
the equivalent thereof in currencies other than U.S. Dollars) in the aggregate,
or (ii) nonmonetary judgments or orders which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect, which
judgment(s),
65
in any such case, is/are not stayed on appeal or otherwise being appropriately
contested in good faith.
7.10 The Unfunded Liabilities of all Single Employer Plans shall exceed in
the aggregate $20,000,000 or any Reportable Event shall occur in connection with
any Plan.
7.11 The Borrower or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $10,000,000 or
requires payments exceeding $10,000,000 per annum.
7.12 The Borrower or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of Title IV
of ERISA, if as a result of such reorganization or termination the aggregate
annual contributions of the Borrower and the other members of the Controlled
Group (taken as a whole) to all Multiemployer Plans which are then in
reorganization or being terminated have been or will be increased over the
amounts contributed to such Multiemployer Plans for the respective plan years of
each such Multiemployer Plan immediately preceding the plan year in which the
reorganization or termination occurs by an amount exceeding $10,000,000.
7.13 The Borrower or any of its Subsidiaries shall (i) be the subject of
any proceeding or investigation pertaining to the release by the Borrower, any
of its Subsidiaries or any other Person of any toxic or hazardous waste or
substance into the environment, or (ii) violate any Environmental Law, which, in
the case of an event described in clause (i) or clause (ii), could reasonably be
expected to have a Material Adverse Effect.
7.14 Any Change in Control shall occur.
7.15 The representations and warranties set forth in Section 5.15 shall at
any time not be true and correct.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
66
8.1 Acceleration. If any Default described in Section 7.6 or 7.7 occurs
------------
with respect to the Borrower, the obligations of the Lenders to make Loans
hereunder shall automatically terminate and the Obligations shall immediately
become due and payable without any election or action on the part of the
Administrative Agent or any Lender. If any other Default occurs, the Required
Lenders (or the Administrative Agent with the consent of the Required Lenders)
may terminate or suspend the obligations of the Lenders to make Loans hereunder,
or declare the Obligations to be due and payable, or both, whereupon the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrower hereby
expressly waives.
If, within 30 days after acceleration of the maturity of the Obligations or
termination of the obligations of the Lenders to make Loans hereunder as a
result of any Default (other than any Default as described in Section 7.6 or 7.7
with respect to the Borrower) and before any judgment or decree for the payment
of the Obligations due shall have been obtained or entered, the Required Lenders
(in their sole discretion) shall so direct, the Administrative Agent shall, by
notice to the Borrower, rescind and annul such acceleration and/or termination.
8.2 Amendments. Subject to the provisions of this Article VIII, the
----------
Required Lenders (or the Administrative Agent with the consent in writing of the
Required Lenders) and the Borrower may enter into agreements supplemental hereto
for the purpose of adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders or the Borrower hereunder or
waiving any Default hereunder; provided, however, that no such supplemental
agreement shall, without the consent of all of the Lenders:
(i) Extend the final maturity of any Loan or postpone any regularly
scheduled payment of principal of any Loan or forgive all or any
portion of the principal amount thereof, or reduce the rate or extend
the time of payment of interest or fees thereon.
(ii) Reduce the percentage specified in the definition of Required Lenders.
(iii) Extend the Facility Termination Date, or reduce the amount or extend
the payment date for, the mandatory payments required under Section
2.2, or increase the amount of the Aggregate Commitment or of the
Commitment of any Lender hereunder, or permit the Borrower to assign
its rights under this Agreement.
(iv) Amend this Section 8.2.
(v) No amendment of any provision of this Agreement relating to the
Administrative Agent shall be effective without the written consent of
the Administrative Agent. The Administrative Agent may waive payment
of the fee required under Section 12.3.2 without obtaining the consent
of any other party to this Agreement.
8.3 Preservation of Rights. No delay or omission of the Lenders or the
----------------------
Administrative Agent to exercise any right under the Loan Documents shall impair
such right or
67
be construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the inability of
the Borrower to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section 8.2, and then only
to the extent in such writing specifically set forth. All remedies contained in
the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Administrative Agent and the Lenders until the Obligations have
been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1 Survival of Representations. All representations and warranties of the
---------------------------
Borrower contained in this Agreement shall survive the making of the Loans
herein contemplated.
9.2 Headings. Section headings in the Loan Documents are for convenience of
--------
reference only, and shall not govern the interpretation of any of the provisions
of the Loan Documents.
9.3 Entire Agreement. The Loan Documents embody the entire agreement and
----------------
understanding among the Borrower, the Administrative Agent and the Lenders and
supersede all prior agreements and understandings among the Borrower, the
Administrative Agent and the Lenders relating to the subject matter thereof
other than the fee letter described in Section 10.13.
9.4 Several Obligations; Benefits of this Agreement. The respective
-----------------------------------------------
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or Administrative Agent of any other (except to the extent
to which the Administrative Agent is authorized to act as such). The failure of
any Lender to perform any of its obligations hereunder shall not relieve any
other Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns, provided,
however, that the parties hereto expressly agree that the Arranger shall enjoy
the benefits of the provisions of Sections 9.5, 9.9 and 10.11 to the extent
specifically set forth therein and shall have the right to enforce such
provisions on its own behalf and in its own name to the same extent as if it
were a party to this Agreement.
9.5 Expenses; Indemnification. (i) The Borrower shall reimburse the
-------------------------
Administrative Agent and the Arranger for any reasonable out-of-pocket costs and
expenses (including attorneys' fees and time charges of attorneys for the
Administrative Agent, which attorneys may be employees of the Administrative
Agent) paid or incurred by the Administrative Agent or the Arranger in
connection with the preparation, negotiation, execution, delivery, syndication,
review, amendment, modification, and administration of the Loan Documents. The
Borrower also agrees to reimburse the Administrative Agent, the Arranger and the
Lenders for any
68
reasonable out-of-pocket costs and expenses (including attorneys' fees and time
charges of attorneys for the Administrative Agent, the Arranger and the Lenders,
which attorneys may be employees of the Administrative Agent, the Arranger or
the Lenders) paid or incurred by the Administrative Agent, the Arranger or any
Lender in connection with the collection and enforcement of the Loan Documents.
Expenses being reimbursed by the Borrower under this Section include, without
limitation, costs and expenses incurred in connection with the Reports described
in the following sentence. The Borrower acknowledges that from time to time Bank
One, NA may prepare and may distribute to the Lenders (but shall have no
obligation or duty to prepare or to distribute to the Lenders) certain audit
reports (the "Reports") pertaining to the Borrower's assets for internal use by
Bank One, NA from information furnished to it by or on behalf of the Borrower,
after Bank One, NA has exercised its rights of inspection pursuant to this
Agreement.
(ii) The Borrower hereby further agrees to indemnify the Administrative
Agent, the Arranger and each Lender, its directors, officers and employees
against all losses, claims, damages, penalties, judgments, liabilities and
expenses (including, without limitation, all expenses of litigation or
preparation therefor whether or not the Administrative Agent, the Arranger or
any Lender is a party thereto) (collectively, "Claims") which any of them may
pay or incur arising out of or relating to this Agreement, the other Loan
Documents, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Loan hereunder,
except to the extent that they (A) are determined in a final non-appealable
judgment by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the party seeking indemnification or (B)
arise from a dispute between any Lenders or between any Lender and the
Administrative Agent. No party entitled to indemnification hereunder shall enter
into a settlement or other compromise or consent to a judgment with respect to
any Claim without the prior written consent of the Borrower (which consent shall
not be unreasonably withheld or delayed). The entering into of any such
settlement or compromise or consent without the Borrower's prior written consent
(unless the withholding of such consent by the Borrower requested by such party
shall have been unreasonable) shall constitute a waiver by such party of its
rights of indemnification hereunder in respect of such matter. The obligations
of the Borrower under this Section 9.5 shall survive the termination of this
Agreement.
9.6 Numbers of Documents. All statements, notices, closing documents, and
--------------------
requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
9.7 Accounting. Except as provided to the contrary herein, all accounting
----------
terms used herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with Agreement Accounting Principles,
except that any calculation or determination which is to be made on a
consolidated basis shall be made for the Borrower and all its Subsidiaries,
including those Subsidiaries, if any, which are unconsolidated on the Borrower's
audited financial statements.
69
9.8 Severability of Provisions. Any provision in any Loan Document that is
--------------------------
held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as
to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
9.9 Nonliability of Lenders. The relationship between the Borrower on the
-----------------------
one hand and the Lenders and the Administrative Agent on the other hand shall be
solely that of borrower and lender. Neither the Administrative Agent, the
Arranger nor any Lender shall have any fiduciary responsibilities to the
Borrower. Neither the Administrative Agent, the Arranger nor any Lender
undertakes any responsibility to the Borrower to review or inform the Borrower
of any matter in connection with any phase of the Borrower's business or
operations. The Borrower agrees that neither the Administrative Agent, the
Arranger nor any Lender shall have liability to the Borrower (whether sounding
in tort, contract or otherwise) for losses suffered by the Borrower in
connection with, arising out of, or in any way related to, the transactions
contemplated and the relationship established by the Loan Documents, or any act,
omission or event occurring in connection therewith, unless it is determined in
a final non-appealable judgment by a court of competent jurisdiction that such
losses resulted from the gross negligence or willful misconduct of the party
from which recovery is sought. Neither the Administrative Agent, the Arranger
nor any Lender shall have any liability with respect to, and the Borrower hereby
waives, releases and agrees not to ▇▇▇ for, any special, indirect or
consequential damages suffered by the Borrower in connection with, arising out
of, or in any way related to the Loan Documents or the transactions contemplated
thereby.
9.10 Confidentiality. Each Lender and the Administrative Agent agree to
---------------
hold any confidential information which it may receive from the Borrower or any
of its Subsidiaries pursuant to this Agreement in confidence, not to use any of
such confidential information for any purpose other than as may be reasonably
required in connection with its participation in the transactions contemplated
hereby and not to disclose any of such confidential information to any other
Person, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee, (iii) to regulatory
officials, (iv) to any Person as required by law, regulation, or legal process,
(v) to any Person in connection with any legal proceeding in connection with
this Agreement to which such Lender is a party, (vi) to such Lender's direct or
indirect contractual counterparties in swap agreements in connection with this
Agreement or to legal counsel, accountants and other professional advisors to
such counterparties, and (vii) permitted by Section 12.4; provided, however,
that the Person to whom any such confidential information is disclosed pursuant
to the foregoing clauses (i), (ii), (vi) or (vii) shall be subject to the
confidentiality obligations in favor of the Borrower and its Subsidiaries set
forth in this Section 9.10.
9.11 Nonreliance. Each Lender hereby represents that it is not relying on
-----------
or looking to any margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) for the repayment of the Loans provided
for herein.
ARTICLE X
70
THE ADMINISTRATIVE AGENT
10.1 Appointment; Nature of Relationship. Bank One, NA is hereby appointed
-----------------------------------
by each of the Lenders as its contractual representative (herein referred to as
the "Administrative Agent") hereunder and under each other Loan Document, and
each of the Lenders irrevocably authorizes the Administrative Agent to act as
the contractual representative of such Lender with the rights and duties
expressly set forth herein and in the other Loan Documents. The Administrative
Agent agrees to act as such contractual representative upon the express
conditions contained in this Article X. Notwithstanding the use of the defined
term "Administrative Agent," it is expressly understood and agreed that the
Administrative Agent shall not have any fiduciary responsibilities to any Lender
by reason of this Agreement or any other Loan Document and that the
Administrative Agent is merely acting as the contractual representative of the
Lenders with only those duties as are expressly set forth in this Agreement and
the other Loan Documents. In its capacity as the Lenders' contractual
representative, the Administrative Agent (i) does not hereby assume any
fiduciary duties to any of the Lenders, (ii) is a "representative" of the
Lenders within the meaning of Section 9-102 of the Uniform Commercial Code and
(iii) is acting as an independent contractor, the rights and duties of which are
limited to those expressly set forth in this Agreement and the other Loan
Documents. Each of the Lenders hereby agrees to assert no claim against the
Administrative Agent on any agency theory or any other theory of liability for
breach of fiduciary duty, all of which claims each Lender hereby waives.
10.2 Powers. The Administrative Agent shall have and may exercise such
------
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent.
10.3 General Immunity. Neither the Administrative Agent nor any of its
----------------
directors, officers, agents or employees shall be liable to the Borrower, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is determined in a final
non-appealable judgment by a court of competent jurisdiction to have arisen from
the gross negligence or willful misconduct of such Person.
10.4 No Responsibility for Loans, Recitals, etc. Neither the Administrative
------------------------------------------
Agent nor any of its directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into, or verify (a) any
statement, warranty or representation made in connection with any Loan Document
or any borrowing hereunder; (b) the performance or observance of any of the
covenants or agreements of any obligor under any Loan Document, including,
without limitation, any agreement by an obligor to furnish information directly
to each Lender; (c) the satisfaction of any condition specified in Article IV,
except receipt of items required to be delivered solely to the Administrative
Agent; (d) the existence or possible existence of any Default or Unmatured
Default; and (e) the validity, enforceability, effectiveness, sufficiency or
71
genuineness of any Loan Document or any other instrument or writing furnished in
connection therewith. The Administrative Agent shall have no duty to disclose to
the Lenders information that is not required to be furnished by the Borrower to
the Administrative Agent at such time, but is voluntarily furnished by the
Borrower to the Administrative Agent (either in its capacity as Administrative
Agent or in its individual capacity).
10.5 Action on Instructions of Lenders. The Administrative Agent shall in
---------------------------------
all cases be fully protected in acting, or in refraining from acting, hereunder
and under any other Loan Document in accordance with written instructions signed
by the Required Lenders, and such instructions and any action taken or failure
to act pursuant thereto shall be binding on all of the Lenders. The Lenders
hereby acknowledge that the Administrative Agent shall be under no duty to take
any discretionary action permitted to be taken by it pursuant to the provisions
of this Agreement or any other Loan Document unless it shall be requested in
writing to do so by the Required Lenders. The Administrative Agent shall be
fully justified in failing or refusing to take any action hereunder and under
any other Loan Document unless it shall first be indemnified to its satisfaction
by the Lenders pro rata against any and all liability, cost and expense that it
may incur by reason of taking or continuing to take any such action.
10.6 Employment of Administrative Agents and Counsel. The Administrative
-----------------------------------------------
Agent may execute any of its duties as Administrative Agent hereunder and under
any other Loan Document by or through employees, agents, and attorneys-in-fact
and shall not be answerable to the Lenders, except as to money or securities
received by it or its authorized Administrative Agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Administrative Agent shall be entitled to advice of counsel
concerning the contractual arrangement between the Administrative Agent and the
Lenders and all matters pertaining to the Administrative Agent's duties
hereunder and under any other Loan Document.
10.7 Reliance on Documents; Counsel. The Administrative Agent shall be
------------------------------
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
10.8 Administrative Agent's Reimbursement and Indemnification. The Lenders
--------------------------------------------------------
agree to reimburse and indemnify the Administrative Agent ratably in proportion
to their respective Commitments (or, if the Commitments have been terminated, in
proportion to their Commitments immediately prior to such termination) (i) for
any amounts not reimbursed by the Borrower for which the Administrative Agent is
entitled to reimbursement by the Borrower under the Loan Documents, (ii) for any
other expenses incurred by the Administrative Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents (including, without limitation, for any such
expenses incurred by the Administrative Agent in connection with any dispute
between the Administrative Agent and any Lender or between two or more of the
Lenders) and (iii) for any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or
72
asserted against the Administrative Agent in any way relating to or arising out
of the Loan Documents or any other document delivered in connection therewith or
the transactions contemplated thereby (including, without limitation, for any
such amounts incurred by or asserted against the Administrative Agent in
connection with any dispute between the Administrative Agent and any Lender or
between two or more of the Lenders), or the enforcement of any of the terms of
the Loan Documents or of any such other documents, provided that (i) no Lender
shall be liable for any of the foregoing to the extent any of the foregoing is
found in a final non-appealable judgment by a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of the
Administrative Agent and (ii) any indemnification required pursuant to Section
3.5(vii) shall, notwithstanding the provisions of this Section 10.8, be paid by
the relevant Lender in accordance with the provisions thereof. The obligations
of the Lenders under this Section 10.8 shall survive payment of the Obligations
and termination of this Agreement.
10.9 Notice of Default. The Administrative Agent shall not be deemed to
-----------------
have knowledge or notice of the occurrence of any Default or Unmatured Default
hereunder unless the Administrative Agent has received written notice from a
Lender or the Borrower referring to this Agreement describing such Default or
Unmatured Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give prompt notice thereof to the Lenders.
10.10 Rights as a Lender. In the event the Administrative Agent is a
------------------
Lender, the Administrative Agent shall have the same rights and powers hereunder
and under any other Loan Document with respect to its Commitment and its Loans
as any Lender and may exercise the same as though it were not the Administrative
Agent, and the term "Lender" or "Lenders" shall, at any time when the
Administrative Agent is a Lender, unless the context otherwise indicates,
include the Administrative Agent in its individual capacity. The Administrative
Agent and its Affiliates may accept deposits from, lend money to, and generally
engage in any kind of trust, debt, equity or other transaction, in addition to
those contemplated by this Agreement or any other Loan Document, with the
Borrower or any of its Subsidiaries in which the Borrower or such Subsidiary is
not restricted hereby from engaging with any other Person.
10.11 Lender Credit Decision. Each Lender acknowledges that it has,
----------------------
independently and without reliance upon the Administrative Agent, the Arranger
or any other Lender and based on the financial statements prepared by the
Borrower and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent, the Arranger or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents.
10.12 Successor Administrative Agent. The Administrative Agent may resign
------------------------------
at any time by giving written notice thereof to the Lenders and the Borrower,
such resignation to be effective upon the appointment of a successor
Administrative Agent or, if no successor
73
Administrative Agent has been appointed, forty-five days after the retiring
Administrative Agent gives notice of its intention to resign. The Administrative
Agent may be removed at any time with or without cause by written notice
received by the Administrative Agent from the Required Lenders, such removal to
be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of the Lenders, a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders within
thirty days after the resigning Administrative Agent's giving notice of its
intention to resign, then the resigning Administrative Agent may appoint, on
behalf of the Lenders, a successor Administrative Agent. Notwithstanding the
previous sentence, the Administrative Agent may at any time without the consent
of the Borrower or any Lender, appoint any of its Affiliates which is a
commercial bank as a successor Administrative Agent hereunder. If the
Administrative Agent has resigned or been removed and no successor
Administrative Agent has been appointed, the Lenders may perform all the duties
of the Administrative Agent hereunder and the Borrower shall make all payments
in respect of the Obligations to the applicable Lender and for all other
purposes shall deal directly with the Lenders. No successor Administrative Agent
shall be deemed to be appointed hereunder until such successor Administrative
Agent has accepted the appointment. Any such successor Administrative Agent
shall be a commercial bank having capital and retained earnings of at least
$100,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the resigning or removed Administrative Agent. Upon the
effectiveness of the resignation or removal of the Administrative Agent, the
resigning or removed Administrative Agent shall be discharged from its duties
and obligations hereunder and under the Loan Documents. After the effectiveness
of the resignation or removal of an Administrative Agent, the provisions of this
Article X shall continue in effect for the benefit of such Administrative Agent
in respect of any actions taken or omitted to be taken by it while it was acting
as the Administrative Agent hereunder and under the other Loan Documents. In the
event that there is a successor to the Administrative Agent by merger, or the
Administrative Agent assigns its duties and obligations to an Affiliate pursuant
to this Section 10.12, then the term "Prime Rate" as used in this Agreement
shall mean the prime rate, base rate or other analogous rate of the new
Administrative Agent.
10.13 Administrative Agent's Fee. The Borrower agrees to pay to the
--------------------------
Administrative Agent, for its own account, the fees agreed to by the Borrower
and the Administrative Agent pursuant to that certain letter agreement dated
November 15, 2001, or as otherwise agreed from time to time.
10.14 Delegation to Affiliates. The Borrower and the Lenders agree that the
------------------------
Administrative Agent may delegate any of its duties under this Agreement to any
of its Affiliates. Any such Affiliate (and such Affiliate's directors, officers,
agents and employees) which performs duties in connection with this Agreement
shall be entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Administrative Agent is entitled under
Articles IX and X.
74
10.15 Syndication Agent. No Lender identified herein as the "Syndication
-----------------
Agent" shall have any right, duty, obligation, power, liability, or
responsibility hereunder other than those applicable to any Person in its
capacity as a Lender hereunder.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 Setoff. In addition to, and without limitation of, any rights of the
------
Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Debt at any time held or owing by any Lender or any
Affiliate of any Lender to or for the credit or account of the Borrower may be
offset and applied toward the payment of the Obligations owing to such Lender,
whether or not the Obligations, or any part hereof, shall then be due.
11.2 Ratable Payments. If any Lender, whether by setoff or otherwise, has
----------------
payment made to it upon its Loans (other than payments received pursuant to
Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to their Loans. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns. The terms and provisions of the Loan Documents
----------------------
shall be binding upon and inure to the benefit of the Borrower and the Lenders
and their respective successors and assigns, except that (i) the Borrower shall
not have the right to assign its rights or obligations under the Loan Documents
and (ii) any assignment by any Lender must be made in compliance with Section
12.3. Notwithstanding clause (ii) of this Section, any Lender may at any time,
without the consent of the Borrower or the Administrative Agent, assign all or
any portion of its rights under this Agreement and any Note to a Federal Reserve
Bank; provided, however, that no such assignment to a Federal Reserve Bank shall
release the transferor Lender from its obligations hereunder. The Administrative
Agent may treat the Person which made any Loan or which holds any Note as the
owner thereof for all purposes hereof unless and until such Person complies with
Section 12.3 in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with the Administrative
Agent. Any assignee or transferee of the rights to any Loan or any Note agrees
by acceptance of such transfer or assignment to be bound by all the terms and
provisions of the Loan Documents. Any request,
75
authority or consent of any Person, who at the time of making such request or
giving such authority or consent is the owner of the rights to any Loan (whether
or not a Note has been issued in evidence thereof), shall be conclusive and
binding on any subsequent holder, transferee or assignee of the rights to such
Loan.
12.2 Participations.
--------------
12.2.1 Permitted Participants; Effect. Any Lender may, in the ordinary
----------------------
course of its business and in accordance with applicable law, at any time sell
to one or more banks or other entities ("Participants") participating interests
in any Loan owing to such Lender, any Note held by such Lender, any Commitment
of such Lender or any other interest of such Lender under the Loan Documents. In
the event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Loan Documents shall remain
unchanged, such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, such Lender shall remain the
owner of its Loans and the holder of any Note issued to it in evidence thereof
for all purposes under the Loan Documents, all amounts payable by the Borrower
under this Agreement shall be determined as if such Lender had not sold such
participating interests, and the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents.
12.2.2 Voting Rights. Each Lender shall retain the sole right to
-------------
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Loan or Commitment in which such
Participant has an interest which forgives principal, interest or fees or
reduces the interest rate or fees payable with respect to any such Loan or
Commitment, extends the Facility Termination Date, or postpones any date fixed
for any regularly-scheduled payment of principal of, or interest or fees on, any
such Loan or Commitment.
12.2.3 Benefit of Setoff. The Borrower agrees that each Participant
-----------------
shall be deemed to have the right of setoff provided in Section 11.1 in respect
of its participating interest in amounts owing under the Loan Documents to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under the Loan Documents, provided that each Lender shall
retain the right of setoff provided in Section 11.1 with respect to the amount
of participating interests sold to each Participant. The Lenders agree to share
with each Participant, and each Participant, by exercising the right of setoff
provided in Section 11.1, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with Section 11.2 as if each Participant were a Lender.
12.3 Assignments.
-----------
12.3.1 Permitted Assignments. Any Lender may, in the ordinary course
---------------------
of its business and in accordance with applicable law, at any time assign to one
or more banks or other entities ("Purchasers") all or any part of its rights and
obligations under the Loan Documents.
76
Such assignment shall be substantially in the form of Exhibit C or in such other
form as may be agreed to by the parties thereto. The consent of the Borrower and
the Administrative Agent shall be required prior to an assignment becoming
effective with respect to a Purchaser which is not a Lender or an Affiliate
thereof; provided, however, that if a Default has occurred and is continuing,
the consent of the Borrower shall not be required. Such consent shall not be
unreasonably withheld or delayed. Each such assignment shall (unless it is to a
Lender or an Affiliate thereof or each of the Borrower and the Administrative
Agent otherwise consents) be in an amount not less than the lesser of (i)
$5,000,000 or (ii) the remaining amount of the assigning Lender's Commitment
(calculated as at the date of such assignment).
12.3.2 Effect; Effective Date. Upon (i) delivery to the Administrative
----------------------
Agent of a notice of assignment, substantially in the form attached as Exhibit I
to Exhibit C (a "Notice of Assignment"), together with any consents required by
Section 12.3.1, and (ii) payment of a $4,000 fee to the Administrative Agent for
processing such assignment, such assignment shall become effective on the
effective date specified in such Notice of Assignment. The Notice of Assignment
shall contain a representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment and Loans under the
applicable assignment agreement are "plan assets" as defined under ERISA and
that the rights and interests of the Purchaser in and under the Loan Documents
will not be "plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to this
Agreement and any other Loan Document executed by or on behalf of the Lenders
and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and no
further consent or action by the Borrower, the Lenders or the Administrative
Agent shall be required to release the transferor Lender with respect to the
percentage of the Aggregate Commitment and Loans assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant to this Section
12.3.2, the transferor Lender, the Administrative Agent and the Borrower shall,
if the transferor Lender or the Purchaser desires that its Loans be evidenced by
Notes, make appropriate arrangements so that new Notes or, as appropriate,
replacement Notes are issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in each case in
principal amounts reflecting their respective Commitments, as adjusted pursuant
to such assignment.
Special Purpose Funding Vehicles. Notwithstanding anything to the contrary
--------------------------------
contained herein, any Lender (a "Granting Lender") may grant to a special
purpose funding vehicle (an "SPC"), identified as such in writing from time to
time by the Granting Lender to the Administrative Agent and the Borrower, the
option to provide to the Borrower all or any part of any Loan that such Granting
Lender would otherwise be obligated to make to the Borrower pursuant to this
Agreement; provided that (i) nothing herein shall constitute a commitment by any
SPC to make any Loan, (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Lender
shall be obligated to make such Loan pursuant to the terms hereof. The making of
a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender
to the same extent, and as if, such Loan were made by such Granting Lender. Each
party hereto hereby agrees that no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement (all liability for which shall
remain with the Granting Lender). In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive
77
the termination of this Agreement) that, prior to the date that is one year and
one day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereof. In addition, notwithstanding anything to the
contrary contained in this Section 12.3.3, any SPC may (i) with notice to, but
without the prior written consent of, the Borrower and the Administrative Agent
and without paying any processing fee therefor, assign all or a portion of its
interests in any Loans to the Granting Lender or to any financial institutions
(consented to by the Borrower and Administrative Agent) providing liquidity
and/or credit support to or for the account of such SPC to support the funding
or maintenance of Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider of any surety, guarantee or credit or liquidity enhancement to such
SPC. This Section 12.3.3 may not be amended without the written consent of the
SPC.
12.4 Dissemination of Information. The Borrower authorizes each Lender to
----------------------------
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries, including
without limitation any information contained in any Reports; provided that each
Transferee and prospective Transferee agrees to be bound by Section 9.10 of this
Agreement.
12.5 Tax Treatment. If any interest in any Loan Document is transferred to
-------------
any Transferee which is organized under the laws of any jurisdiction other than
the United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply with
the provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1 Notices. Except as otherwise permitted by Section 2.08 with respect to
-------
borrowing notices, all notices, requests and other communications to any party
hereunder shall be in writing (including electronic transmission, facsimile
transmission or similar writing) and shall be given to such party: (x) in the
case of the Borrower or the Administrative Agent, at its address or facsimile
number set forth on the signature pages hereof, (y) in the case of any Lender,
at its address or facsimile number set forth in its completed administrative
questionnaire as delivered to the Administrative Agent, or (z) in the case of
any party, at such other address or facsimile number as such party may hereafter
specify for the purpose by notice to the Administrative Agent and the Borrower
in accordance with the provisions of this Section 13.1. Each such notice,
request or other communication shall be effective (i) if given by facsimile
transmission, when transmitted to the facsimile number specified in this Section
and confirmation of receipt is received, (ii) if given by mail, 72 hours after
such communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (iii) if given by any other means, when
78
delivered (or, in the case of electronic transmission, received) at the address
specified in this Section; provided that notices to the Administrative Agent
under Article II shall not be effective until received.
13.2 Change of Address. The Borrower, the Administrative Agent and any
-----------------
Lender may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Administrative Agent and the Lenders and each party has notified the
Administrative Agent by facsimile transmission or telephone that it has taken
such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
-------------
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2 CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO
-----------------------
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST
THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
THE BORROWER AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY AFFILIATE OF
THE ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS OR THE CITY IN
79
WHICH THE CHIEF EXECUTIVE OFFICE OF THE ADMINISTRATIVE AGENT OR SUCH LENDER OR
AFFILIATE, AS THE CASE MAY BE, IS LOCATED.
15.3 WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH
--------------------
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
The remainder of this page is intentionally blank.
80
IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative
Agent have executed this Revolving Credit Agreement as of the date first above
written.
DPL INC.
By:
----------------------------------
Name:
Title:
Address:
Attention:
Telephone:
Facsimile:
Signature Page to ▇▇▇▇ ▇▇▇ Revolving Credit Agreement
81
BANK ONE, NA,individually and as
Administrative Agent
By:
----------------------------------
Name:
Title:
Address: ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telephone:
Facsimile:
Signature Page to ▇▇▇▇ ▇▇▇ Revolving Credit Agreement
82
KEYBANK NATIONAL ASSOCIATION,
individually and as Syndication Agent
By:
---------------------------------
Name:
Title:
Signature Page to ▇▇▇▇ ▇▇▇ Revolving Credit Agreement
83
HUNTINGTON NATIONAL BANK
By:
----------------------------------
Name:
Title:
Signature Page to ▇▇▇▇ ▇▇▇ Revolving Credit Agreement
▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇
By:
----------------------------------
Name:
Title:
Signature Page to ▇▇▇▇ ▇▇▇ Revolving Credit Agreement
85
NATIONAL CITY BANK
By:
----------------------------------
Name:
Title:
Signature Page to ▇▇▇▇ ▇▇▇ Revolving Credit Agreement
86
FLEET NATIONAL BANK
By:
----------------------------------
Name:
Title:
Signature Page to ▇▇▇▇ ▇▇▇ Revolving Credit Agreement
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.
By:
----------------------------------
Name:
Title:
Signature Page to ▇▇▇▇ ▇▇▇ Revolving Credit Agreement
88
PRICING SCHEDULE
--------------------------------------------------------------------------------
APPLICABLE LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V LEVEL VI
MARGIN STATUS STATUS STATUS STATUS STATUS STATUS
--------------------------------------------------------------------------------
Eurodollar Rate 0.23% 0.375% 0.60% 0.70% 0.925% 1.50%
--------------------------------------------------------------------------------
Alternate Base 0% 0% 0% 0% 0% 0.25%
Rate
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
STATUS LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V LEVEL VI
STATUS STATUS STATUS STATUS STATUS STATUS
--------------------------------------------------------------------------------
Applicable Fee 0.095% 0.125% 0.15% 0.175% 0.20% 0.25%
Rate
--------------------------------------------------------------------------------
For purposes of this Schedule, the following terms have the following
meanings, subject to the final paragraph of this Schedule:
"Level I Status" exists at any date if, on such date, the Borrower's
▇▇▇▇▇'▇ Rating is Aa3 or better or the Borrower's S&P Rating is AA- or better.
"Level II Status" exists at any date if, on such date, (i) the Borrower has
not qualified for Level I Status and (ii) the Borrower's ▇▇▇▇▇'▇ Rating is A2 or
better or the Borrower's S&P Rating is A or better.
"Level III Status" exists at any date if, on such date, (i) the Borrower
has not qualified for Level I Status or Level II Status and (ii) the Borrower's
▇▇▇▇▇'▇ Rating is Baa1 or better or the Borrower's S&P Rating is BBB+ or better.
"Level IV Status" exists at any date if, on such date, (i) the Borrower has
not qualified for Level I Status, Level II Status or Level III Status and (ii)
the Borrower's ▇▇▇▇▇'▇ Rating is Baa2 or better or the Borrower's S&P Rating is
BBB or better.
"Level V Status" exists at any date if, on such date, (i) the Borrower has
not qualified for Level I Status, Level II Status, Level III Status or Level IV
Status and (ii) the Borrower's ▇▇▇▇▇'▇ Rating is Baa3 or better or the
Borrower's S&P Rating is BBB- or better.
"Level VI Status" exists at any date if, on such date, the Borrower has not
qualified for Level I Status, Level II Status, Level III Status, Level IV
Status, or Level V Status.
"▇▇▇▇▇'▇ Rating" means, at any time, the rating issued by ▇▇▇▇▇'▇ Investors
Service, Inc. and then in effect with respect to the Borrower's senior unsecured
long-term debt securities without third-party credit enhancement.
"S&P Rating" means, at any time, the rating issued by Standard and
Poor's Rating Services, a division of The McGraw Hill Companies, Inc., and then
in effect with respect to the Borrower's senior unsecured long-term debt
securities without third-party credit enhancement.
89
"Status" means Level I Status, Level II Status, Level III Status, Level IV
Status, Level V Status or Level VI Status.
The Applicable Margin and Applicable Fee Rate shall be determined in
accordance with the foregoing table based on the Borrower's Status as determined
from its then-current Moody's and S&P Ratings. The credit rating in effect on
any date for the purposes of this Schedule is that in effect at the close of
business on such date. If at any time the Borrower has no ▇▇▇▇▇'▇ Rating or no
S&P Rating, Level VI Status shall exist.
If the Borrower is split-rated and the ratings differential is one level,
the better rating will apply. If the Borrower is split-rated and the ratings
differential is two levels or more, the intermediate rating at the midpoint will
apply. If there is no midpoint, the higher of the intermediate ratings will
apply.
90
SCHEDULE I
COMMITMENTS
Lender Commitments
------ ------------
Bank One, NA $ 43,750,000
KeyBank National Association $ 43,750,000
Fleet National Bank $ 35,000,000
Fifth Third Bank, Western Ohio $ 22,500,000
National City Bank $ 20,000,000
Huntington National Bank $ 20,000,000
Union Bank of California, N.A. $ 15,000,000
Total $200,000,000
91
SCHEDULE 5.7
LITIGATION AND CONTINGENT OBLIGATIONS
92
SECTION 6.13
LIENS
93
EXHIBIT A
FORM OF OPINION
(Attached)
94
EXHIBIT B
COMPLIANCE CERTIFICATE
To: The Lenders party to the
Credit Agreement described below
This Compliance Certificate is furnished pursuant to that certain Revolving
Credit Agreement dated as of December 21, 2001 (as amended, modified, renewed or
extended from time to time, the "Agreement") among DPL Inc. (the "Borrower"),
the lenders party thereto, KeyBank National Association, as Syndication Agent,
and Bank One, NA, as Administrative Agent for the Lenders. Unless otherwise
defined herein, capitalized terms used in this Compliance Certificate have the
meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected of the Borrower;
-----------
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Borrower and its Subsidiaries during the accounting period
covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have
no knowledge of, the existence of any condition or event which constitutes a
Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and computations
evidencing the Borrower's compliance with Section 6.17 of the Agreement, all of
which data and computations are true, complete and correct.
Described on the attached Annex I are the exceptions, if any, to paragraph
3 by listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which the Borrower has taken, is taking, or
proposes to take with respect to each such condition or event.
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this day of , .
---- ---- ----
95
SCHEDULE I TO COMPLIANCE CERTIFICATE
Compliance as of , with
------- ------
Provisions of and of
------- -------
the Agreement
96
EXHIBIT C
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
(the "Assignor") and (the "Assignee") is
------------------- -------------------
dated as of , . The parties hereto agree as follows:
------------------ ----
1. PRELIMINARY STATEMENT. The Assignor is a party to a Revolving Credit
---------------------
Agreement (which, as it may be amended, modified, renewed or extended from time
to time is herein called the "Credit Agreement") described in Item 1 of Schedule
1 attached hereto ("Schedule 1"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings attributed to them in the
Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to the
-------------------------
Assignee, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement relating to the facilities listed in Item 3 of
Schedule 1 and the other Loan Documents. The aggregate Commitment (or Loans, if
the applicable Commitment has been terminated) purchased by the Assignee
hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
--------------
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two Business Days (or such shorter period agreed to by the Administrative
Agent) after a Notice of Assignment substantially in the form of Exhibit "I"
attached hereto has been delivered to the Administrative Agent. Such Notice of
Assignment must include any consents required to be delivered to the
Administrative Agent by Section 12.3.1 of the Credit Agreement. In no event will
the Effective Date occur if the payments required to be made by the Assignee to
the Assignor on the Effective Date under Sections 4 and 5 hereof are not made on
the proposed Effective Date. The Assignor will notify the Assignee of the
proposed Effective Date no later than the Business Day prior to the proposed
Effective Date. As of the Effective Date, (i) the Assignee shall have the rights
and obligations of a Lender under the Loan Documents with respect to the rights
and obligations assigned to the Assignee hereunder and (ii) the Assignor shall
relinquish its rights and be released from its corresponding obligations under
the Loan Documents with respect to the rights and obligations assigned to the
Assignee hereunder.
4. PAYMENT OBLIGATIONS. On and after the Effective Date, the Assignee shall
-------------------
be entitled to receive from the Administrative Agent all payments of principal,
interest and fees with respect to the interest assigned hereby. The Assignee
shall advance funds directly to the Administrative Agent with respect to all
Loans made on or after the Effective Date with respect to the interest assigned
hereby. [In consideration for the sale and assignment of Loans hereunder, (a)
the Assignee shall pay the Assignor, on the Effective Date, an amount equal to
the principal amount of the portion of all Floating Rate Loans assigned to the
Assignee hereunder and (b) with respect to each Eurodollar Rate Loan made by the
Assignor and assigned to the Assignee hereunder which is outstanding on the
Effective Date, on the earliest of (i) the last day of the Interest Period
therefor, (ii) such earlier date agreed to by the Assignor and the Assignee and
(iii)
97
the date on which any such Eurodollar Rate Loan either becomes due (by
acceleration or otherwise) or is prepaid (such earliest date being hereinafter
referred to as the "Payment Date"), the Assignee shall pay the Assignor an
------------
amount equal to the principal amount of the portion of such Eurodollar Rate Loan
assigned to the Assignee which is outstanding on the Payment Date. If the
Assignor and the Assignee agree that the Payment Date for such Eurodollar Rate
Loan shall be the Effective Date, they shall agree on the interest rate
applicable to the portion of such Loan assigned hereunder for the period from
the Effective Date to the end of the existing Interest Period applicable to such
Eurodollar Rate Loan (the "Agreed Interest Rate") and any interest received by
--------------------
the Assignee in excess of the Agreed Interest Rate shall be remitted to the
Assignor. In the event interest for the period from the Effective Date to but
not including the Payment Date is not paid by the Borrower with respect to any
Eurodollar Rate Loan sold by the Assignor to the Assignee hereunder, the
Assignee shall pay to the Assignor interest for such period on the portion of
such Eurodollar Rate Loan sold by the Assignor to the Assignee hereunder at the
applicable rate provided by the Credit Agreement. In the event a prepayment of
any Eurodollar Rate Loan which is existing on the Payment Date and assigned by
the Assignor to the Assignee hereunder occurs after the Payment Date but before
the end of the Interest Period applicable to such Eurodollar Rate Loan, the
Assignee shall remit to the Assignor the excess of the prepayment penalty paid
with respect to the portion of such Eurodollar Rate Loan assigned to the
Assignee hereunder over the amount which would have been paid if such prepayment
penalty was calculated based on the Agreed Interest Rate. The Assignee will also
promptly remit to the Assignor (a) any principal payments received from the
Administrative Agent with respect to Eurodollar Rate Loans prior to the Payment
Date and (b) any amounts of interest on Loans and fees received from the
Administrative Agent which relate to the portion of the Loans or Commitment
assigned to the Assignee hereunder for periods prior to the Effective Date, in
the case of Floating Rate Loans, or the Payment Date, in the case of Eurodollar
Rate Loans, and not previously paid by the Assignee to the Assignor.]/1/ In the
event that either party hereto receives any payment to which the other party
hereto is entitled under this Assignment Agreement, then the party receiving
such amount shall promptly remit it to the other party hereto.
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee agrees to pay % of the
---------------------------- ---
processing fee required to be paid to the Administrative Agent in connection
with this Assignment Agreement pursuant to Section 12.3.2 of the Credit
--------------
Agreement.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
--------------------------------------------------------------
LIABILITY. The Assignor represents and warrants that it is the legal and
---------
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It is
understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor nor
any of its officers, directors, employees, agents or attorneys shall be
responsible for (a) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, including
without limitation, documents granting the Assignor and the other Lenders a
security interest in assets of the Borrower or any guarantor, (b) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (c) the financial condition or creditworthiness of the Borrower
or any guarantor, (d) the performance of or compliance with any of the terms or
provisions of any of the Loan Documents,
----------
/1/ Each Assignor may insert standard payment provisions in lieu of the
foregoing payment terms.
98
(e) inspecting any of the Property, books or records of the Borrower, (f) the
validity, enforceability, perfection, priority, condition, value or sufficiency
of any collateral securing or purporting to secure the Loans or (g) any mistake,
error of judgment, or action taken or omitted to be taken in connection with the
Loans or the Loan Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (a) confirms that it has
-------------------------------
received a copy of the Credit Agreement, together with copies of the financial
statements requested by the Assignee and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Assignment Agreement, (b) agrees that it will, independently and
without reliance upon the Administrative Agent, the Assignor or any other Lender
and based on such documents and information at it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, (c) appoints and authorizes the agent to take such
action as Administrative Agent on its behalf and to exercise such powers under
the Loan Documents as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto, (d)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender, (e) agrees that its payment instructions and notice
instructions are as set forth in the attachment to Schedule 1[,] [and] (e)
confirms that none of the funds, monies, assets or other consideration being
used to make the purchase and assumption hereunder are "plan assets" as defined
under ERISA and that its rights, benefits and interests in and under the Loan
Documents will not be "plan assets" under ERISA [and (f) attaches the forms
prescribed by the Internal Revenue Service of the United States certifying that
the Assignee is entitled to receive payments under the Loan Documents without
deduction or withholding of any United States federal income taxes]./2/
8. INDEMNITY. The Assignee agrees to indemnify and hold harmless the
---------
Assignor against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor
in connection with or arising in any manner from the Assignee's non-performance
of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
----------------------
have the right pursuant to Section 12.3.1 of the Credit Agreement to assign the
--------------
rights which are assigned to the Assignee hereunder to any entity or person,
provided that (a) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (b) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under Sections 4, 5 and 8 hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the Aggregate
----------------------------------
Commitment occurs between the date of this Assignment Agreement and the
Effective
----------
/2/ To be inserted if the Assignee is not incorporated under the laws of the
United States, or a state thereof.
99
Date, the percentage interest specified in Item 3 of Schedule 1 shall remain the
same, but the dollar amount purchased shall be recalculated based on the reduced
Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice of
----------------
Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by the
-------------
internal law, and not the law of conflicts, of the State of Illinois.
13. NOTICES. Notices shall be given under this Assignment Agreement in the
-------
manner set forth in the Credit Agreement. For the purpose hereof, the addresses
of the parties hereto (until notice of a change is delivered) shall be the
addresses set forth in the attachment to Schedule 1.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By:
-----------------------------
Title:
--------------------------
[NAME OF ASSIGNEE]
By:
-----------------------------
Title:
--------------------------
100
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement: Revolving Credit Agreement, dated
as of December 21, 2001, by and among DPL Inc., the lenders party thereto,
KeyBank National Association, as Syndication Agent, and Bank One, NA, as
Administrative Agent thereunder.
2. Date of Assignment Agreement: ,
-------------
3. Amounts (As of Date of Item 2 above):
. Total of Commitments*
under Credit Agreement $
. Assignee's Percentage of ----------------------
the facility purchased
under the Assignment
Agreement** %
. Amount of -------
Assigned Share in the
facility purchased under
the Assignment
Agreement $
4. Assignee's Aggregate ----------------------
Commitment Amount*
Purchased Hereunder: $
5. Proposed Effective ----------------------
Date:
Accepted and Agreed: ----------, -------
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
-------------------------------- ----------------------------------
Title: Title:
----------------------------- -------------------------------
* If a Commitment has been terminated, insert outstanding Loans in place of
Commitment.
** Percentage taken to 10 decimal places.
101
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
--------------------------------
Attach Assignor's Administrative Information Sheet, which must
include notice addresses for the Assignor and the Assignee
102
EXHIBIT I
to Assignment Agreement
NOTICE
OF ASSIGNMENT
[DATE]
To: [DPL, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇]*
Bank One, NA
as Administrative Agent
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Facsimile:
Confirmation:
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Revolving Credit Agreement (the "Credit Agreement")
described in Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and delivered to DPL
Inc. (the "Borrower") and the Administrative Agent pursuant to Section 12.3.2 of
the Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment Agreement,
dated as of [DATE] (the "Assignment"), pursuant to which, among other things,
the Assignor has sold, assigned, delegated and transferred to the Assignee, and
the Assignee has purchased, accepted and assumed from the Assignor the
percentage interest specified in Item 3 of Schedule 1 of all outstandings,
rights and obligations under the Credit Agreement relating to the facilities
listed in Item 3 of Schedule 1. The Effective Date of the Assignment shall be
the later of the date specified in Item 5 of Schedule 1 or two Business Days (or
such shorter period as agreed to by the Administrative Agent) after this Notice
of Assignment and any consents and fees required by Sections 12.3.1 and 12.3.2
of the Credit Agreement have been delivered to the Administrative Agent,
provided that the Effective Date shall not occur if any condition precedent
agreed to by the Assignor and the Assignee has not been satisfied.
* To be included only if consent must be obtained from the Borrower pursuant
to Section 12.3.1 of the Credit Agreement.
4. The Assignor and the Assignee hereby give to the Borrower and the
Administrative Agent notice of the assignment and delegation referred to herein.
The Assignor will confer with the Administrative Agent before the date specified
in Item 5 of Schedule 1 to determine if the Assignment Agreement will become
effective on such date pursuant to Section 3 hereof, and will confer with the
103
Administrative Agent to determine the Effective Date pursuant to Section 3
hereof if it occurs thereafter. The Assignor shall notify the Administrative
Agent if the Assignment Agreement does not become effective on any proposed
Effective Date as a result of the failure to satisfy the conditions precedent
agreed to by the Assignor and the Assignee. At the request of the Administrative
Agent, the Assignor will give the Administrative Agent written confirmation of
the satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Administrative Agent on or
before the Effective Date the processing fee of $4,000 required by Section
12.3.2 of the Credit Agreement.
6. If Notes are outstanding on the Effective Date, the Assignor and the
Assignee request and direct that the Administrative Agent prepare and cause the
Borrower to execute and deliver new Notes or, as appropriate, replacement notes,
to the Assignor and the Assignee. The Assignor and, if applicable, the Assignee
each agree to deliver to the Administrative Agent the original Note received by
it from the Borrower upon its receipt of a new Note in the appropriate amount.
7. The Assignee advises the Administrative Agent that notice and payment
instructions are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the funds,
monies, assets or other consideration being used to make the purchase pursuant
to the Assignment are "plan assets" as defined under ERISA and that its rights,
benefits, and interests in and under the Loan Documents will not be "plan
assets" under ERISA.
9. The Assignee authorizes the Administrative Agent to act as its
Administrative Agent under the Loan Documents in accordance with the terms
thereof. The Assignee acknowledges that the Administrative Agent has no duty to
supply information with respect to the Borrower or the Loan Documents to the
Assignee until the Assignee becomes a party to the Credit Agreement.*
*May be eliminated if Assignee is a party to the Credit Agreement prior to
the Effective Date.
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
-------------------------------- ----------------------------------
Title: Title:
----------------------------- -------------------------------
ACKNOWLEDGED AND [ACKNOWLEDGED AND
CONSENTED TO BY BANK ONE, CONSENTED TO BY DPL INC., AS
NA, AS ADMINISTRATIVE AGENT BORROWER]
By: By:
-------------------------------- ----------------------------------
Title: Title:
----------------------------- -------------------------------
Attach photocopy of Schedule 1 to Assignment
104
EXHIBIT D
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To: Bank One, NA,
as Administrative Agent (the "Administrative Agent") under the
Credit Agreement described below.
Re: Revolving Credit Agreement, dated as of December 21, 2001 (as the
same may be amended or modified, the "Credit Agreement"), among DPL
Inc. (the "Borrower"), the Lenders named therein, the Syndication
Agent and the Administrative Agent. Capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned
thereto in the Credit Agreement.
The Administrative Agent is specifically authorized and directed to act
upon the following standing money transfer instructions with respect to the
proceeds of Advances or other extensions of credit from time to time until
receipt by the Administrative Agent of a specific written revocation of such
instructions by the Borrower, provided, however, that the Administrative Agent
may otherwise transfer funds as hereafter directed in writing by the Borrower in
accordance with Section 13.1 of the Credit Agreement or based on any telephonic
notice made in accordance with Section 2.14 of the Credit Agreement.
Facility Identification Number(s)
--------------------------------------------
Customer/Account Name
--------------------------------------------
Transfer Funds To
--------------------------------------------
For Account No:
--------------------------------------------
Reference/Attention To
--------------------------------------------
Authorized Officer (Customer Representative): Date
----------------------------
-------------------------------------- ----------------------------------
(Please Print) Signature
Bank Officer Name Date
----------------------------
-------------------------------------- ----------------------------------
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
105
EXHIBIT E
NOTE
$ [DATE]
--------------------
DPL INC., an Ohio corporation (the "Borrower"), promises to pay to the
order of (the "Lender") the lesser of the
------------------------------------
principal sum of Dollars ($ ) or
------------------------------ ---------------
the aggregate unpaid principal amount of all Loans made by the Lender to the
Borrower pursuant to Article II of the Agreement (as hereinafter defined), in
immediately available funds at the main office Bank One, NA, in Chicago,
Illinois, as Administrative Agent, together with interest on the unpaid
principal amount hereof at the rates and on the dates set forth in the
Agreement. The Borrower shall pay the principal of and accrued and unpaid
interest on the Loans in full on the Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to the
benefits of, the Revolving Credit Agreement dated as of December 21, 2001
(which, as it may be amended or modified and in effect from time to time, is
herein called the "Agreement"), among the Borrower, the lenders party thereto,
including the Lender, KeyBank National Association, as Syndication Agent, and
Bank One, NA, as Administrative Agent, to which Agreement reference is hereby
made for a statement of the terms and conditions governing this Note, including
the terms and conditions under which this Note may be prepaid or its maturity
date accelerated. Capitalized terms used herein and not otherwise defined herein
are used with the meanings attributed to them in the Agreement.
DPL INC.
By:
-------------------------------------------
Name:
----------------------
Title:
---------------------
106
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF DPL INC.,
DATED ,
----------- -----------
Date Principal Maturity of Principal Unpaid
Amount of Interest Amount Paid Balance
Loan Period
107