$300,000,000
CREDIT AGREEMENT
dated as of
December 1, 1999
among
SCANA CORPORATION,
The Banks Listed Herein
FIRST UNION NATIONAL BANK,
as Syndication Agent
THE BANK OF NEW YORK,
as Documentation Agent
BANK OF AMERICA, N.A.,
as Co-Agent
SUNTRUST BANK, ATLANTA,
as Co-Agent
and
WACHOVIA BANK, N.A.,
as Administrative Agent
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WACHOVIA SECURITIES, INC.,
As Lead and Sole Arranger
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS
SECTION 1.01 Definitions......................................................1
SECTION 1.02 Accounting Terms and Determinations.............................15
SECTION 1.03 Use of Defined Terms............................................15
SECTION 1.04 Terminology.....................................................15
SECTION 1.05 References......................................................15
ARTICLE II.
THE CREDITS
SECTION 2.01 Commitments to Make Loans.......................................16
SECTION 2.02 Method of Conversion and Continuation...........................16
SECTION 2.03 Notes...........................................................17
SECTION 2.04 Repayment and Maturity of Loans.................................18
SECTION 2.05 Interest Rates..................................................18
SECTION 2.06 Fees............................................................20
SECTION 2.07 Optional Prepayments............................................20
SECTION 2.08 Mandatory Prepayments...........................................20
SECTION 2.09 General Provisions as to Payments...............................21
SECTION 2.10 Computation of Interest and Fees................................23
ARTICLE III.
CONDITIONS TO LOANS
SECTION 3.01 Conditions to Closing...........................................23
SECTION 3.02 Conditions to Funding...........................................25
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Corporate Existence and Power...................................26
SECTION 4.02 Corporate and Governmental Authorization; No Contravention......26
SECTION 4.03 Binding Effect..................................................27
SECTION 4.04 Financial Information...........................................27
SECTION 4.05 Litigation......................................................27
SECTION 4.06 Compliance with ERISA...........................................27
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SECTION 4.07 Taxes...........................................................28
SECTION 4.08 Subsidiaries....................................................28
SECTION 4.09 Not an Investment Company.......................................28
SECTION 4.10 Public Utility Holding Company Act..............................28
SECTION 4.11 Ownership of Property; Liens....................................28
SECTION 4.12 No Default......................................................29
SECTION 4.13 Full Disclosure.................................................29
SECTION 4.14 Environmental Matters...........................................29
SECTION 4.15 Compliance with Laws............................................30
SECTION 4.16 Capital Stock...................................................30
SECTION 4.17 Margin Stock....................................................30
SECTION 4.18 Insolvency......................................................30
SECTION 4.19 Insurance.......................................................30
SECTION 4.20 Compliance with Year 2000 Plan..................................30
ARTICLE V.
COVENANTS
SECTION 5.01 Information.....................................................31
SECTION 5.02 Inspection of Property, Books and Records.......................32
SECTION 5.03 Maintenance of Existence........................................33
SECTION 5.04 Dissolution.....................................................33
SECTION 5.05 Use of Proceeds.................................................33
SECTION 5.06 Compliance with Laws; Payment of Taxes..........................33
SECTION 5.07 Insurance.......................................................33
SECTION 5.08 Maintenance of Property.........................................34
SECTION 5.09 Environmental Notices...........................................34
SECTION 5.10 Environmental Matters...........................................34
SECTION 5.11 Environmental Release...........................................34
SECTION 5.12 Restricted Payments.............................................34
SECTION 5.13 Loans or Advances...............................................34
SECTION 5.14 Acquisitions....................................................35
SECTION 5.15 Investments.....................................................35
SECTION 5.16 Negative Pledge.................................................35
SECTION 5.17 Consolidations, Mergers and Sales of Assets.....................37
SECTION 5.18 Change in Fiscal Year...........................................37
SECTION 5.19 Compliance with ERISA...........................................37
SECTION 5.20 Maintenance of Ratings..........................................37
SECTION 5.21 Transactions with Affiliates....................................37
SECTION 5.22 Ratio of Consolidated Total Debt to Consolidated
Total Capitalization............................................38
SECTION 5.23 Minimum Interest Coverage Ratio.................................38
SECTION 5.24 Subsidiaries....................................................38
SECTION 5.25 Public Utility Holding Company Act..............................38
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ARTICLE VI.
DEFAULTS
SECTION 6.01 Events of Default...............................................38
SECTION 6.02 Notice of Default...............................................41
ARTICLE VII.
THE ADMINISTRATIVE AGENT
SECTION 7.01 Appointment, Powers and Immunities..............................41
SECTION 7.02 Reliance by Administrative Agent................................42
SECTION 7.03 Defaults........................................................42
SECTION 7.04 Rights of Administrative Agent and its Affiliates as a Bank.....42
SECTION 7.05 Indemnification.................................................43
SECTION 7.06 Consequential Damages...........................................43
SECTION 7.07 Payee of Note Treated as Owner..................................43
SECTION 7.08 Non-Reliance on Administrative Agent and Other Banks............43
SECTION 7.09 Failure to Act..................................................44
SECTION 7.10 Resignation or Removal of Administrative Agent..................44
ARTICLE VIII.
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01 Basis for Determining Interest Rate Inadequate or Unfair........44
SECTION 8.02 Illegality......................................................45
SECTION 8.03 Increased Cost and Reduced Return...............................45
SECTION 8.04 Conversion of Affected Euro-Dollar Loans to Base Rate Loans.....46
SECTION 8.05 Compensation....................................................47
ARTICLE IX.
MISCELLANEOUS
SECTION 9.01 Notices.........................................................47
SECTION 9.02 No Waivers......................................................48
SECTION 9.03 Expenses; Documentary Taxes; Indemnification....................48
SECTION 9.04 Setoffs; Sharing of Set-Offs....................................49
SECTION 9.05 Amendments and Waivers..........................................49
SECTION 9.06 Margin Stock Collateral.........................................50
SECTION 9.07 Successors and Assigns..........................................50
SECTION 9.08 Confidentiality.................................................52
SECTION 9.09 Representation by Banks.........................................52
SECTION 9.10 Obligations Several.............................................52
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SECTION 9.11 Survival of Certain Obligations.................................53
SECTION 9.12 Georgia Law.....................................................53
SECTION 9.13 Severability....................................................53
SECTION 9.14 Interest........................................................53
SECTION 9.15 Interpretation..................................................53
SECTION 9.16 Consent to Jurisdiction.........................................53
SECTION 9.17 Counterparts....................................................53
EXHIBIT A Form of Note
EXHIBIT B Form of Opinion of Counsel for the Borrower
EXHIBIT C Form of Opinion of Special Counsel for the Administrative Agent
EXHIBIT D Form of Closing Certificate
EXHIBIT E Form of Secretary's Certificate
EXHIBIT F Form of Compliance Certificate
EXHIBIT G Form of Assignment and Acceptance
EXHIBIT H Form of Interest Rate Election Notice
EXHIBIT I Form of Notice of Borrowing
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of December 1, 1999 among SCANA CORPORATION,
a South Carolina corporation, the BANKS listed on the signature pages hereof,
FIRST UNION NATIONAL BANK, as Syndication Agent, THE BANK OF NEW YORK, as
Documentation Agent, BANK OF AMERICA, N.A., as Co-Agent, SUNTRUST BANK, ATLANTA,
as Co-Agent, and WACHOVIA BANK, N.A., as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01 Definitions. The terms as defined in this Section 1.01 shall,
for all purposes of this Agreement and any amendment hereto (except as herein
otherwise expressly provided or unless the context otherwise requires), have the
meanings set forth herein:
"Acquisition" means any transaction pursuant to which the Borrower or any
of its Subsidiaries directly or indirectly, in its own name or by or through a
nominee or an agent (a) acquires from any Person other than a Wholly Owned
Subsidiary equity Securities (or warrants, options or other rights to acquire
such Securities) of any Person other than the Borrower or any Person which is
not then a Subsidiary of the Borrower, pursuant to a solicitation of tenders
therefor, or in one or more negotiated block, market or other transactions not
involving a tender offer, or a combination of any of the foregoing, or (b) makes
any Person (other than a Wholly Owned Subsidiary) a Subsidiary of the Borrower,
or causes any Person (other than a Wholly Owned Subsidiary) to be merged into
the Borrower or any of its Subsidiaries, in any case pursuant to a merger,
purchase of assets or any reorganization providing for the delivery or issuance
to the holders of such Person's then outstanding Securities, in exchange for
such Securities, of cash or Securities of the Borrower or any of its
Subsidiaries, or a combination thereof, or (c) purchases from any Person other
than a Wholly Owned Subsidiary all or substantially all of the business or
assets of any Person; provided that, notwithstanding the foregoing, the
formation and capitalization of a Wholly Owned Subsidiary shall not constitute
an Acquisition.
"Additional Trust Preferred Securities" means any trust preferred
securities issued after the Closing Date by any Subsidiary having no voting
rights exerciseable on or before the Maturity Date and issued in connection with
a financing arrangement generally structured in a manner similar to the
financing in connection with which the Trust Preferred Securities were issued.
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.05(c).
"Affiliate" of any Person means (i) any other Person which directly, or
indirectly through one or more intermediaries, controls such Person, (ii) any
other Person which directly, or indirectly through one or more intermediaries,
is controlled by or is under common control with such Person, or (iii) any other
Person of which such Person owns, directly or indirectly, 20% or more of the
common stock or equivalent equity interests. As used herein, the term "control"
means possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Administrative Agent" means Wachovia Bank, N.A., a national banking
association organized under the laws of the United States of America, in its
capacity as administrative agent for the Banks hereunder, and its successors and
permitted assigns in such capacity.
"Administrative Agent's Letter Agreement" means that certain letter
agreement, dated October 1, 1999, among the Borrower, the Administrative Agent
and the Arranger relating to the structure of the Loans, and certain fees from
time to time payable by the Borrower to the Administrative Agent and the
Arranger, together with all amendments and modifications thereto.
"Agreement" means this Credit Agreement, together with all amendments and
supplements hereto.
"Applicable Margin" has the meaning set forth in Section 2.05(a).
"Arranger" means Wachovia Securities, Inc., together with its successors
and assigns.
"Assignee" has the meaning set forth in Section 9.07(c).
"Assignment and Acceptance" means an Assignment and Acceptance executed in
accordance with Section 9.07(c) in the form attached hereto as Exhibit G.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof as having a
Commitment, and its successors and permitted assigns.
"Base Rate" means for any Base Rate Loan for any day, the rate per annum
equal to the higher as of such day of (i) the Prime Rate, and (ii) one-half of
one percent above the Federal Funds Rate for such day. For purposes of
determining the Base Rate for any day, changes in the Prime Rate and the Federal
Funds Rate shall be effective on the date of each such change.
"Base Rate Loan" means a Loan that bears or is to bear interest at a rate
based upon the Base Rate.
"BONY Indenture" means the Indenture dated as of November 1, 1989 from the
Borrower to The Bank of New York, as trustee, as it may hereafter be amended and
supplemented.
"Borrower" means SCANA Corporation, a South Carolina corporation, and its
successors and permitted assigns.
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"Capital Stock" means any nonredeemable capital stock of the Borrower or
any Consolidated Subsidiary (to the extent issued to a Person other than the
Borrower), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response Compensation and
Liability Act, 42 U.S.C.ss.9601 et seq. and its implementing regulations and
amendments.
"CERCLIS" means the Comprehensive Environmental Response Compensation and
Liability Information System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section 8.02.
"Closing Certificate" has the meaning set forth in Section 3.01(e).
"Closing Date" means December 15, 1999.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code. Any reference to any provision of the Code shall
also be deemed to be a reference to any successor provision or provisions
thereof.
"Commitment" means, with respect to each Bank, (i) the amount set forth
opposite the name of such Bank on the signature pages hereof, or (ii) as to any
Bank which enters into an Assignment and Acceptance (whether as transferor Bank
or as Assignee thereunder), the amount of such Bank's Commitment after giving
effect to such Assignment and Acceptance.
"Compliance Certificate" has the meaning set forth in Section 5.01(c).
"Consolidated EBITDA" for any period means the sum of (i) Consolidated Net
Income for such period; (ii) Consolidated Interest Expense for such period,
(iii) taxes on income of the Borrower and its Consolidated Subsidiaries for such
period to the extent deducted in determining Consolidated Net Income for such
period, (iv) Depreciation for such period and (v) amortization of intangible
assets of the Borrower and its Consolidated Subsidiaries for such period. In
determining Consolidated EBITDA for any period, (a) any Consolidated Subsidiary
acquired during such period by the Borrower or any other Consolidated Subsidiary
shall be included on a pro forma, historical basis as if it had been a
Consolidated Subsidiary during such entire period and (b) any amounts which
would be included in a determination of Consolidated EBITDA for such period with
respect to assets acquired during such period by the Borrower or any
Consolidated Subsidiary shall be included in the determination of Consolidated
EBITDA for such period and the amount thereof shall be calculated on a pro
forma, historical basis as if such assets had been acquired by the Borrower or
such Consolidated Subsidiary prior to the first day of such period.
"Consolidated Interest Expense" for any period means interest, whether
expensed or capitalized, in respect of Debt of the Borrower or any of its
Consolidated Subsidiaries outstanding during such period.
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"Consolidated Net Income" means, for any period, the Net Income of the
Borrower and its Consolidated Subsidiaries determined on a consolidated basis,
but excluding (i) extraordinary items and (ii) any equity interests of the
Borrower or any Subsidiary in the unremitted earnings of any Person that is not
a Subsidiary.
"Consolidated Operating Profits" means, for any period, the Operating
Profits of the Borrower and its Consolidated Subsidiaries.
"Consolidated Subsidiary" means at any date any Subsidiary or other entity
the accounts of which, in accordance with GAAP, would be consolidated with those
of the Borrower in its consolidated financial statements as of such date.
"Consolidated Total Assets" means, at any time, the total assets of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis,
as set forth or reflected on the most recent consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries, prepared in accordance with GAAP.
"Consolidated Total Capitalization" means, at any time, the sum of (i)
Stockholders' Equity, plus (ii) Consolidated Total Debt.
"Consolidated Total Debt" means at any date the Debt of the Borrower and
its Consolidated Subsidiaries, determined on a consolidated basis as of such
date.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower, are treated as a single employer under
Section 414 of the Code.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee under capital leases,
(v) all obligations of such Person to reimburse any bank or other Person in
respect of amounts payable under a banker's acceptance, (vi) all Redeemable
Preferred Stock of such Person, (vii) all obligations (absolute or contingent)
of such Person to reimburse any bank or other Person in respect of amounts paid
under a letter of credit or similar instrument, (viii) all Debt of others
secured by a Lien on any asset of such Person, whether or not such Debt is
assumed by such Person, (ix) all Debt of others Guaranteed by such Person, and
(x) all obligations of such Person with respect to interest rate protection
agreements, foreign currency exchange agreements or other hedging agreements
(valued as the termination value thereof computed in accordance with a method
approved by the International Swap Dealers Association and agreed to by such
Person in the applicable hedging agreement, if any).
"Debt Rating" means a public rating by the respective Rating Agencies of
the Borrower's Senior Debt. If the Borrower does not have any Senior Debt (other
than the Borrower's obligations
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under this Agreement and the Notes), the Debt Rating shall be determined on the
basis of a credit rating, made as aforesaid, of the Borrower's obligations under
this Agreement and the Notes.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived in writing, become an Event of Default.
"Default Rate" means, with respect to any Loan, on any day, the sum of 2%
plus the then highest interest rate (including the Applicable Margin) which may
be applicable to any Loans hereunder (irrespective of whether any such type of
Loans are actually outstanding hereunder).
"Depreciation" means for any period the sum of all depreciation expenses of
the Borrower and its Consolidated Subsidiaries for such period, as determined in
accordance with GAAP.
"Dollars" or "$" means dollars in lawful currency of the United States of
America.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in Georgia are authorized or required by law to
close.
"Environmental Authority" means any foreign, federal, state, local or
regional government that exercises any form of jurisdiction or authority under
any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits, orders,
approvals, notices, registrations or other legal prerequisites for conducting
the business of the Borrower or any Subsidiary required by any Environmental
Requirement.
"Environmental Judgments and Orders" means all judgments, decrees or orders
arising from or in any way associated with any Environmental Requirements,
whether or not entered upon consent or written agreements with an Environmental
Authority or other entity arising from or in any way associated with any
Environmental Requirement, whether or not incorporated in a judgment, decree or
order.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment, including, without limitation, ambient air, surface water,
groundwater or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"Environmental Liabilities" means any liabilities, whether accrued,
contingent or otherwise, arising from and in any way associated with any
Environmental Requirements.
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"Environmental Notices" means notice from any Environmental Authority or by
any other person or entity, of possible or alleged noncompliance with or
liability under any Environmental Requirement, including without limitation any
complaints, citations, demands or requests from any Environmental Authority or
from any other person or entity for correction of any violation of any
Environmental Requirement or any investigations concerning any violation of any
Environmental Requirement.
"Environmental Proceedings" means any judicial or administrative
proceedings arising from or in any way associated with any Environmental
Requirement.
"Environmental Releases" means releases as defined in CERCLA or under any
applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement relating to
health, safety or the environment and applicable to the Borrower, any Subsidiary
or the Properties, including but not limited to any such requirement under
CERCLA or similar state legislation and all federal, state and local laws,
ordinances, regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor law. Any reference to any provision
of ERISA shall also be deemed to be a reference to any successor provision or
provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Euro-Dollar Loan" means a Loan that bears or is to bear interest at a rate
based upon the London Interbank Offered Rate.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.05(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Excluded Borrower Debt" means (a) the Public Notes, (b) if the Public
Notes are scheduled to mature prior to the Maturity Date, any Debt issued or
incurred by the Borrower after the Closing Date to the extent that the proceeds
of such Debt are used to refinance the Public Notes, (c) any Debt issued or
incurred by the Borrower after the Closing Date (other than Debt described in
clause (a) or (b) of this definition) solely for the purpose of refinancing Debt
of the Borrower then outstanding under the 1989 Indenture which is then
maturing, (d) amounts outstanding under committed bank lines of credit provided
by Wachovia or Bank of America, N.A. to the extent that the aggregate principal
amount at any one time outstanding under such lines of credit shall not exceed
$100,000,000, (e) amounts (i) outstanding under uncommitted bank lines of credit
or (ii) evidenced by commercial paper having a maturity of 270 days or less, to
the extent that the aggregate principal amount at any one time outstanding under
such lines of credit or evidenced by such commercial paper shall not exceed
$130,000,000, (f) guaranties by the Borrower of (i) obligations of SCANA Energy
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Trading LLC outstanding from time to time in the maximum amount of $70,000,000,
(ii) the $52,600,000 principal amount of South Carolina Generating Company, Inc.
7.78% Senior Secured Notes due December 31, 2011 and $35,850,000 principal
amount 6.5% Pollution Control Facilities Revenue Bonds and (iii) any Debt
incurred to the extent that the proceeds of such Debt are used to refinance or
refund the Debt described in the immediately preceding clause (ii), (g) Debt of
the Borrower not in excess of $5,000,000 in respect of letters of credit
delivered in support of Primesouth, Inc. to support the ability of Primesouth,
Inc. to bid on contracts, and (h) Debt issued or incurred by the Borrower after
the Closing Date (in addition to Debt described in clauses (a) through (g),
inclusive, of this definition) in an aggregate principal amount not to exceed
$150,000,000.
"Excluded Borrower Stock" means Stock of the Borrower, newly issued or
purchased on the open market, as the case may be, which Stock has been issued or
purchased (i) for the Borrower's employee benefit plans or for the SCANA
Investor Plus Plan with an aggregate market value not to exceed $125,000,000 in
any Fiscal Year or (ii) in connection with the Mergers (as defined in the Merger
Agreement).
"Excluded Sales" means the sale of any assets by the Borrower or any
Subsidiary (i) in the ordinary course of its business, (ii) to any Wholly Owned
Subsidiary, or (iii) to the extent any such sale does not exceed $500,000.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the next higher 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if the day for which such rate is to
be determined is not a Domestic Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds Rate for
such day shall be the average rate charged to Wachovia on such day on such
transactions as determined by the Administrative Agent.
"First Payment Date" means the date which is the second anniversary of the
Term Loan Draw Date.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"GAAP" means generally accepted accounting principles applied on a basis
consistent with those which, in accordance with Section 1.02, are to be used in
making the calculations for purposes of determining compliance with the terms of
this Agreement.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt or other obligation of
any other Person and, without
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limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of such Person (i) to secure, purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or other
obligation (whether arising by virtue of partnership arrangements, by agreement
to keep-well, to purchase assets, goods, securities or services, to provide
collateral security, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part), provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Hazardous Materials" includes, without limitation, (a) solid or hazardous
waste, as defined in the Resource Conservation and Recovery Act of 1980, 42
U.S.C. ss.6901 et seq. and its implementing regulations and amendments, or in
any applicable state or local law or regulation, (b) any "hazardous substance",
"pollutant" or "contaminant", as defined in CERCLA, or in any applicable state
or local law or regulation, (c) gasoline, or any other petroleum product or
by-product, including crude oil or any fraction thereof, (d) toxic substances,
as defined in the Toxic Substances Control Act of 1976, or in any applicable
state or local law or regulation and (e) insecticides, fungicides, or
rodenticides, as defined in the Federal Insecticide, Fungicide, and Rodenticide
Act of 1975, or in any applicable state or local law or regulation, as each such
Act, statute or regulation may be amended from time to time.
"Interest Period" means: (1) with respect to each Euro-Dollar Loan, the
period commencing on the date that such Euro-Dollar Loan is first made,
converted or continued and ending on the numerically corresponding day in the
first, second, third or sixth month thereafter, as the Borrower may elect;
provided that:
(a) any Interest Period (subject to clause (c) below) which would
otherwise end on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Euro-Dollar Business
Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall,
subject to clause (c) below, end on the last Euro-Dollar Business Day of
the appropriate subsequent calendar month; and
(c) no Interest Period may be selected which begins before a Maturity
Date and would otherwise end after such Maturity Date, if the principal
amount of such Euro-Dollar Loan is due and payable on such Maturity Date.
(2) with respect to each Base Rate Loan, the period commencing on the date
that such Base Rate Loan is made, converted or continued and ending 30 days
thereafter; provided that:
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(a) any Interest Period (subject to clause (b) below) which would
otherwise end on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day; and
(b) no Interest Period may be selected which begins before a Maturity
Date and would otherwise end after such Maturity Date, if the principal
amount of such Base Rate Loan is due and payable on such Maturity Date.
"Interest Rate Election Notice" means a duly completed notice substantially
in the form of Exhibit H, or such other form as the Administrative Agent may
from time to time approve for use by the Borrower in choosing the interest rate
applicable to the Loans as provided in this Agreement.
"Investment" means any investment in any Person, whether by means of
purchase or acquisition of obligations or securities of such Person, capital
contribution to such Person, loan or advance to such Person, making of a time
deposit with such Person, Guarantee or assumption of any obligation of such
Person or otherwise.
"Lending Office" means, as to each Bank, its office located at its address
set forth on the signature pages hereof (or identified on the signature pages
hereof as its Lending Office) or such other office as such Bank may hereafter
designate as its Lending Office by notice to the Borrower and the Administrative
Agent.
"Lien" means, with respect to any asset, any mortgage, deed to secure debt,
deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, servitude or encumbrance of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For the
purposes of this Agreement, the Borrower or any Subsidiary shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"Loans" means the loans made to the Borrower by the Banks pursuant to
Section 2.01.
"Loan Documents" means this Agreement, the Notes, any other document
evidencing, relating to or securing the Loans, and any other document or
instrument delivered from time to time in connection with this Agreement, the
Notes or the Loans, as such documents and instruments may be amended or
supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in Section
2.05(c).
"Margin Stock" means "margin stock" as defined in Regulation T, U or X of
the Board of Governors of the Federal Reserve System, as in effect from time to
time, together with all official rulings and interpretations issued thereunder.
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"Material Adverse Effect" means, with respect to any event, act, condition
or occurrence of whatever nature (including any adverse determination in any
litigation, arbitration, or governmental investigation or proceeding), whether
singly or in conjunction with any other event or events, act or acts, condition
or conditions, occurrence or occurrences, whether or not related, a material
adverse change in, or a material adverse effect upon, any of (a) the financial
condition, operations, business, properties or prospects of the Borrower and its
Consolidated Subsidiaries taken as a whole, (b) the rights and remedies of the
Administrative Agent or the Banks under the Loan Documents, or the ability of
the Borrower to perform its obligations under the Loan Documents to which it is
a party, as applicable, or (c) the legality, validity or enforceability of any
Loan Document.
"Material Subsidiary" means, at any time, any Subsidiary of the Borrower
with total assets that equal or exceed five percent (5%) of Consolidated Total
Assets.
"Maturity Date" means the date which is the third anniversary of the Term
Loan Draw Date.
"Merger Agreement" means the Amended and Restated Agreement and Plan of
Merger by and among PSNC, the Borrower, New Sub I and New Sub II dated as of
February 16, 1999 and Amended and Restated as of May 10, 1999, as further
amended pursuant to any instrument which has been approved in writing by the
Administrative Agent and the Required Banks.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in Section 4001(a)(3)
of ERISA.
"Net Disposition Proceeds" means the aggregate proceeds received by the
Borrower or a Subsidiary upon the disposition of any property (whether real,
personal, mixed, tangible or intangible, including, without limitation, Stock),
after deducting from the amount of such proceeds the sum of:
(a) all reasonable and customary costs and expenses incurred by the
Borrower or such Subsidiary directly in connection with such disposition;
(b) all amounts actually set aside as a reserve, in accordance with GAAP,
against any liabilities under any indemnification obligations associated with
such disposition;
(c) all taxes actually paid or payable by the Borrower or such Subsidiary
as a result of gain recognized in connection with the sale of such property; and
(d) any amount actually paid by the Borrower or such Subsidiary to
discharge, or cause the discharge of, any Lien on such property (to the extent
such Lien was permitted by this Agreement).
"Net Income" means, as applied to any Person for any period, the aggregate
amount of net income of such Person, after taxes, for such period, as determined
in accordance with GAAP.
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"Net Proceeds of Debt" means any proceeds received by the Borrower in
respect of the incurrence or the private or public issuance of Debt of the
Borrower (other than Excluded Borrower Debt) after deducting therefrom all
reasonable and customary costs and expenses incurred by the Borrower directly in
connection with the incurrence or issuance of such Debt.
"Net Proceeds of Stock" means any proceeds received by the Borrower in
respect of the private or public issuance of stock, membership interest or other
equity interest of the Borrower (other than Excluded Borrower Stock), after
deducting therefrom all reasonable and customary costs and expenses incurred by
the Borrower directly in connection with the issuance of such stock, membership
interest or other equity interest.
"New Sub I" means New Sub I, Inc., a South Carolina corporation.
"New Sub II" means New Sub II, Inc., a South Carolina corporation.
"1989 Indenture" means that certain Indenture dated as of November 1, 1989
from the Borrower to The Bank of New York, Trustee.
"Note" has the meaning set forth in Section 2.03(a).
"Notice of Borrowing" means a notice, in the form attached as Exhibit I,
delivered by the Borrower to the Administrative Agent in connection with the
borrowing of the Loans as provided in Section 3.02(a).
"Officer's Certificate" has the meaning set forth in Section 3.01(f).
"Operating Profits" means, as applied to any Person for any period, the
operating income of such Person for such period, as determined in accordance
with GAAP.
"Participant" has the meaning set forth in Section 9.07(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Acquisition" means (a) any Acquisition (i) which is of a Person
engaged in the same or similar line or lines of business as the Borrower or any
Consolidated Subsidiaries, (ii) which has been approved by the Board of
Directors of the Person to be acquired in connection with such Acquisition, and
(iii) where the aggregate consideration paid by or on behalf of the Borrower or
any Subsidiary in respect of such Acquisition does not exceed $100,000,000; and
(b) the Mergers (as defined in the Merger Agreement).
"Permitted Redemptions" means the redemption of (a) Preferred Stock (to the
extent such Preferred Stock is redeemable) and (b) Trust Preferred Securities;
provided that the amount of such redemptions shall not exceed $65,000,000 in the
aggregate.
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"Person" means an individual, a corporation, a limited liability company, a
partnership (including without limitation, a joint venture), an unincorporated
association, a trust or any other entity or organization, including, but not
limited to, a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time 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 and is either (i) maintained by a member of the Controlled Group
for employees of any member of the Controlled Group or (ii) maintained pursuant
to a collective bargaining agreement or any other arrangement under which more
than one employer makes contributions and to which a member of the Controlled
Group is then making or accruing an obligation to make contributions or has
within the preceding 5 plan years made contributions.
"Preferred Stock" means publicly-held preferred stock of SCE&G issued and
outstanding prior to the Closing Date.
"Pricing Level" means the Pricing Level corresponding to the applicable
Debt Rating as set forth below:
Pricing Level Debt Rating
Level I higher than BBB+/Baa1
Level II equal to BBB+/Baa1
Level III equal to BBB/Baa2
Level IV equal to BBB-/Baa3
Level V lower than BBB-/Baa3 or not rated
In the event that the Debt Ratings issued by S&P and Moody's do not correspond
to the same Pricing Level and (i) the Debt Ratings are no more than one Pricing
Level apart, then the higher Debt Rating shall be the Debt Rating for the
purposes of this definition or (ii) the Debt Ratings are more than one Pricing
Level apart, then the Debt Rating corresponding to the Pricing Level that is one
Pricing Level higher (Pricing Level I being the highest) than the Pricing Level
that corresponds with the lower of the two Debt Ratings shall be the Debt Rating
for the purposes of this definition. Adjustments, if any, in the Pricing Level
shall be made by the Administrative Agent and shall be effective on the fifth
(5th) Domestic Business Day after the earlier of (i) receipt by the
Administrative Agent of notice of such change in Debt Rating pursuant to Section
5.01(m) or (ii) knowledge of the Administrative Agent of such change in Debt
Rating.
"Prime Rate" refers to that interest rate so denominated and set by
Wachovia from time to time as an interest rate basis for borrowings. The Prime
Rate is but one of several interest rate bases used by Wachovia. Wachovia lends
at interest rates above and below the Prime Rate.
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"Properties" means all real property owned, leased or otherwise used or
occupied by the Borrower or any Subsidiary, wherever located.
"PSNC" means Public Service Company of North Carolina, Incorporated, a
North Carolina corporation.
"Public Notes" means medium term notes issued by the Borrower under the
1989 Indenture or other Debt in an aggregate principal amount not to exceed
$400,000,000 for the sole purpose of consummating the Mergers (as defined in the
Merger Agreement).
"PUHCA" means the Public Utility Holding Company Act of 1935, as amended
from time to time, or any successor law, and the rules and regulations
thereunder.
"Rating Agencies" means Moody's and S&P.
"Redeemable Preferred Stock" of any Person means (a) any preferred stock
issued by such Person which is at any time prior to the Maturity Date either (i)
mandatorily redeemable (by sinking fund or similar payments or otherwise) or
(ii) redeemable at the option of the holder thereof, and (b) to the extent not
included in clause (a) of this definition, the Trust Preferred Securities and
any Additional Trust Preferred Securities.
"Required Banks" means at any time Banks having at least 51% of the
aggregate amount of the Commitments or, if the Commitments are no longer in
effect, Banks holding at least 51% of the aggregate outstanding principal amount
of the Notes.
"Restricted Payment" means (i) any dividend or other distribution on any
shares of the Borrower's capital stock (except dividends payable solely in
shares of its capital stock) or (ii) any payment on account of the purchase,
redemption, retirement or acquisition of (a) any shares of the Borrower's
capital stock (except (1) shares acquired upon the conversion thereof into other
shares of its capital stock and (2) Excluded Borrower Stock) or (b) any option,
warrant or other right to acquire shares of the Borrower's capital stock.
"S&P" means Standard & Poor's Rating Group.
"SCE&G" means South Carolina Electric & Gas Company, a South Carolina
corporation.
"SEC" means the United States Securities and Exchange Commission, or any
successor thereto.
"Security" has the meaning assigned to such term in Section 2(l) of the
Securities Act of 1933, as amended.
"Senior Debt" means the long-term, senior, unsecured indebtedness of the
Borrower the creditworthiness of which is not supported through defeasance,
guarantees, credit enhancement or otherwise.
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"Stock" of any Person means any capital stock or other equity Security, of
any classification, of such Person or any Subsidiary of such Person (to the
extent issued to a Person other than such Person or a Wholly Owned Subsidiary of
such Person).
"Stockholders' Equity" means, at any time, the shareholders' equity of the
Borrower and its Consolidated Subsidiaries, as set forth or reflected on the
most recent consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries prepared in accordance with GAAP, but excluding any Redeemable
Preferred Stock of the Borrower or any of its Consolidated Subsidiaries.
Shareholders' equity generally would include, but not be limited to (i) the par
or stated value of all outstanding Capital Stock, (ii) capital surplus, (iii)
retained earnings, and (iv) various deductions such as (A) purchases of treasury
stock, (B) valuation allowances, (C) receivables due from an employee stock
ownership plan, (D) employee stock ownership plan debt guarantees, and (E)
translation adjustments for foreign currency transactions.
"Subsidiary" means any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Borrower.
"Taxes" has the meaning set forth in Section 2.09(c).
"Term Loan Draw Date" means the date specified in the Notice of Borrowing
(submitted to the Administrative Agent pursuant to Section 3.02(a)) as the date
the borrowing of the Loans is to be made.
"Termination Date" means the earlier of (i) March 31, 2000 or (ii) one
hundred twenty calendar days after the Closing Date.
"Third Parties" means all lessees, sublessees, licensees and other users of
the Properties, excluding those users of the Properties in the ordinary course
of the Borrower's business and on a temporary basis.
"Transferee" has the meaning set forth in Section 9.07(d).
"Trust Preferred Securities" means the 2,000,000 shares of 7.55% Trust
Preferred Securities, Series A issued by SCE&G Trust I on October 28, 1997 in
the aggregate amount of $50,000,000.
"Unused Commitment" means at any date, with respect to any Bank, an amount
equal to its Commitment less the aggregate outstanding principal amount of its
Loans.
"Wachovia" means Wachovia Bank, N.A., a national banking association and
its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of capital
stock or other ownership interests of which (except (i) directors' qualifying
shares, (ii) the Trust Preferred Securities, (iii) any Additional Trust
Preferred Securities, and (iv) the Preferred Stock) are at the time directly or
indirectly owned by the Borrower.
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"Y2K Plan" has the meaning set forth in Section 4.20.
"Year 2000 Compliant and Ready" as used herein means (a) the Borrower's and
its Subsidiaries' hardware and software systems with respect to the operation of
its business and its general business plan will: (i) handle date information
involving any and all dates before, during and/or after January 1, 2000,
including accepting input, providing output and performing date calculations in
whole or in part; (ii) operate, accurately without interruption on and in
respect of any and all dates before, during and/or after January 1, 2000 and
without any change in performance; (iii) store and provide date input
information without creating any ambiguity as to the century, and (b) the
Borrower has developed alternative plans to ensure business continuity in the
event of the failure of any or all of items (a)(i) through (a)(iii) above.
SECTION 1.02 Accounting Terms and Determinations. Unless otherwise
specified herein, all terms of an accounting character used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks, unless with respect to any such change concurred in by the
Borrower's independent public accountants or required by GAAP, in determining
compliance with any of the provisions of this Agreement or any of the other Loan
Documents: (i) the Borrower shall have objected to determining such compliance
on such basis at the time of delivery of such financial statements, or (ii) the
Required Banks shall so object in writing within 30 days after the delivery of
such financial statements, in either of which events such calculations shall be
made on a basis consistent with those used in the preparation of the latest
financial statements as to which such objection shall not have been made (which,
if objection is made in respect of the first financial statements delivered
under Section 5.01 hereof, shall mean the financial statements referred to in
Section 4.04).
SECTION 1.03 Use of Defined Terms. All terms defined in this Agreement
shall have the same meanings when used in any of the other Loan Documents,
unless otherwise defined therein or unless the context shall otherwise require.
SECTION 1.04 Terminology. All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, shall include all
other genders; the singular shall include the plural and the plural shall
include the singular. Titles of Articles and Sections in this Agreement are for
convenience only, and neither limit nor amplify the provisions of this
Agreement.
SECTION 1.05 References. Unless otherwise indicated, references in this
Agreement to "Articles", "Exhibits", "Schedules", and "Sections" are references
to articles, exhibits, schedules and sections hereof.
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ARTICLE II.
THE CREDITS
SECTION 2.01 Commitments to Make Loans. The Banks hereby severally
establish, on the terms and conditions set forth herein, a term loan facility in
an aggregate principal amount not to exceed $300,000,000, from which each Bank
severally agrees on the terms and conditions set forth herein to make Loans to
the Borrower on the Term Loan Draw Date (which date shall be on or before the
Termination Date) in an amount up to but not in excess of the amount of such
Bank's Commitment. The Loans shall be advanced to the Borrower upon satisfaction
of the conditions hereunder. The amount of each Bank's pro rata share of Loans
shall be equal to such Bank's ratable share (based on the Bank's respective
Commitment) of the aggregate amount of the Loans to be borrowed by the Borrower.
The Commitments shall terminate on the earlier of (i) the Term Loan Draw Date
and (ii) the Termination Date. Thereafter, the Banks shall have no obligation to
advance any moneys to the Borrower.
SECTION 2.02 Method of Conversion and Continuation.
(a) The Loans shall initially be (i) Base Rate Loans in an aggregate
principal amount of $1,000,000 or any larger multiple of $500,000 or (ii)
Euro-Dollar Loans in an aggregate principal amount of $5,000,000 or any larger
multiple of $1,000,000, as elected by the Borrower in the Notice of Borrowing.
Thereafter, on the terms and subject to the conditions of this Agreement, the
Borrower may elect (A) at any time to convert Base Rate Loans to Euro-Dollar
Loans or to continue such Base Rate Loans for an additional Interest Period, or
(B) at the end of any Interest Period with respect to Euro-Dollar Loans to
convert such Euro-Dollar Loans into Base Rate Loans or to continue such
Euro-Dollar Loans for an additional Interest Period. The Loans may be continued
as, or converted to, (i) Base Rate Loans in an aggregate principal amount of
$1,000,000 or any larger multiple of $500,000 or (ii) Euro-Dollar Loans in an
aggregate principal amount of $5,000,000 or any larger multiple of $1,000,000.
The Borrower shall make each such election by delivering to the Administrative
Agent an Interest Rate Election Notice prior to 11:00 a.m. (Atlanta, Georgia
time) at least 3 Euro-Dollar Business Days prior to the effective date of any
conversion to or continuation of Euro-Dollar Loans, and prior to 10:00 a.m.
(Atlanta, Georgia time) on the same Domestic Business Day as the effective date
of any conversion to or continuation of Base Rate Loans, specifying (x) in the
case of a conversion to or continuation of Euro-Dollar Loans, the Interest
Period; (y) the date of conversion or continuation (which shall be a Euro-Dollar
Business Day, in the case of a conversion to or continuation of Euro-Dollar
Loans and a Domestic Business Day in the case of a conversion to or continuation
of Base Rate Loans); and (z) the amount and type of conversion or continuation.
Upon timely receipt of an Interest Rate Election Notice, the Administrative
Agent shall promptly notify the Borrower and the Banks of the applicable
interest rate for the Interest Period selected in such Interest Rate Election
Notice; provided that the failure by the Administrative Agent to provide any
such notice shall not, in any way, affect or diminish the Borrower's obligations
to the Banks or the Banks' rights under this Agreement, the Notes or any of the
other Loan Documents. If, within the time period required under this Section,
the Administrative Agent shall not have received an Interest Rate Election
Notice from the Borrower of an election to
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continue loans for an additional Interest Period, then, upon the expiration of
the Interest Period therefor, such Loans shall be converted or continued
automatically as Base Rate Loans.
(b) Not later than 1:00 p.m. (Atlanta, Georgia time) on the Term Loan Draw
Date, each Bank shall make available its Loans, in Federal or other funds
immediately available in Atlanta, Georgia, to the Administrative Agent at its
address referred to in or specified pursuant to Section 9.01. Unless the
Administrative Agent determines that any applicable condition specified in
Article III has not been satisfied, the Administrative Agent will make the funds
so received from the Banks available to the Borrower at the Administrative
Agent's aforesaid address. Unless the Administrative Agent receives notice from
a Bank, at the Administrative Agent's address referred to in Section 9.01, no
later than 4:00 p.m. (local time at such address) on the Domestic Business Day
before the Term Loan Draw Date stating that such Bank will not make its Loan in
connection with such borrowing, the Administrative Agent shall be entitled to
assume that such Bank will make its Loan in connection with such borrowing and,
in reliance on such assumption, the Administrative Agent may (but shall not be
obligated to) make available such Bank's Loan to the Borrower for the account of
such Bank. If the Administrative Agent makes such Bank's Loan available to the
Borrower and such Bank does not in fact make its Loan available on such date,
the Administrative Agent shall be entitled to recover the amount of such Loan
from such Bank or the Borrower (and for such purpose shall be entitled to charge
such amount to any account of the Borrower maintained with the Administrative
Agent), together with interest thereon for each day during the period from the
Term Loan Draw Date until such sum shall be paid in full at a rate per annum
equal to the rate at which the Administrative Agent determines that it obtained
(or could have obtained) overnight Federal funds to cover such amount for each
such day during such period, provided that any such payment by the Borrower and
interest thereon shall be without prejudice to any rights that the Borrower may
have against such Bank. If such Bank shall repay to the Administrative Agent
such corresponding amount, such amount so repaid shall constitute such Bank's
Loan included in such borrowing for purposes of this Agreement.
(c) Notwithstanding anything to the contrary contained in this Agreement,
the Loans may not be continued as, or converted to, Euro-Dollar Loans if at the
time of continuation or conversion there shall have occurred an Event of
Default, which Event of Default shall not have been cured or waived in writing.
SECTION 2.03 Notes.
(a) The Loans shall be evidenced by notes of the Borrower for each Bank,
payable to the order of such Bank, for the account of its Lending Office in
principal amounts equal to the amount of such Bank's Commitment. Each such note
shall be dated the date hereof and shall be substantially in the form attached
hereto as Exhibit A (the "Note") and otherwise duly completed.
(b) Upon receipt of each Bank's Note pursuant to Section 3.01, the
Administrative Agent shall deliver such Note to such Bank. Each Bank shall
record, and prior to any transfer of its Note shall endorse on the schedule
forming a part thereof appropriate notations to evidence, the date and amount
of, and effective interest rate for, the Loan made by it, the date and amount of
each payment of principal made by the Borrower with respect thereto and whether
such Loan is a Base Rate Loan or Euro-Dollar Loan, and such schedule shall
constitute rebuttable presumptive evidence of the
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principal amount owing and unpaid on such Bank's Note; provided that the failure
of any Bank to make, or any error in making, any such recordation or endorsement
shall not affect the obligation of the Borrower hereunder or under the Notes or
the ability of any Bank to assign its Note. Each Bank is hereby irrevocably
authorized by the Borrower so to endorse its Note and to attach to and make a
part of any Note a continuation of any such schedule as and when required.
SECTION 2.04 Repayment and Maturity of Loans. Unless due sooner pursuant to
the provisions of Article VI, the Loans shall be repaid in 2 principal
installments as follows: (i) the first principal installment of $150,000,000
shall be due and payable in full on the First Payment Date and (ii) the second
and last principal installment of the remaining outstanding principal amount of
the Loans shall be due and payable in full on the Maturity Date.
SECTION 2.05 Interest Rates.
(a) "Applicable Margin" shall be the rate per annum set forth below
opposite the applicable Pricing Level:
Pricing Level Base Rate Loans Euro-Dollar Loans
Level I 0% 0.750%
Level II 0% 0.900%
Level III 0% 1.125%
Level IV 0% 1.375%
Level V 0% 2.000%
Adjustments, if any, in the Applicable Margin shall be made by the
Administrative Agent based upon changes in the Pricing Level and shall be
effective on the date of any change in the Pricing Level as provided in the
definition thereof.
(b) Each Base Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Loan is made until it becomes
due, at a rate per annum equal to the Base Rate for such day plus the Applicable
Margin. Such interest shall be payable for each Interest Period on the last day
thereof. Any overdue principal of and, to the extent permitted by applicable
law, overdue interest on any Base Rate Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate per annum
equal to the sum of the Applicable Margin plus the applicable Adjusted London
Interbank Offered Rate for such Interest Period; provided that if any
Euro-Dollar Loan shall, as a result of clause (1)(c) of the definition of
Interest Period, have an Interest Period of less than one month, such
Euro-Dollar Loan shall bear interest
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during such Interest Period at the rate applicable to Base Rate Loans during
such period. Such interest shall be payable for each Interest Period on the last
day thereof and, if such Interest Period is longer than 3 months, at intervals
of 3 months after the first day thereof. Any overdue principal of and, to the
extent permitted by applicable law, overdue interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day until paid at a rate per
annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable
London Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Euro-Dollar Loan
means for the Interest Period of such Euro-Dollar Loan the rate per annum
determined on the basis of the offered rate for deposits in Dollars of amounts
equal or comparable to the principal amount of such Euro-Dollar Loan offered for
a term comparable to such Interest Period, which rate appears on the display
designated as Page "3750" of the Telerate Service (or such other page as may
replace page 3750 of that service or such other service or services as may be
nominated by the British Banker's Association for the purpose of displaying
London Interbank Offered Rates for U.S. dollar deposits) determined as of 1:00
p.m. New York City time, 2 Euro-Dollar Business Days prior to the first day of
such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents). The Adjusted London Interbank Offered Rate
shall be adjusted automatically on and as of the effective date of any change in
the Euro-Dollar Reserve Percentage.
(d) The Administrative Agent shall determine each interest rate applicable
to the Loans hereunder. The Administrative Agent shall give prompt notice to the
Borrower and the Banks by telecopy of each rate of interest so determined, and
its determination thereof shall be conclusive in the absence of manifest error.
(e) After the occurrence and during the continuance of a Default, the
principal amount of the Loans (and, to the extent permitted by applicable law,
all accrued interest thereon) may, at the election of the Required Banks, bear
interest at the Default Rate; provided, however, that automatically, whether or
not the Required Banks elect to do so, any overdue principal of and, to the
extent permitted by law, overdue interest on, any Loan shall bear interest
payable on demand, for each day until paid at a rate per annum equal to the
Default Rate.
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SECTION 2.06 Fees.
(a) The Borrower shall pay to the Administrative Agent for the ratable
account of each Bank a commitment fee calculated at the rate of 0.15% per annum
on the daily average amount of such Bank's Unused Commitment. Such commitment
fees shall accrue from and including the Closing Date to and including the
earlier to occur of (i) the Term Loan Draw Date and (ii) the Termination Date.
Such commitment fees shall be payable in arrears (i) every three months during
the period described in the preceding sentence and (ii) on the earlier to occur
of (A) the Term Loan Draw Date and (B) the Termination Date.
(b) The Borrower shall pay to the Administrative Agent for the ratable
account of each Bank an upfront fee as set forth in the Administrative Agent's
Letter Agreement.
(c) The Borrower shall pay to the Administrative Agent, for the account and
sole benefit of the Administrative Agent, such fees and other amounts at such
times as set forth in the Administrative Agent's Letter Agreement.
SECTION 2.07 Optional Prepayments.
(a) The Borrower may, upon at least 1 Domestic Business Day's notice to the
Administrative Agent, prepay any Base Rate Loans in whole at any time, or from
time to time in part in amounts aggregating at least $1,000,000, or any larger
multiple of $500,000, by paying the principal amount to be prepaid together with
accrued interest thereon to the date of prepayment. Each such optional
prepayment shall be applied to prepay ratably the Base Rate Loans of the several
Banks in the inverse order of maturity.
(b) The Borrower may, upon at least three Euro-Dollar Business Days' notice
to the Administrative Agent, prepay any Euro-Dollar Loans in whole at any time,
or from time to time in part in amounts aggregating at least $1,000,000, or any
larger multiple of $500,000, by paying the principal amount to be prepaid
together with (i) accrued interest thereon to the date of prepayment; and (ii)
any amounts due under Section 8.05. Each such optional prepayment shall be
applied to prepay ratably the Euro-Dollar Loans of the several Banks in the
inverse order of maturity.
(c) Upon receipt of a notice of prepayment pursuant to this Section, the
Administrative Agent shall promptly notify each Bank of the contents thereof and
of such Bank's ratable share of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
SECTION 2.08 Mandatory Prepayments.
(a) In the event and on each occasion that the Borrower shall issue any
Stock (other than Excluded Borrower Stock) or issue or incur any Debt (other
than Excluded Borrower Debt), the Borrower shall, concurrently with such
issuance or incurrence, immediately give notice to the Administrative Agent of
such issuance or incurrence, and on the 3rd Euro-Dollar Business Day thereafter
the Borrower shall repay or prepay the principal amount of the Loans in an
amount equal
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to 100% of the Net Proceeds of Stock (in the case of issuance of Stock) or 100%
of the Net Proceeds of Debt (in the case of issuance or incurrence of Debt).
(b) In the event and on each occasion that the Borrower or any of its
Subsidiaries shall sell or otherwise dispose of any assets (other than Excluded
Sales), the Borrower shall, concurrently with such sale or disposition,
immediately give notice to the Administrative Agent of such sale or disposition,
and on the 3rd Euro-Dollar Business Day thereafter the Borrower shall, to the
extent that the amount of Net Disposition Proceeds arising from such sale or
disposition, when aggregated with the total amount of Net Disposition Proceeds
arising from all other sales and dispositions (other than Excluded Sales) made
after the Closing Date, exceeds $50,000,000, repay or prepay the principal
amount of the Loans in an amount equal to 100% of such Net Disposition Proceeds
to the extent that such Net Disposition Proceeds exceed $50,000,000.
(c) Each such payment or prepayment shall be accompanied by an amount equal
to all accrued and unpaid interest on the amount so prepaid (together with, in
the case of prepayment of Euro-Dollar Loans, any amounts due under Section 8.05)
and shall be applied to repay or prepay ratably the Loans of the several Banks
in the inverse order of maturity; provided that any prepayment required pursuant
to clause (a) or (b) above that occurs within the ninety (90) day period
immediately preceding the First Payment Date shall be applied to repay the first
principal installment referenced in Section 2.04(i).
SECTION 2.09 General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of, and interest on,
the Loans and of commitment fees hereunder, not later than 11:00 a.m. (Atlanta,
Georgia time) without setoff, counterclaim or other deduction on the date when
due, in Federal or other funds immediately available in Atlanta, Georgia, to the
Administrative Agent at its address referred to in Section 9.01. The
Administrative Agent will promptly distribute to each Bank its ratable share of
each such payment received by the Administrative Agent for the account of the
Banks.
(b) Whenever any payment of principal of, or interest on, the Base Rate
Loans or of fees shall be due on a day that is not a Domestic Business Day, the
date for payment thereof shall be extended to the next succeeding Domestic
Business Day. Whenever any payment of principal of, or interest on, the
Euro-Dollar Loans shall be due on a day which is not a Euro-Dollar Business Day,
the date for payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case the date for payment thereof shall be the next
preceding Euro-Dollar Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon shall be payable for
such extended time.
(c) All payments of principal, interest and fees and all other amounts to
be made by the Borrower pursuant to this Agreement with respect to any Loan or
fee relating thereto shall be paid without deduction for, and free from, any
tax, imposts, levies, duties, deductions, or withholdings of any nature now or
at anytime hereafter imposed by any governmental authority or by any taxing
authority thereof or therein excluding in the case of each Bank, taxes imposed
on or measured by its
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net income, and franchise taxes imposed on it, by the jurisdiction under the
laws of which such Bank is organized or any political subdivision thereof and,
in the case of each Bank, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction of such Bank's applicable Lending Office or
any political subdivision thereof (all such non-excluded taxes, imposts, levies,
duties, deductions or withholdings of any nature being "Taxes"). In the event
that the Borrower is required by applicable law to make any such withholding or
deduction of Taxes with respect to any Loan or fee or other amount, the Borrower
shall pay such deduction or withholding to the applicable taxing authority,
shall promptly furnish to any Bank in respect of which such deduction or
withholding is made all receipts and other documents evidencing such payment and
shall pay to such Bank additional amounts as may be necessary in order that the
amount received by such Bank after the required withholding or other payment
shall equal the amount such Bank would have received had no such withholding or
other payment been made. If no withholding or deduction of Taxes are payable in
respect of any Loan or fee relating thereto, the Borrower shall furnish any
Bank, at such Bank's request (as to each taxing authority specified by such
Bank), a certificate from the applicable taxing authority or an opinion of
counsel acceptable to such Bank, in either case stating that such payments are
exempt from or not subject to withholding or deduction of Taxes. If the Borrower
fails to provide such original or certified copy of a receipt evidencing payment
of Taxes or certificate(s) or opinion of counsel of exemption, the Borrower
hereby agrees to compensate such Bank for, and indemnify it with respect to, the
tax consequences of the Borrower's failure to provide evidence of tax payments
or tax exemption.
In the event any Bank receives a refund of any Taxes paid by the Borrower
pursuant to this Section 2.09(c), it will pay to the Borrower the amount of such
refund promptly upon receipt thereof; provided, however, if at any time
thereafter it is required to return such refund, the Borrower shall promptly
repay to it the amount of such refund.
(d) Each Bank (or Assignee) that is organized under the laws of a
jurisdiction other than the United States, any State thereof or the District of
Columbia (a "Non-U.S. Bank") shall deliver to the Borrower and the
Administrative Agent two copies of either United States Internal Revenue Service
Form 1001 or Form 4224, or, in the case of a Non-U.S. Bank claiming exemption
from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest," a Form W-8, or any subsequent
versions thereof or successors thereto (and, if such Non-U.S. Bank delivers a
Form W-8, a certificate representing that such Non-U.S. Bank is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within
the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Code)), properly completed and duly executed by such
Non-U.S. Bank claiming complete exemption from U.S. Federal withholding tax on
payments by the Borrower under this Agreement and the other Loan Documents. Such
forms shall be delivered by each Non-U.S. Bank on or before the date it becomes
a party to this Agreement and on or before the date, if any, such Non-U.S. Bank
changes its applicable Lending Office by designating a different Lending Office
(a "New Lending Office"). In addition, each Non-U.S. Bank shall deliver such
forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Bank. Notwithstanding any other provision of this
Section 2.09(d), a Non-U.S. Bank shall not be required to deliver any form
pursuant to this Section 2.09(d) that such Non-U.S. Bank is not legally able to
deliver.
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(e) The Borrower shall not be required to indemnify any Non-U.S. Bank, or
to pay any additional amounts to any Non-U.S. Bank, in respect of United States
Federal withholding tax pursuant to paragraph (c) above to the extent that (i)
the obligation to withhold amounts with respect to United States Federal
withholding tax existed on the date such Non-U.S. Bank became a party to this
Agreement or, with respect to payments to a New Lending Office, the date such
Non-U.S. Bank designated such New Lending Office with respect to a Loan;
provided, however, that this paragraph (e) shall not apply (x) to any Assignee
or New Lending Office that becomes an Assignee or New Lending Office as a result
of an assignment, transfer or designation made at the written request of the
Borrower and (y) to the extent the indemnity payment or additional amounts any
Assignee, or any Bank (or Assignee) acting through a New Lending Office, would
be entitled to receive (without regard to this paragraph (e)) do not exceed the
indemnity payment or additional amounts that the Person making the assignment or
transfer to such Assignee, or Bank (or Assignee) making the designation of such
New Lending Office, would have been entitled to receive in the absence of such
assignment, transfer or designation or (ii) the obligation to pay such
additional amounts would not have arisen but for a failure by such Non-U.S. Bank
to comply with the provisions of paragraph (d) above.
(f) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.09 shall be applicable with respect to any Participant, Assignee
or other Transferee, and any calculations required by such provisions (i) shall
be made based upon the circumstances of such Participant, Assignee or other
Transferee, and (ii) constitute a continuing agreement and shall survive the
termination of this Agreement and the payment in full or cancellation of the
Notes.
SECTION 2.10 Computation of Interest and Fees. Interest on Base Rate Loans
shall be computed on the basis of a year of 365 days and paid for the actual
number of days elapsed (including the first day but excluding the last day).
Interest on Euro-Dollar Loans shall be computed on the basis of a year of 360
days and paid for the actual number of days elapsed, calculated as to each
Interest Period from and including the first day thereof to but excluding the
last day thereof. Commitment fees and any other fees payable hereunder shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed.
ARTICLE III.
CONDITIONS TO LOANS
SECTION 3.01 Conditions to Closing. This Agreement shall become effective
upon the satisfaction of the following conditions:
(a) receipt by the Administrative Agent from each of the parties hereto of
either (i) a duly executed counterpart of this Agreement signed by such party or
(ii) a facsimile transmission stating that such party has duly executed a
counterpart of this Agreement and sent such counterpart to the Administrative
Agent;
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(b) receipt by the Administrative Agent of a duly executed Note for the
account of each Bank complying with the provisions of Section 2.03;
(c) receipt by the Administrative Agent of an opinion (together with any
opinions of local counsel relied on therein) of ▇▇▇▇▇▇ Law Firm, P.A., counsel
for the Borrower, and H. ▇▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel for the Borrower, each
dated as of the Closing Date, substantially in the forms of Exhibit B-1 and
Exhibit B-2, respectively, hereto and covering such additional matters relating
to the transactions contemplated hereby as the Administrative Agent or any Bank
may reasonably request;
(d) receipt by the Administrative Agent of an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ PLLC, special counsel for the Administrative Agent, dated as of
the Closing Date, substantially in the form of Exhibit C hereto and covering
such additional matters relating to the transactions contemplated hereby as the
Administrative Agent may reasonably request;
(e) receipt by the Administrative Agent of a certificate (the "Closing
Certificate"), dated the Closing Date, substantially in the form of Exhibit D
hereto, signed by a principal financial officer of the Borrower, to the effect
that (i) no Default has occurred and is continuing on such date and (ii) the
representations and warranties of the Borrower contained in Article IV of this
Agreement (other than the representations and warranties contained in Section
4.10(b)) are true in all material respects on and as of such date;
(f) receipt by the Administrative Agent of all documents which the
Administrative Agent or any Bank may reasonably request relating to the
existence of the Borrower, the corporate authority for and the validity of this
Agreement and the Notes, and any other matters relevant hereto, all in form and
substance satisfactory to the Administrative Agent, including without limitation
a certificate of incumbency of the Borrower (the "Officer's Certificate"),
signed by the Secretary or an Assistant Secretary of the Borrower, substantially
in the form of Exhibit E hereto, certifying as to the names, true signatures and
incumbency of the officer or officers of the Borrower authorized to execute and
deliver the Loan Documents, and certified copies of the following items: (i) the
Borrower's Articles of Incorporation, (ii) the Borrower's By-laws, (iii) a
certificate of the Secretary of State of the State of South Carolina as to the
existence of the Borrower as a South Carolina corporation, and (iv) the action
taken by the Board of Directors of the Borrower authorizing the Borrower's
execution, delivery and performance of this Agreement, the Notes and the other
Loan Documents to which the Borrower is a party;
(g) receipt by the Administrative Agent of all fees and expenses payable on
the Closing Date pursuant to the Administrative Agent's Letter Agreement;
(h) a statement of the chief executive officer, chief financial officer, or
chief technology officer of the Borrower to the effect that nothing has come to
his/her attention to cause him/her to believe that the Y2K Plan milestones have
not been met in a manner such that the Borrower's and its Subsidiaries' hardware
and software systems will not be Year 2000 Compliant and Ready in accordance
with the Y2K Plan except where the failure to meet such Y2K Plan milestones
could not reasonably be expected to have a Material Adverse Effect; and
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(i) receipt by the Administrative Agent of such other documents or items
the Administrative Agent, the Banks or their counsel may reasonably request.
SECTION 3.02 Conditions to Funding. The obligation of each Bank to make its
Loan is subject to the satisfaction of the conditions set forth in Section 3.01
and the following additional conditions:
(a) receipt by the Administrative Agent of a duly completed and executed
Notice of Borrowing, delivered to the Administrative Agent prior to 9:30 a.m.
(Atlanta, Georgia time) on or before the Term Loan Draw Date (if all of the
Loans are to be Base Rate Loans) or prior to 11:00 a.m. (Atlanta, Georgia time)
at least 3 Euro-Dollar Business Days before the Term Loan Draw Date (if any of
the Loans are to be Euro-Dollar Loans);
(b) the fact that, immediately before and after such borrowing, no Default
shall have occurred and be continuing;
(c) the fact that the representations and warranties of the Borrower
contained in Article IV of this Agreement (other than the representations and
warranties contained in Section 4.10(a)) shall be true in all material respects
on and as of the Term Loan Draw Date;
(d) the fact that, immediately after such borrowing (i) the aggregate
outstanding principal amount of the Loans of each Bank will not exceed the
amount of its Commitment and (ii) the aggregate outstanding principal amount of
the Loans will not exceed the aggregate amount of the Commitments of all of the
Banks as of such date;
(e) the fact that since December 31, 1998 there has been no event, act,
condition or occurrence having a Material Adverse Effect except such events,
acts, conditions and occurrences as are (i) disclosed in reports that shall have
been filed with the SEC prior to the Closing Date or (ii) described on Schedule
4.05;
(f) receipt by the Administrative Agent of evidence satisfactory to it that
all of the conditions to the Mergers (as defined in the Merger Agreement)
contained in the Merger Agreement have been satisfied or waived with the consent
of the Administrative Agent and that immediately upon funding of the Loans, the
Mergers (as defined in the Merger Agreement) shall be consummated.
(g) receipt by the Administrative Agent of evidence satisfactory to it that
shares constituting 75% of the capital stock of PSNC have been tendered to the
Borrower;
(h) receipt by the Administrative Agent of evidence satisfactory to it that
the Borrower has not paid more than $33.00 per share for the capital stock of
PSNC in accordance with the terms of the Merger Agreement;
(i) receipt by the Administrative Agent of evidence satisfactory to it that
the Debt evidenced by the Public Notes shall rank pari passu with the
obligations of the Borrower under this Agreement, the Notes and the other Loan
Documents;
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(j) receipt by the Administrative Agent of evidence satisfactory to it that
(i) the Borrower has received all governmental, shareholder, and other third
party consents and approvals (including, without limitation, consents from the
United States Department of Justice, the Federal Trade Commission, the North
Carolina Utilities Commission, the SEC and the Federal Communications
Commission) required for consummation of the Mergers (as defined in the Merger
Agreement), and for the undertaking by the Borrower of the Loans and the other
obligations under this Agreement, (ii) all applicable waiting periods associated
with any consents or approvals referenced in clause (i) above have expired and
(iii) the consents and approvals described in clause (i) of this paragraph are
not subject to any conditions which are unsatisfactory to the Administrative
Agent;
(k) receipt by the Administrative Agent of evidence satisfactory to it that
(i) the Borrower has made all filings required to register the Borrower as a
holding company pursuant to Section 5 of PUHCA, and (ii) such filings comply
fully with the applicable requirements of PUHCA;
(l) receipt by the Administrative Agent of an opinion of counsel for the
Borrower, in form and substance satisfactory to the Administrative Agent, to the
effect that the Borrower will be able to meet all of its obligations under this
Agreement under, and the Borrower is in compliance with, all requirements of
PUHCA;
(m) receipt by the Administrative Agent of a certificate, dated the Term
Loan Draw Date, signed by a principal financial officer of the Borrower, to the
effect that with respect to PSNC and its subsidiaries (if any), as a result of
such borrowing and consummation of the Mergers (as defined in the Merger
Agreement), to the best of the Borrower's knowledge (i) there will be no
Default, and (ii) no event or condition (other than as described in this
Agreement) causing a Material Adverse Effect shall have occurred; and
(n) receipt by the Administrative Agent of such other documents or items
the Administrative Agent, the Banks or their counsel may reasonably request.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01 Corporate Existence and Power. The Borrower is a corporation
duly organized and validly existing under the laws of the jurisdiction of its
incorporation, is duly qualified to transact business in every jurisdiction
where, by the nature of its business, such qualification is necessary, and has
all corporate powers and all governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted, except where the
failure to be so qualified or to have such licenses, authorizations, consents
and approvals would not have a Material Adverse Effect.
SECTION 4.02 Corporate and Governmental Authorization; No Contravention.
The execution, delivery and performance by the Borrower of this Agreement, the
Notes and the other
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Loan Documents (i) are within the Borrower's corporate powers, (ii) have been
duly authorized by all necessary corporate action, (iii) require no further
action by or in respect of, or filing with, any governmental body, agency or
official (except, as of the Closing Date only, those actions and filings
enumerated in clauses (k) and (l) of Section 3.02), (iv) do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the Articles of Incorporation or By-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower or any of its Subsidiaries, and (v) do not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 4.03 Binding Effect. This Agreement constitutes a valid and binding
agreement of the Borrower enforceable in accordance with its terms, and the
Notes and the other Loan Documents, when executed and delivered in accordance
with this Agreement, will, assuming due execution and delivery by the other
parties hereto and thereto, constitute valid and binding obligations of the
Borrower enforceable in accordance with their respective terms, provided that
the enforceability hereof and thereof is subject in each case to general
principles of equity and to bankruptcy, insolvency and similar laws affecting
the enforcement of creditors' rights generally.
SECTION 4.04 Financial Information.
(a) The consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of December 31, 1998 and the related consolidated statements of
income, retained earnings and cash flows for the Fiscal Year then ended,
reported on by Deloitte & Touche LLP, copies of which have been delivered to
each of the Banks, and the unaudited consolidated financial statements of the
Borrower for the interim period ended September 30, 1999, copies of which have
been delivered to each of the Banks, fairly present, in conformity with GAAP,
the consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such dates and their consolidated results of operations and
cash flows for such periods stated.
(b) Since December 31, 1998, there has been no event, act, condition or
occurrence having a Material Adverse Effect except (i) such events, acts,
conditions and occurrences as are disclosed in reports that shall have been
filed with the SEC prior to the Closing Date and (ii) for the matter described
on Schedule 4.05.
SECTION 4.05 Litigation. Except as set forth on Schedule 4.05, there is no
action, suit or proceeding pending, or to the knowledge of the Borrower
threatened, against or affecting the Borrower or any of its Subsidiaries before
any court or arbitrator or any governmental body, agency or official which
creates a reasonable possibility of having or causing a Material Adverse Effect
or which in any manner draws into question the validity or enforceability of, or
creates a reasonable possibility of impairing the ability of the Borrower to
perform its obligations under, this Agreement, the Notes or any of the other
Loan Documents.
SECTION 4.06 Compliance with ERISA.
(a) The Borrower and each member of the Controlled Group have fulfilled
their obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan
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and are in compliance in all material respects with the presently applicable
provisions of ERISA and the Code, and have not incurred any liability to the
PBGC or a Plan under Title IV of ERISA.
(b) Neither the Borrower nor any member of the Controlled Group is or ever
has been obligated to contribute to any Multiemployer Plan.
SECTION 4.07 Taxes. There have been filed on behalf of the Borrower and its
Subsidiaries all Federal, state and local income, excise, property and other tax
returns which are required to be filed by them and all taxes shown to be due
pursuant to such returns or pursuant to any assessment received by or on behalf
of the Borrower or any Subsidiary have been paid. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect of taxes
or other governmental charges are, in the opinion of the Borrower, adequate.
United States income tax returns of the Borrower and its Subsidiaries have been
examined and closed through the Fiscal Year ended December 31, 1995.
SECTION 4.08 Subsidiaries. Each of the Borrower's Subsidiaries is duly
organized and validly existing under the laws of its jurisdiction of
organization, is duly qualified to transact business in every jurisdiction
where, by the nature of its business, such qualification is necessary, and has
all corporate, trust or limited liability company powers, as the case may be,
and all governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted except where the failure to have any
such licenses, authorizations, consents or approvals could not reasonably be
expected to have a Material Adverse Effect. The Borrower has no Subsidiaries
except those Subsidiaries listed on Schedule 4.08 (or any subsequent Schedule
4.08 delivered to the Administrative Agent and the Banks prior to the Term Loan
Draw Date), which accurately sets forth each such Subsidiary's complete name and
jurisdiction of organization.
SECTION 4.09 Not an Investment Company. Neither the Borrower nor any of its
Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
SECTION 4.10 Public Utility Holding Company Act.
(a) As of the Closing Date, the Borrower is a holding company within the
meaning of PUHCA, and is exempt from registration under Section 3(a)(1) of
PUHCA.
(b) As of the Term Loan Draw Date, the Borrower shall have received an
order from the SEC authorizing the Borrower to consummate the Mergers (as
defined in the Merger Agreement) and upon such consummation the Borrower will be
a registered holding company pursuant to Section 5 of PUHCA and in compliance
with all applicable requirements of PUHCA.
SECTION 4.11 Ownership of Property; Liens. Each of the Borrower and its
Consolidated Subsidiaries has title to its Properties sufficient for the conduct
of its business, and none of such Property is subject to any Lien except as
permitted in Section 5.16 or (with respect to Consolidated Subsidiaries only) in
Section 1009 of the BONY Indenture.
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SECTION 4.12 No Default. Neither the Borrower nor any of its Consolidated
Subsidiaries is in default under or with respect to any agreement, instrument or
undertaking to which it is a party or by which it or any of its Property is
bound which could have or cause a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 4.13 Full Disclosure. All information heretofore furnished by the
Borrower to the Administrative Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Borrower to the Administrative
Agent or any Bank will be, as of the date furnished, true, accurate and complete
in every material respect or based on reasonable estimates on the date as of
which such information is stated or certified. The Borrower has disclosed to the
Banks in writing any and all facts which create a reasonable possibility of
having or causing, to the extent the Borrower can reasonably foresee, a Material
Adverse Effect.
SECTION 4.14 Environmental Matters.
(a) Other than as described in the Form 10-K filed by the Borrower with the
SEC with respect to the Fiscal Year ended December 31, 1998 and in any Form 10-Q
or Form 8-K filed by the Borrower with the SEC for any subsequent period or as
reflected in or reserved against in the financial statements of the Borrower
referenced in Section 4.04(a) or as disclosed in writing prior to the Closing
Date, neither the Borrower nor any Subsidiary is subject to any Environmental
Liability which is reasonably likely to have a Material Adverse Effect and
neither the Borrower nor any Subsidiary has been designated as a potentially
responsible party under CERCLA or under any state statute similar to CERCLA with
respect to any matter or matters which, individually or in the aggregate, is
reasonably likely to have a Material Adverse Effect. Other than as described in
the Form 10-K filed by the Borrower with the SEC with respect to the Fiscal Year
ended December 31, 1998 and in any Form 10-Q or Form 8-K filed by the Borrower
with the SEC for any subsequent period or as reflected in or reserved against in
the financial statements of the Borrower referenced in Section 4.04(a) or as
disclosed in writing prior to the Closing Date, none of the Properties has been
identified on any current or proposed (i) National Priorities List under 40
C.F.R. ss. 300, (ii) CERCLIS list or (iii) any list arising from a state statute
similar to CERCLA relating to any matter or matters which, individually or in
the aggregate, is reasonably likely to have a Material Adverse Effect.
(b) Except as disclosed to the Administrative Agent and the Banks in
writing prior to the Closing Date, no Hazardous Materials have been or are being
used, produced, manufactured, processed, generated, stored, disposed of, managed
at, or shipped or transported to or from the Properties or are otherwise present
at, on, in or under the Properties except for (i) Hazardous Materials used,
produced, manufactured, processed, generated, stored, disposed of, and managed
in the ordinary course of business in material compliance with all applicable
Environmental Requirements or (ii) other Hazardous Materials the unlawful
handling, discharge or disposal of which is not reasonably expected to have a
Material Adverse Effect.
(c) The Borrower, and each of its Subsidiaries, has procured all
Environmental Authorizations necessary for the conduct of its business, and is
in material compliance with all
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Environmental Requirements in connection with the operation of the Properties
and the Borrower's, and each of its Subsidiary's, respective businesses.
SECTION 4.15 Compliance with Laws. The Borrower and each Subsidiary is in
compliance with all applicable laws, including, without limitation, all
Environmental Laws, except where any failure to comply with any such laws would
not, alone or in the aggregate, have a Material Adverse Effect.
SECTION 4.16 Capital Stock. Except as disclosed in writing to the Banks and
the Administrative Agent prior to the Closing Date, all Capital Stock,
debentures, bonds, notes and all other securities of the Borrower and its
Subsidiaries presently issued and outstanding are validly and properly issued in
accordance with all applicable laws, including, but not limited to, the "Blue
Sky" laws of all applicable states and the federal securities laws. The issued
shares of Capital Stock (other than the Preferred Stock) of the Borrower's
Wholly Owned Subsidiaries are owned, directly or indirectly, by the Borrower
free and clear of any Lien or adverse claim. At least a majority of the issued
shares of capital stock of each of the Borrower's other Subsidiaries (other than
Wholly Owned Subsidiaries) is owned by the Borrower, directly or indirectly,
free and clear of any Lien or adverse claim.
SECTION 4.17 Margin Stock. Neither the Borrower nor any of its Subsidiaries
(other than SCANA Communications, Inc.) is engaged principally, or as one of its
important activities, in the business of purchasing or carrying any Margin
Stock, and no part of the proceeds of any Loan will be used to extend credit to
others for the purpose of purchasing or carrying any Margin Stock, or be used
for any purpose which violates, or which is inconsistent with, the provisions of
Regulation X.
SECTION 4.18 Insolvency. After giving effect to the execution and delivery
of the Loan Documents and the making of the Loans under this Agreement, the
Borrower will not be "insolvent," within the meaning of such term as used in
O.C.G.A. ss. 18-2-22 or as defined in ss. 101 of Title 11 of the United States
Code or Section 2 of the Uniform Fraudulent Transfer Act, or any other
applicable state law pertaining to fraudulent transfers, as each may be amended
from time to time, or be unable to pay its debts generally as such debts become
due, or have an unreasonably small capital to engage in any business or
transaction, whether current or contemplated.
SECTION 4.19 Insurance. The Borrower maintains and each Subsidiary
maintains (either in the name of the Borrower or in such Subsidiary's own name),
with financially sound and reputable insurance companies, insurance on all of
its Properties in at least such amounts and against at least such risks as are
usually insured against in the same general area by companies of established
repute engaged in the same or similar business.
SECTION 4.20 Compliance with Year 2000 Plan. The Borrower has developed and
has delivered to the Agent and each of the Banks a comprehensive plan (the "Y2K
Plan") for insuring that the Borrower's and its Subsidiaries' software and
hardware systems which materially impact or affect in any material way the
business operations of the Borrower and its Subsidiaries will be Year 2000
Compliant and Ready. The Borrower and its Subsidiaries have met the Y2K Plan
milestones and
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expect that all hardware and software systems will be Year 2000 Compliant and
Ready in accordance with the Y2K Plan.
ARTICLE V.
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment hereunder
or any amount payable under any Note remains unpaid:
SECTION 5.01 Information. The Borrower will deliver to each of the Banks:
(a) within 120 days after the end of each Fiscal Year, a consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of
such Fiscal Year and the related consolidated statements of income, retained
earnings and cash flows for such Fiscal Year, setting forth in each case in
comparative form the figures for the previous fiscal year, together with the
report of Deloitte & Touche LLP, or other independent public accountants of
nationally recognized standing, with such report to be free of exceptions and
qualifications not acceptable to the Required Banks;
(b) within 60 days after the end of each of the first 3 Fiscal Quarters of
each Fiscal Year, (i) a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such Fiscal Quarter, (ii) the
statement of income for such Fiscal Quarter and for the portion of the Fiscal
Year ended at the end of such Fiscal Quarter, and (iii) the statement of cash
flows for the portion of the Fiscal Year ended at the end of such Fiscal
Quarter, setting forth (in the case of the items referred to in clauses (i) and
(ii) of this paragraph) in comparative form the figures for the corresponding
Fiscal Quarter and (in the case of the items referred to in clauses (i), (ii)
and (iii) of this paragraph) the corresponding portion of the previous Fiscal
Year, all certified (subject to normal recurring year-end adjustments) as to
fairness of presentation, GAAP and consistency by the chief financial officer or
the chief accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of financial statements
referred to in clauses (a) and (b) above, a certificate, substantially in the
form of Exhibit F (a "Compliance Certificate"), of the chief financial officer
or the chief accounting officer of the Borrower (i) setting forth in reasonable
detail the calculations required to establish whether the Borrower was in
compliance with the requirements of Sections 5.12, 5.13, 5.16, 5.17, 5.22 and
5.23 on the date of such financial statements and (ii) stating whether any
Default exists on the date of such certificate and, if any Default then exists,
setting forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(d) within 5 Domestic Business Days after the Borrower becomes aware of the
occurrence of any Default, a certificate of the chief financial officer or the
chief accounting officer of the Borrower setting forth the details thereof and
the action which the Borrower is taking or proposes to take with respect
thereto;
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(e) promptly upon the mailing thereof to the shareholders of the Borrower
generally, copies of all financial statements, reports and proxy statements so
mailed;
(f) promptly upon the filing thereof, copies of all registration statements
(other than the exhibits thereto and any registration statements on Form S-8 or
its equivalent) and annual, quarterly or monthly reports which the Borrower
shall have filed with the SEC or any other filings the Borrower is required to
make with the SEC under PUHCA;
(g) if and when the Borrower or any member of the Controlled Group (i)
gives or is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of ERISA, or
knows that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such reportable
event given or required to be given to the PBGC; (ii) receives notice of
complete or partial withdrawal liability under Title IV of ERISA, a copy of such
notice; or (iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate or appoint a trustee to administer any Plan, a copy of such
notice;
(h) promptly after the Borrower knows of the commencement thereof, notice
of any litigation or proceeding, or dispute that has a reasonable possibility of
resulting in any litigation or a proceeding, involving a claim against the
Borrower and/or any Subsidiary for $5,000,000 or more in excess of amounts
covered in full by applicable insurance;
(i) within five (5) Domestic Business Days after the Borrower becomes aware
of any material deviations from the Y2K Plan which would cause compliance with
the Y2K Plan to be delayed or not achieved, a statement of the chief executive
officer, chief financial officer, or chief technology officer of the Borrower
setting forth the details thereof and the action with the Borrower is taking or
proposes to take with respect thereto;
(j) promptly upon the receipt thereof, a copy of any third party
assessments of the Borrower's Y2K Plan together with any recommendations made by
such third party with respect to Year 2000 compliance;
(k) promptly, but in no event later than three (3) Domestic Business Days
after an officer of the Borrower obtains knowledge thereof, telephonic and
written notice of any change in the Borrower's Debt Rating; and
(l) from time to time such additional information regarding the financial
position or business of the Borrower and its Subsidiaries as the Administrative
Agent, at the request of any Bank, may reasonably request.
SECTION 5.02 Inspection of Property, Books and Records. The Borrower will
(i) keep, and will cause each Subsidiary to keep, proper books of record and
account in which full, true and correct entries in conformity with GAAP shall be
made of all dealings and transactions in relation to its business and
activities; and (ii) permit, and will cause each Subsidiary to permit,
representatives of any Bank (at such Bank's expense prior to the occurrence of
an Event of Default and at the
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Borrower's expense after the occurrence of an Event of Default) to visit and
inspect any of their respective properties, to examine and make abstracts from
any of their respective books and records and to discuss their respective
affairs, finances and accounts with their respective officers, employees and
independent public accountants. The Borrower agrees to cooperate and assist in
such visits and inspections, in each case upon reasonable notice and at such
reasonable times and as often as may reasonably be desired.
SECTION 5.03 Maintenance of Existence. The Borrower shall, and shall cause
each Subsidiary to, maintain its corporate existence and carry on its business
in substantially the same manner and in substantially the same fields as such
business is now carried on and maintained except where the failure to maintain
the corporate existence of any Subsidiary or the failure of any Subsidiary to
carry on its business as now conducted could not reasonably be expected to have
a Material Adverse Effect.
SECTION 5.04 Dissolution. Neither the Borrower nor any of its Material
Subsidiaries shall suffer or permit dissolution or liquidation either in whole
or in part or redeem or retire any shares of its own stock or that of any
Subsidiary, except (i) through corporate reorganization to the extent permitted
by Section 5.17 and (ii) Permitted Redemptions.
SECTION 5.05 Use of Proceeds. The proceeds of the Loans will be used by the
Borrower solely for the purpose of consummating the Mergers (as defined in the
Merger Agreement) as described in the Merger Agreement, and to pay related
transaction fees and expenses. No portion of the proceeds of the Loans will be
used by the Borrower or any Subsidiary (i) in connection with, either directly
or indirectly, any tender offer for, or other acquisition of, stock of any
corporation with a view towards obtaining control of such other corporation
(other than as described in the immediately preceding sentence), (ii) directly
or indirectly, for the purpose, whether immediate, incidental or ultimate, of
purchasing or carrying any Margin Stock (other than as described in the
immediately preceding sentence), or (iii) for any purpose in violation of any
applicable law or regulation.
SECTION 5.06 Compliance with Laws; Payment of Taxes. The Borrower will, and
will cause each of its Subsidiaries and each member of the Controlled Group to,
comply with applicable laws (including but not limited to ERISA), regulations
and similar requirements of governmental authorities (including but not limited
to PBGC), except (a) where the necessity of such compliance is being contested
in good faith through appropriate proceedings diligently pursued or (b) where
the failure to so comply would not have or cause a Material Adverse Effect. The
Borrower will, and will cause each of its Subsidiaries to, pay promptly when due
all taxes, assessments, governmental charges, claims for labor, supplies, rent
and other obligations which, if unpaid, might become a lien against the property
of the Borrower or any Subsidiary, except (x) liabilities being contested in
good faith by appropriate proceedings diligently pursued and against which, if
requested by the Administrative Agent, the Borrower shall have set up reserves
in accordance with GAAP, or (y) where nonpayment would not have or cause a
Material Adverse Effect.
SECTION 5.07 Insurance. The Borrower will maintain, and will cause each of
its Subsidiaries to maintain (either in the name of the Borrower or in such
Subsidiary's own name), with
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financially sound and reputable insurance companies, insurance on all its
Properties in at least such amounts and against at least such risks as are
usually insured against in the same general area by companies of established
repute engaged in the same or similar business.
SECTION 5.08 Maintenance of Property. The Borrower shall, and shall cause
each Subsidiary to, maintain all of its Properties and assets in good condition,
repair and working order, ordinary wear and tear excepted, in accordance with
standards observed by companies of established repute engaged in the same or
similar business as the Borrower and its Subsidiaries, as applicable, except
where the failure to so maintain its Properties and assets will not have or
cause a Material Adverse Effect.
SECTION 5.09 Environmental Notices. The Borrower shall furnish to the Banks
and the Administrative Agent prompt written notice of all Environmental
Liabilities, pending, threatened or anticipated Environmental Proceedings,
Environmental Notices, Environmental Judgments and Orders, and Environmental
Releases at, on, in, under or in any way affecting the Properties or, to the
extent that the Borrower has actual notice thereof, any adjacent property, and
all facts, events, or conditions that could lead to any of the foregoing;
provided, however, that the Borrower shall not be required to give such notice
unless it reasonably believes that any of the foregoing, individually or in the
aggregate, will have or cause a Material Adverse Effect.
SECTION 5.10 Environmental Matters. The Borrower and its Subsidiaries will
not, and will not permit any Third Party to, use, produce, manufacture, process,
generate, store, dispose of, manage at, or ship or transport to or from the
Properties any Hazardous Materials other than as disclosed to the Banks in
writing at or prior to the Closing Date except for (i) Hazardous Materials used,
produced, manufactured, processed, generated, stored, disposed of or managed in
the ordinary course of business in material compliance with all applicable
Environmental Requirements or (ii) other Hazardous Materials the unlawful
handling, discharge or disposal of which is not reasonably expected to have or
cause a Material Adverse Effect.
SECTION 5.11 Environmental Release. The Borrower agrees that upon the
occurrence of an Environmental Release at or on any of the Properties it will
act immediately to investigate the extent of, and to take appropriate remedial
action, whether or not ordered or otherwise directed to do so by any
Environmental Authority.
SECTION 5.12 Restricted Payments. The Borrower will not make Restricted
Payments in any Fiscal Year in an aggregate amount in excess of an amount equal
to 70% of Consolidated Net Income for such Fiscal Year; provided that after
giving effect to the payment of any such Restricted Payments, no Default shall
have occurred and be continuing.
SECTION 5.13 Loans or Advances. Neither the Borrower nor any of its
Subsidiaries shall make loans or advances to any Person except: (i) loans or
advances to employees not exceeding $2,000,000 in the aggregate outstanding made
in the ordinary course of business and consistently with practices existing on
the Closing Date; (ii) deposits required by government agencies or public
utilities; (iii) loans or advances to Wholly Owned Subsidiaries; and (iv) loans
or advances in addition to those permitted by the foregoing clauses (i) through
(iii) in an aggregate amount not exceeding
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$60,000,000 at any one time outstanding; provided that after giving effect to
the making of any loans, advances or deposits permitted by clause (i), (ii),
(iii) or (iv) of this Section, no Default shall have occurred and be continuing.
SECTION 5.14 Acquisitions. Neither the Borrower nor any of its Subsidiaries
shall make any Acquisitions, provided that Permitted Acquisitions may be made
if, after giving effect thereto, no Default would be caused thereby (giving
effect thereto on a pro forma basis as to financial covenants).
SECTION 5.15 Investments. Neither the Borrower nor any of its Subsidiaries
shall make Investments in any Person except as permitted by Section 5.13 and
except Investments (i) in direct obligations of the United States Government
maturing within one year, (ii) in certificates of deposit issued by a commercial
bank whose credit is satisfactory to the Administrative Agent, (iii) in
commercial paper rated A-1 or the equivalent thereof by S&P or P-1 or the
equivalent thereof by ▇▇▇▇▇'▇ and in either case maturing within 6 months after
the date of acquisition, (iv) in tender bonds the payment of the principal of
and interest on which is fully supported by a letter of credit issued by a
United States bank whose long-term certificates of deposit are rated at least AA
or the equivalent thereof by S&P and Aa or the equivalent thereof by ▇▇▇▇▇'▇,
(v) in a municipal revenue bond or bonds in an aggregate principal amount not to
exceed $16,900,000 issued to finance the construction of a parking garage in the
▇▇▇▇▇▇▇ Park area of Charleston, South Carolina, (vi) in Permitted Acquisitions,
(vii) in Powertel, Inc., ITC Holding Company, Inc., ITC^DeltaCom, Inc., and
Knology Holdings, Inc. existing on the Closing Date (and any Investments made or
deemed made solely as a result of the conversion of such Investments into other
Investments made pursuant to a warrant, option or conversion right exercised by
the Borrower or any Subsidiary on terms in existence on the Closing Date),
(viii) in Wholly Owned Subsidiaries, and (ix) in addition to those permitted by
the foregoing clauses (i) through (viii) in an aggregate amount not exceeding
$25,000,000.
SECTION 5.16 Negative Pledge. Nothing in this Agreement shall in any way
restrict or prevent Borrower from incurring any Debt; provided that the Borrower
shall not incur any Debt secured by any Lien, or suffer to exist any Lien, upon
or with respect to its Properties, whether now owned or hereafter acquired,
without effectively providing that the Loans then outstanding and thereafter
created (together with any other Debt or obligations then existing and any other
indebtedness or obligation thereafter created ranking equally with the Loans
then existing or thereafter created which is not subordinated to the Loans)
shall be secured equally and ratably with (or prior to) such Debt or obligations
so long as such Debt or obligation is so secured, except that the foregoing
provision shall not apply to:
(a) Liens encumbering premises, land and interests in land or other
property, real, personal, intangible or mixed, used or to be used in or in
connection with Borrower's natural gas utility business;
(b) Liens consisting of (i) pledges or deposits in the ordinary course of
business to secure obligations under workmen's compensation laws or similar
legislation, including liens of judgments thereunder which are not currently
dischargeable, (ii) deposits in the ordinary course of business to secure or in
lieu of surety, appeal or customs bonds to which the Borrower is a party, (iii)
liens
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created by or resulting from any litigation or legal proceeding which is
currently being contested in good faith by appropriate proceedings diligently
conducted, (iv) pledges or deposits in the ordinary course of business to secure
performance in connection with bids, tenders or contracts (other than contracts
for the payment of money) or (v) materialmen's, mechanics', carriers',
workmen's, repairmen's or other like Liens incurred in the ordinary course of
business for sums not yet due or currently being contested in good faith by
appropriate proceedings diligently conducted, or deposits to obtain the release
of such liens;
(c) Liens created to secure indebtedness representing, or incurred to
finance, the cost of property acquired, constructed or improved by the Borrower
or any subsidiary in the ordinary course of business after the date hereof or
Liens existing on such property at the time of acquisition thereof or attaching
to such property within 18 months of the acquisition thereof;
(d) any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into the Borrower and not created
in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof by the
Borrower and not created in contemplation of such acquisition;
(f) Liens incidental to the conduct of its business or the ownership of its
assets which (i) do not secure Debt and (ii) do not in the aggregate materially
detract from the value of its assets or materially impair the use thereof in the
operation of its business;
(g) any Lien on Margin Stock;
(h) Liens on property (including any natural gas, oil or other mineral
property) to secure all or a part of the cost of exploration, drilling or
development thereof or to secure Debt incurred to provide funds for any such
purpose;
(i) Liens and security interests created, incurred or assumed in connection
with the purchase, lease, financing or refinancing of pollution control
facilities;
(j) Liens created to secure sales of accounts receivable and other
receivables; and
(k) Liens created for the sole purpose of extending, renewing or replacing
in whole or in part Debt secured by any Lien, mortgage or security interest
referred to in the foregoing subsections (a) through (j); provided, however,
that the principal amount of Debt or obligations secured thereby shall not
exceed the principal amount of Debt or obligations so secured at the time of
such extension, renewal or replacement and that such extension, renewal or
replacement, as the case may be, shall be limited to all or a part of the
property that secured the lien or mortgage so extended, renewed or replaced (and
any improvements on such property).
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SECTION 5.17 Consolidations, Mergers and Sales of Assets.
(a) Subject to the provisions of Section 2.08(b), the Borrower will not
consolidate or merge with or into, or sell, lease or otherwise transfer all or
any substantial part of its assets to, any other Person (other than mergers and
consolidations with any Wholly Owned Subsidiary in which the Borrower is the
surviving or resulting entity), or discontinue or eliminate any business line or
segment if such discontinuation or elimination could reasonably be expected to
cause a Material Adverse Effect, provided that the Borrower may merge with
another Person if (i) such Person was organized under the laws of the United
States of America or one of its states, (ii) the Borrower is the corporation
surviving such merger and (iii) immediately after giving effect to such merger,
no Default shall have occurred and be continuing.
(b) Subject to the provisions of Section 2.08(b), the Borrower will not
permit any Subsidiary to consolidate or merge with or into, or sell, lease or
otherwise transfer all or any substantial part of its assets to, any other
Person (other than sales, leases or transfers to, or mergers, or consolidations
with, any Wholly Owned Subsidiary), or discontinue or eliminate any business
line or segment if such discontinuation or elimination could reasonably be
expected to cause a Material Adverse Effect.
SECTION 5.18 Change in Fiscal Year. The Borrower will not change its Fiscal
Year without the consent of the Required Banks.
SECTION 5.19 Compliance with ERISA. In addition to and without limiting the
generality of Section 5.06, the Borrower will, and will cause each Subsidiary
to, (i) comply in all material respects with all applicable provisions of ERISA
and the regulations and published interpretations thereunder with respect to all
Plans, (ii) not take any action or fail to take action the result of which could
be a liability to the PBGC or to a Multiemployer Plan except where any such
action or failure to act could not reasonably be expected to have a Material
Adverse Effect, and not participate in any prohibited transaction that could
result in any civil penalty under ERISA or tax under the Code and (iii) furnish
to the Administrative Agent or any Bank upon request such additional information
about any Plan or Multiemployer Plan as may be reasonably requested by the
Administrative Agent or such Bank.
SECTION 5.20 Maintenance of Ratings. The Borrower shall at all times
maintain Debt Ratings with S&P and ▇▇▇▇▇'▇ and such Debt Ratings shall be, with
respect to S&P, at least BBB- or higher and, with respect to ▇▇▇▇▇'▇, at least
Baa3 or higher.
SECTION 5.21 Transactions with Affiliates. Neither the Borrower nor any of
its Subsidiaries shall enter into, or be a party to, any transaction with any
Affiliate of the Borrower or such Subsidiary (which Affiliate is not the
Borrower or a Subsidiary), except as permitted by law and in the ordinary course
of business and pursuant to reasonable terms which are fully disclosed to the
Administrative Agent and the Banks, and are no less favorable to Borrower or
such Subsidiary than would be obtained in a comparable arm's length transaction
with a Person which is not an Affiliate.
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SECTION 5.22 Ratio of Consolidated Total Debt to Consolidated Total
Capitalization. The ratio of Consolidated Total Debt to Consolidated Total
Capitalization shall at all times be less than 0.70 to 1.00.
SECTION 5.23 Minimum Interest Coverage Ratio. At the end of each Fiscal
Quarter, commencing with the Fiscal Quarter ending December 31, 1999, the ratio
of Consolidated EBITDA for the immediately preceding four (4) Fiscal Quarters
then ended to Consolidated Interest Expense for the immediately preceding four
(4) Fiscal Quarters then ended shall be greater than 3.50 to 1.00.
SECTION 5.24 Subsidiaries.
(a) The Borrower shall maintain each Subsidiary (other than SCANA Energy
Trading LLC) at all times as a Wholly Owned Subsidiary.
(b) The Borrower shall not permit any Subsidiary to issue any Stock at any
time after the Closing Date other than (i) Stock sold to, and thereafter held
by, the Borrower or any Wholly Owned Subsidiary, (ii) directors' qualifying
shares, (iii) Additional Trust Preferred Securities, and (iv) preferred stock
having no voting rights that are exerciseable on or before the Maturity Date.
(c) Without in any way limiting Section 5.16, the Borrower shall not
directly or indirectly create, assume or suffer to exist any Lien on any Stock
of any Subsidiary.
(d) The Borrower shall not, nor shall it permit any of its Subsidiaries to,
enter into, after the Closing Date, any indenture, agreement, instrument or
other arrangement that directly or indirectly prohibits or restrains, or has the
effect of prohibiting or restraining, the right or ability of any Subsidiary to
(i) pay or declare any dividend to or in favor of the Borrower, or (ii) make any
payment of any kind to the Borrower.
SECTION 5.25 Public Utility Holding Company Act. The Borrower shall file
with the SEC, on a timely basis, all annual reports, registration statements,
forms and other documents required to be filed by the Borrower as a "registered
holding company" under PUHCA. The Borrower shall provide prompt written notice
to the Banks and the Administrative Agent of all orders, rulings, and notices
issued, and all actions taken, by the SEC pursuant to PUHCA with respect to the
Borrower or any Subsidiary that could reasonably be expected to have a Material
Adverse Effect.
ARTICLE VI.
DEFAULTS
SECTION 6.01 Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay any principal of or any interest on any
Loan or shall fail to pay any fee or other amount payable hereunder when due; or
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(b) the Borrower shall fail to observe or perform any covenant contained in
Section 5.01(e), 5.01(k), 5.02(ii), 5.03, 5.04, 5.05, 5.12 to 5.18, inclusive,
or 5.20 to 5.23, inclusive; or
(c) the Borrower shall fail to observe or perform any covenant or agreement
contained or incorporated by reference in this Agreement (other than those
covered by clause (a) or (b) above) for thirty days after the earlier of (i) the
first day on which the Borrower has knowledge of such failure or (ii) written
notice thereof has been given to the Borrower by the Administrative Agent at the
request of any Bank; or
(d) any representation, warranty, certification or statement made or deemed
made by the Borrower in Article IV of this Agreement or in any certificate,
financial statement or other document delivered pursuant to this Agreement shall
prove to have been incorrect in any material respect when made (or deemed made);
or
(e) the Borrower or any Subsidiary shall fail to make any payment in
respect of Debt outstanding in an aggregate principal amount in excess of
$10,000,000 (other than the Notes) when due or within any applicable grace
period; or
(f) any event or condition shall occur which results in the acceleration of
the maturity of Debt outstanding of the Borrower or any Subsidiary in an
aggregate principal amount in excess of $10,000,000 or the mandatory prepayment
or purchase of such Debt by the Borrower (or its designee) or such Subsidiary
(or its designee) prior to the scheduled maturity of a sinking fund retirement
thereof, or enables (or, with the giving of notice or lapse of time or both,
would enable) the holders of such Debt or any Person acting on such holders'
behalf to accelerate the maturity of a sinking fund retirement thereof or
require the mandatory prepayment or purchase thereof prior to the scheduled
maturity thereof, without regard to whether such holders or other Person shall
have exercised or waived their right to do so; or
(g) the Borrower or any Subsidiary shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally, or shall admit in writing its
inability, to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing; or
(h) an involuntary case or other proceeding shall be commenced against the
Borrower or any Subsidiary seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrower or any Subsidiary under the federal
bankruptcy laws as now or hereafter in effect; or
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(i) the Borrower or any member of the Controlled Group shall fail to pay
when due any material amount which it shall have become liable to pay to the
PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a
Plan or Plans shall be filed under Title IV of ERISA by the Borrower, any member
of the Controlled Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate or to cause a trustee to be appointed to administer any such Plan or
Plans or a proceeding shall be instituted by a fiduciary of any such Plan or
Plans to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall
not have been dismissed within 30 days thereafter; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating that
any such Plan or Plans must be terminated; or
(j) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $5,000,000 shall be rendered against the Borrower
or any Subsidiary and such judgment or order shall continue unsatisfied and
unstayed for a period of 45 days; or
(k) a federal tax lien shall be filed against the Borrower or any
Subsidiary under Section 6323 of the Code or a lien of the PBGC shall be filed
against the Borrower or any Subsidiary under Section 4068 of ERISA and such
liens shall, individually or in the aggregate, exceed $5,000,000 and remain
undischarged for a period of 25 days after the date of filing; or
(l) failure by the Borrower or any Subsidiary to maintain, or loss by the
Borrower or any Subsidiary of, any necessary public utility or other license,
permit or authorization (including without limitation any such license, permit
or authorization required under PUHCA) where any such failure or loss could
reasonably be expected to have a Material Adverse Effect; or
(m) all or any substantial part of the Properties of the Borrower or any
Material Subsidiary shall be condemned, seized or appropriated; or
(n) the SEC shall issue any order, ruling, or notice, or take any other
action, pursuant to PUHCA with respect to the Borrower or any Subsidiary which
the Administrative Agent determines could reasonably be expected to have a
Material Adverse Effect; or
(o) (i) any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the SEC under
the Securities Exchange Act of 1934) of 20% or more of the outstanding shares of
the voting stock of the Borrower; or (ii) as of any date a majority of the Board
of Directors of the Borrower consists of individuals (other than individuals
selected or appointed in connection with the consummation of the Mergers (as
defined in the Merger Agreement)) who were not either (A) directors of the
Borrower as of the corresponding date of the previous year, (B) selected or
nominated to become directors by the Board of Directors of the Borrower of which
a majority consisted of individuals described in clause (A), or (C) selected or
nominated to become directors by the Board of Directors of the Borrower of which
a majority consisted of individuals described in clause (A) and individuals
described in clause (B);
then, and in every such event, the Administrative Agent shall (i) if requested
by the Required Banks, by notice to the Borrower terminate the Commitments and
they shall thereupon terminate, and (ii) if
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requested by the Required Banks, by notice to the Borrower declare the Notes
(together with accrued interest thereon) and all other amounts payable hereunder
and under the other Loan Documents to be, and the Notes (together will all
accrued interest thereon) and all other amounts payable hereunder and under the
other Loan Documents shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; provided that if any Event of Default specified
in clause (g) or (h) above occurs with respect to the Borrower, without any
notice to the Borrower or any other act by the Administrative Agent or the
Banks, the Commitments shall thereupon automatically terminate and the Notes
(together with accrued interest thereon) and all other amounts payable hereunder
and under the other Loan Documents shall automatically become immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower. Notwithstanding the foregoing,
the Administrative Agent shall have available to it all other remedies at law or
equity, and shall exercise any one or all of them at the request of the Required
Banks.
SECTION 6.02 Notice of Default. The Administrative Agent shall give notice
to the Borrower of any Default under Section 6.01(c) promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII.
THE ADMINISTRATIVE AGENT
SECTION 7.01 Appointment, Powers and Immunities. Each Bank hereby
irrevocably appoints and authorizes the Administrative Agent to act as its
administrative agent hereunder and under the other Loan Documents with such
powers as are specifically delegated to the Administrative Agent by the terms
hereof and thereof, together with such other powers as are reasonably incidental
thereto. The Administrative Agent: (a) shall have no duties or responsibilities
except as expressly set forth in this Agreement and the other Loan Documents,
and shall not by reason of this Agreement or any other Loan Document be a
trustee for any Bank; (b) shall not be responsible to the Banks for any
recitals, statements, representations or warranties contained in this Agreement
or any other Loan Document, or in any certificate or other document referred to
or provided for in, or received by any Bank under, this Agreement or any other
Loan Document, or for the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document or any other
document referred to or provided for herein or therein or for any failure by the
Borrower to perform any of its obligations hereunder or thereunder; (c) shall
not be required to initiate or conduct any litigation or collection proceedings
hereunder or under any other Loan Document except to the extent requested by the
Required Banks, and then only on terms and conditions satisfactory to the
Administrative Agent, and (d) shall not be responsible for any action taken or
omitted to be taken by it hereunder or under any other Loan Document or any
other document or instrument referred to or provided for herein or therein or in
connection herewith or therewith, except for its own gross negligence or willful
misconduct. The Administrative Agent may employ agents and attorneys-in-fact and
shall not be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The provisions of this
Article VII are solely for the benefit of the Administrative Agent and the
Banks, and the Borrower shall not have any rights as a third party beneficiary
of any of the provisions hereof. In performing its functions and duties under
this
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Agreement and under the other Loan Documents, the Administrative Agent shall act
solely as agent of the Banks and does not assume and shall not be deemed to have
assumed any obligation towards or relationship of agency or trust with or for
the Borrower. The duties of the Administrative Agent shall be ministerial and
administrative in nature, and the Administrative Agent shall not have by reason
of this Agreement or any other Loan Document a fiduciary relationship in respect
of any Bank.
SECTION 7.02 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telefax, telegram or cable) believed by it
to be genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants or other experts selected by the Administrative Agent.
As to any matters not expressly provided for by this Agreement or any other Loan
Document, the Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder and thereunder in accordance
with instructions signed by the Required Banks, and such instructions of the
Required Banks in any action taken or failure to act pursuant thereto shall be
binding on all of the Banks.
SECTION 7.03 Defaults. The Administrative Agent shall not be deemed to have
knowledge of the occurrence of a Default (other than the non-payment of
principal of or interest on the Loans) unless the Administrative Agent has
received notice from a Bank or the Borrower specifying such Default and stating
that such notice is a "Notice of Default". In the event that the Administrative
Agent receives such a notice of the occurrence of a Default, the Administrative
Agent shall give prompt notice thereof to the Banks. The Administrative Agent
shall give each Bank prompt notice of each non-payment of principal of or
interest on the Loans, whether or not it has received any notice of the
occurrence of such non-payment. The Administrative Agent shall (subject to
Section 9.05) take such action with respect to such Default as shall be directed
by the Required Banks, provided that, unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable in the best interests of the
Banks.
SECTION 7.04 Rights of Administrative Agent and its Affiliates as a Bank.
With respect to any Loan made by Wachovia or an Affiliate of Wachovia, such
Affiliate and Wachovia in their capacity as a Bank hereunder shall have the same
rights and powers hereunder as any other Bank and may exercise the same as
though it were not an Affiliate of Wachovia (or in Wachovia's case, acting as
the Administrative Agent), and the term "Bank" or "Banks" shall, unless the
context otherwise indicates, include such Affiliate of Wachovia or Wachovia in
its individual capacity. Such Affiliate and Wachovia may (without having to
account therefor to any Bank) accept deposits from, lend money to and generally
engage in any kind of banking, trust or other business with the Borrower (and
any of its Affiliates) as if they were not an Affiliate of the Administrative
Agent or acting as the Administrative Agent, respectively; and such Affiliate
and Wachovia may accept fees and other consideration from the Borrower (in
addition to any agency fees and arrangement fees heretofore agreed to between
the Borrower and Wachovia) for services in connection with this Agreement or any
other Loan Document or otherwise without having to account for the same to the
Banks.
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SECTION 7.05 Indemnification. Each Bank severally agrees to indemnify the
Administrative Agent, to the extent the Administrative Agent shall not have been
reimbursed by the Borrower, ratably in accordance with its Commitment, for any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including, without limitation, counsel fees
and disbursements) or disbursements of any kind and nature whatsoever which may
be imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of this Agreement or any other Loan Document or
any other documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby (excluding, unless a Default has
occurred and is continuing, the normal administrative costs and expenses
incident to the performance of its agency duties hereunder) or the enforcement
of any of the terms hereof or thereof or any such other documents; provided,
however, that no Bank shall be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of the Administrative
Agent. If any indemnity furnished to the Administrative Agent for any purpose
shall, in the opinion of the Administrative Agent, be insufficient or become
impaired, the Administrative Agent may call for additional indemnity and cease,
or not commence, to do the acts indemnified against until such additional
indemnity is furnished.
SECTION 7.06 CONSEQUENTIAL DAMAGES. THE ADMINISTRATIVE AGENT SHALL NOT BE
RESPONSIBLE OR LIABLE TO ANY BANK, THE BORROWER OR ANY OTHER PERSON OR ENTITY
FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A
RESULT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.07 Payee of Note Treated as Owner. The Administrative Agent may
deem and treat the payee of any Note as the owner thereof for all purposes
hereof unless and until a written notice of the assignment or transfer thereof
shall have been filed with the Administrative Agent and the provisions of
Section 9.07(c) have been satisfied. Any requests, authority or consent of any
Person who at the time of making such request or giving such authority or
consent is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee or assignee of that Note or of any Note or Notes
issued in exchange therefor or replacement thereof.
SECTION 7.08 Non-Reliance on Administrative Agent and Other Banks. Each
Bank agrees that it has, independently and without reliance on the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Borrower and decision to enter into this Agreement and that it will,
independently and without reliance upon the Administrative Agent or any other
Bank, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or not
taking action under this Agreement or any of the other Loan Documents. The
Administrative Agent shall not be required to keep itself (or any Bank) informed
as to the performance or observance by the Borrower of this Agreement or any of
the other Loan Documents or any other document referred to or provided for
herein or therein or to inspect the properties or books of the Borrower or any
other Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Administrative Agent
hereunder or under the other Loan Documents, the Administrative Agent shall not
have any duty or
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responsibility to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of the Borrower or any
other Person (or any of their Affiliates) which may come into the possession of
the Administrative Agent.
SECTION 7.09 Failure to Act. Except for action expressly required of the
Administrative Agent hereunder or under the other Loan Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction by the Banks of their indemnification obligations
under Section 7.05 against any and all liability and expense which may be
incurred by the Administrative Agent by reason of taking, continuing to take, or
failing to take any such action.
SECTION 7.10 Resignation or Removal of Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Banks and the Borrower and the Administrative Agent may be removed at any
time with or without cause by the Required Banks. Upon any such resignation or
removal, the Required Banks shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Required Banks and shall have accepted such appointment within
30 days after the retiring Administrative Agent's notice of resignation or the
Required Banks' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent. Any successor Administrative Agent shall be a bank which
has a combined capital and surplus of at least $500,000,000. 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 retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as the Administrative Agent hereunder.
ARTICLE VIII.
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01 Basis for Determining Interest Rate Inadequate or Unfair. If
on or prior to the first day of any Interest Period:
(a) the Administrative Agent determines that deposits in Dollars (in the
applicable amounts) are not being offered in the relevant market for such
Interest Period, or
(b) the Required Banks advise the Administrative Agent that the London
Interbank Offered Rate, as the case may be, as determined by the Administrative
Agent will not adequately and fairly reflect the cost to such Banks of funding
the Euro-Dollar Loans for such Interest Period,
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the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, the
obligations of the Banks to make or maintain the Euro-Dollar Loans specified in
such notice shall be suspended and the Loans shall be Base Rate Loans.
SECTION 8.02 Illegality. If, after the date hereof, the adoption of any
applicable law, rule or regulation, or any change in any existing or future law,
rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof (any such authority, bank or
agency being referred to as an "Authority" and any such event being referred to
as a "Change of Law"), or compliance by any Bank (or its Lending Office) with
any request or directive (whether or not having the force of law) of any
Authority shall make it unlawful or impossible for any Bank (or its Lending
Office) to make, maintain or fund its Loan as a Euro-Dollar Loan and such Bank
shall so notify the Administrative Agent, the Administrative Agent shall
forthwith give notice thereof to the other Banks and the Borrower, whereupon
until such Bank notifies the Borrower and the Administrative Agent that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Bank to make, maintain or fund its Loan as a Euro-Dollar Loan shall be
suspended. Before giving any notice to the Administrative Agent pursuant to this
Section, such Bank shall designate a different Lending Office if such
designation will avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. If such Bank
shall determine that it may not lawfully continue to maintain and fund its Loan
as a Euro-Dollar Loan until maturity and shall so specify in such notice, such
Loan shall immediately be converted to a Base Rate Loan and in connection with
such conversion the Borrower shall pay any amount due such Bank pursuant to
Section 8.05(a).
SECTION 8.03 Increased Cost and Reduced Return.
(a) If after the date hereof, a Change of Law or compliance by any Bank (or
its Lending Office) with any request or directive (whether or not having the
force of law) of any Authority:
(i) shall subject any Bank (or its Lending Office) to any tax, duty or
other charge with respect to its Loan while it is a Euro-Dollar Loan, its
Note or its obligation to make or maintain its Loan as a Euro-Dollar Loan,
or shall change the basis of taxation of payments to any Bank (or its
Lending Office) of the principal of or interest on its Euro-Dollar Loans or
any other amounts due under this Agreement in respect of its Loan while it
is a Euro-Dollar Loan or its obligation to make or maintain its Loan as a
Euro-Dollar Loan (except for changes in the rate of tax on the overall net
income of such Bank or its Lending Office imposed by the jurisdiction in
which such Bank's principal executive office or Lending Office is located);
or
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding with respect to any Euro-Dollar Loan any such
requirement included in an applicable Euro-Dollar Reserve Percentage)
against
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assets of, deposits with or for the account of, or credit extended by, any
Bank (or its Lending Office); or
(iii) shall impose on any Bank (or its Lending Office) or on the
United States market for certificates of deposit or the London interbank
market any other condition affecting its Loan while it is a Euro-Dollar
Loan, its Note or its obligation to make or maintain its Loan as a
Euro-Dollar Loan;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining its Loan as a Euro-Dollar Loan, or
to reduce the amount of any sum received or receivable by such Bank (or its
Lending Office) under this Agreement or under its Notes with respect thereto, by
an amount deemed by such Bank to be material, then, within 15 days after demand
by such Bank (with a copy to the Administrative Agent), the Borrower shall pay
to such Bank such additional amount or amounts as will compensate such Bank for
such increased cost or reduction; provided, however, that the Borrower shall
have no liability hereunder for any amount allocable to a period earlier than
ninety (90) days before the date of such demand.
(b) If any Bank shall have determined that after the date hereof the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any existing or future law, rule or regulation, or any change
in the interpretation or administration thereof, or compliance by any Bank (or
its Lending Office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any Authority, has or would have the
effect of reducing the rate of return on such Bank's capital as a consequence of
its obligations hereunder to a level below that which such Bank could have
achieved but for such adoption, change or compliance (taking into consideration
such Bank's policies with respect to capital adequacy) by an amount deemed by
such Bank to be material, then from time to time, within 15 days after demand by
such Bank, the Borrower shall pay to such Bank such additional amount or amounts
as will compensate such Bank for such reduction; provided, however, that the
Borrower shall have no liability hereunder for any amount allocable to a period
earlier than ninety (90) days before the date of such demand.
(c) Each Bank will promptly notify the Borrower and the Administrative
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Bank to compensation pursuant to this Section and will
designate a different Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the judgment of
such Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
(d) The provisions of this Section 8.03 shall be applicable with respect to
any Participant, Assignee or other Transferee, and any calculations required by
such provisions shall be made based upon the circumstances of such Participant,
Assignee or other Transferee.
SECTION 8.04 Conversion of Affected Euro-Dollar Loans to Base Rate Loans.
If (i) the obligation of any Bank to make or maintain its Loan as a Euro-Dollar
Loan has been suspended
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pursuant to Section 8.02 or (ii) any Bank has demanded compensation under
Section 8.03, then, unless and until such Bank notifies the Borrower that the
circumstances giving rise to such suspension or demand for compensation no
longer apply, such Bank's Loan shall be converted to a Base Rate Loan. In the
event that the Borrower shall elect that the provisions of this Section shall
apply to any Bank, the Borrower shall remain liable for, and shall pay to such
Bank as provided herein, all amounts due such Bank under Section 8.03 in respect
of the period preceding the date of conversion of such Bank's Loans resulting
from the Borrower's election.
SECTION 8.05 Compensation. Upon the request of any Bank, delivered to the
Borrower and the Administrative Agent, the Borrower shall pay to such Bank such
amount or amounts as shall compensate such Bank for any loss, cost or expense
incurred by such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.07, Section 2.08,
Section 8.02 or otherwise) of a Euro-Dollar Loan on a date other than the last
day of an Interest Period for such Euro-Dollar Loan;
(b) any failure by the Borrower to prepay a Euro-Dollar Loan on the date
for such prepayment specified in the relevant notice of prepayment hereunder; or
(c) any failure by the Borrower to borrow a Loan which is to be a
Euro-Dollar Loan on the Term Loan Draw Date as specified in the Notice of
Borrowing delivered pursuant to Section 3.02;
such compensation to include, without limitation, an amount equal to the excess,
if any, of (x) the amount of interest which would have accrued on the amount so
paid or prepaid or not prepaid or borrowed for the period from the date of such
payment, prepayment or failure to prepay or borrow to the last day of the then
current Interest Period for such Euro-Dollar Loan (or, in the case of a failure
to prepay or borrow, the Interest Period for such Euro-Dollar Loan which would
have commenced on the date of such failure to prepay or borrow) at the
applicable rate of interest for such Euro-Dollar Loan provided for herein over
(y) the amount of interest (as reasonably determined by such Bank) such Bank
would have paid on deposits in Dollars of comparable amounts having terms
comparable to such period placed with it by leading banks in the London
interbank market (if such Loan is a Euro-Dollar Loan).
ARTICLE IX.
MISCELLANEOUS
SECTION 9.01 Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile transmission or similar
writing) and shall be given to such party at its address or telecopy number set
forth on the signature pages hereof or such other address or telecopy number as
such party may hereafter specify for the purpose by notice to each other party.
Each such notice, request or other communication shall be effective (i) if given
by telecopier, when such telecopy is transmitted to the telecopy number
specified in this Section and the telecopy machine used by the sender provides a
written confirmation that such telecopy has been so
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transmitted or receipt of such telecopy transmission is otherwise confirmed,
(ii) if given by mail, 72 hours after such communication is deposited in the
mails with first class postage prepaid, addressed as aforesaid, and (iii) if
given by any other means, when delivered at the address specified in this
Section; provided that notices to the Administrative Agent under Article II or
Article VIII shall not be effective until received.
SECTION 9.02 No Waivers. No failure or delay by the Administrative Agent or
any Bank in exercising any right, power or privilege hereunder or under any Note
or other Loan Document shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 9.03 Expenses; Documentary Taxes; Indemnification.
(a) The Borrower shall pay (i) all out-of-pocket expenses of the
Administrative Agent, including fees and disbursements of special counsel for
the Administrative Agent, in connection with the preparation of this Agreement
and the other Loan Documents, any waiver or consent hereunder or thereunder or
any amendment hereof or thereof or any Default hereunder or thereunder and (ii)
if a Default occurs, all out-of-pocket expenses incurred by the Administrative
Agent or any Bank, including fees and disbursements of counsel, in connection
with such Default and collection and other enforcement proceedings resulting
therefrom, including out-of-pocket expenses incurred in enforcing this Agreement
and the other Loan Documents.
(b) The Borrower shall indemnify the Administrative Agent and each Bank
against any transfer taxes, documentary taxes, assessments or charges made by
any Authority by reason of the execution and delivery of this Agreement or the
other Loan Documents (other than any Assignment and Acceptance); provided that
no Assignee or Transferee shall be entitled to receive any greater payment under
this paragraph (b) than the related transferor Bank would have been entitled to
receive.
(c) The Borrower shall indemnify the Administrative Agent, the Banks and
each Affiliate thereof and their respective directors, officers, employees and
agents from, and hold each of them harmless against, any and all losses,
liabilities, claims or damages to which any of them may become subject, insofar
as such losses, liabilities, claims or damages arise out of or result from any
use by the Borrower of the proceeds of any extension of credit by any Bank
hereunder or breach by the Borrower of this Agreement or any other Loan Document
or from investigation, litigation (including, without limitation, any actions
taken by the Administrative Agent or any of the Banks to enforce this Agreement
or any of the other Loan Documents (except enforcement action on which the
Borrower prevails)) or other proceeding (including, without limitation, any
threatened investigation or proceeding) relating to the foregoing, and the
Borrower shall reimburse the Administrative Agent and each Bank, and each
Affiliate thereof and their respective directors, officers, employees and
agents, upon demand for any reasonable expenses (including, without limitation,
legal fees) incurred in connection with any such investigation or proceeding;
but excluding any such losses, liabilities,
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claims, damages or expenses incurred by reason of the gross negligence or
willful misconduct of the Person to be indemnified.
SECTION 9.04 Setoffs; Sharing of Set-Offs. Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to the Note held by it which is greater than the proportion
received by any other Bank in respect of the aggregate amount of all principal
and interest due with respect to the Note held by such other Bank, the Bank
receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks owing to such other Banks,
and/or such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Notes held by the Banks
owing to such other Banks shall be shared by the Banks pro rata; provided that
(i) nothing in this Section shall impair the right of any Bank to exercise any
right of set-off or counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness of the Borrower other than its
indebtedness under the Notes, and (ii) if all or any portion of such payment
received by the purchasing Bank is thereafter recovered from such purchasing
Bank, such purchase from each other Bank shall be rescinded and such other Bank
shall repay to the purchasing Bank the purchase price of such participation to
the extent of such recovery together with an amount equal to such other Bank's
ratable share (according to the proportion of (x) the amount of such other
Bank's required repayment to (y) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower
agrees, to the fullest extent it may effectively do so under applicable law,
that any holder of a participation in a Note, whether or not acquired pursuant
to the foregoing arrangements, may exercise rights of set-off or counterclaim
and other rights with respect to such participation as fully as if such holder
of a participation were a direct creditor of the Borrower in the amount of such
participation.
SECTION 9.05 Amendments and Waivers.
(a) Any provision of this Agreement, the Notes or any other Loan Documents
may be amended or waived if, but only if, such amendment or waiver is in writing
and is signed by the Borrower and the Required Banks (and, if the rights or
duties of the Administrative Agent are affected thereby, by the Administrative
Agent); provided that no such amendment or waiver shall, unless signed by all
the Banks, (i) change the Commitment of any Bank or subject any Bank to any
additional obligation, (ii) change the principal of or reduce the rate of
interest on any Loan or reduce any fees hereunder, (iii) extend the date fixed
for any payment of principal of or interest on any Loan or any fees hereunder,
(iv) reduce the amount of principal, interest or fees due on any date fixed for
the payment thereof, (v) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the percentage of Banks,
which shall be required for the Banks or any of them to take any action under
this Section or any other provision of this Agreement, (vi) change the manner of
application of any payments made under this Agreement or the Notes, (vii)
release or substitute all or any substantial part of the collateral (if any)
held as security for the Loans, or (viii) release any guaranty given to support
payment of the Loans.
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(b) The Borrower will not solicit, request or negotiate for or with respect
to any proposed waiver or amendment of any of the provisions of this Agreement
unless each Bank shall be informed thereof by the Borrower and shall be afforded
an opportunity of considering the same and shall be supplied by the Borrower
with sufficient information to enable it to make an informed decision with
respect thereto. Executed or true and correct copies of any waiver or consent
effected pursuant to the provisions of this Agreement shall be delivered by the
Borrower to each Bank forthwith following the date on which the same shall have
been executed and delivered by the requisite percentage of Banks. The Borrower
will not, directly or indirectly, pay or cause to be paid any remuneration,
whether by way of supplemental or additional interest, fee or otherwise, to any
Bank (in its capacity as such) as consideration for or as an inducement to the
entering into by such Bank of any waiver or amendment of any of the terms and
provisions of this Agreement unless such remuneration is concurrently paid, on
the same terms, ratably to all Banks approving such waiver or amendment.
SECTION 9.06 Margin Stock Collateral. Each of the Banks represents to the
Administrative Agent and each of the other Banks that it in good faith is not,
directly or indirectly (by negative pledge or otherwise), relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION 9.07 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided that the Borrower may not assign or otherwise transfer any of its
rights under this Agreement.
(b) Any Bank may at any time sell to one or more Persons (each a
"Participant") participating interests in any Loan owing to such Bank, any Note
held by such Bank, any Commitment hereunder or any other interest of such Bank
hereunder. In the event of any such sale by a Bank of a participating interest
to a Participant, such Bank's obligations under this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Note for all purposes
under this Agreement, and the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement. In no event shall a Bank
that sells a participation be obligated to the Participant to take or refrain
from taking any action hereunder except that such Bank may agree that it will
not (except as provided below), without the consent of the Participant, agree to
(i) the change of any date fixed for the payment of principal of or interest on
the related Loan or Loans, (ii) the change of the amount of any principal,
interest or fees due on any date fixed for the payment thereof with respect to
the related Loan or Loans, (iii) the change of the principal of the related Loan
or Loans, (iv) any change in the rate at which either interest is payable
thereon or (if the Participant is entitled to any part thereof) commitment fee
is payable hereunder from the rate at which the Participant is entitled to
receive interest or commitment fee (as the case may be) in respect of such
participation, (v) the release or substitution of all or any substantial part of
the collateral (if any) held as security for the Loans, or (vi) the release of
any guaranty given to support payment of the Loans. Each Bank selling a
participating interest in any Loan, Note, Commitment or other interest under
this Agreement shall, within 10 Domestic Business Days of such sale, provide the
Borrower and the Administrative Agent with written notification
-50-
stating that such sale has occurred and identifying the Participant and the
interest purchased by such Participant. The Borrower agrees that each
Participant shall be entitled to the benefits of Article VIII with respect to
its participation in any Loan outstanding from time to time.
(c) Any Bank may at any time assign to one or more banks or financial
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement, the Note and the other Loan
Documents, and such Assignee shall assume all such rights and obligations,
pursuant to an Assignment and Acceptance in the form attached hereto as Exhibit
G, executed by such Assignee, such transferor Bank and the Administrative Agent
(and, in the case of: (i) an Assignee that is not then a Bank or an Affiliate of
a Bank; and (ii) an assignment not made during the existence of a Default, by
the Borrower); provided that (i) the amount of the Commitment or Loans, as the
case may be, of the assigning Bank being assigned pursuant to such assignment
(determined as of the effective date of the assignment) shall be equal to
$10,000,000 (or any larger multiple of $1,000,000) unless such assignment is to
an Affiliate of the assigning Bank; (ii) no interest may be sold by a Bank
pursuant to this paragraph (c) to any Assignee that is not then a Bank or an
Affiliate of a Bank without the consent of the Borrower, which consent shall not
be unreasonably withheld, provided that the Borrower's consent shall not be
necessary with respect to any assignment made during the existence of a Default;
and (iii) no interest may be sold by a Bank pursuant to this paragraph (c) to
any Assignee that is not then a Bank or an Affiliate of a Bank, without the
consent of the Administrative Agent, which consent shall not be unreasonably
withheld, provided, that although the Administrative Agent's consent may not be
necessary with respect to an Assignee that is then a Bank or an Affiliate of a
Bank, no such assignment shall be effective until the conditions set forth in
the following sentence are satisfied. Upon (A) execution of the Assignment and
Acceptance by such transferor Bank, such Assignee, the Administrative Agent and
(if applicable) the Borrower, (B) delivery of an executed copy of the Assignment
and Acceptance to the Borrower and the Administrative Agent, (C) payment by such
Assignee to such transferor Bank of an amount equal to the purchase price agreed
between such transferor Bank and such Assignee, and (D) payment by the assigning
Bank of a processing and recordation fee of $3,500 to the Administrative Agent,
such Assignee shall for all purposes be a Bank party to this Agreement and shall
have all the rights and obligations of a Bank under this Agreement to the same
extent as if it were an original party hereto with a Commitment or outstanding
Loans, as the case may be, as set forth in such instrument of assumption, and
the transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by the Borrower, the
Banks or the Administrative Agent shall be required. Upon the consummation of
any transfer to an Assignee pursuant to this paragraph (c), the transferor Bank,
the Administrative Agent and the Borrower shall make appropriate arrangements so
that, if required, a new Note is issued to each of such Assignee and such
transferor Bank.
(d) Subject to the provisions of Section 9.08, the Borrower authorizes each
Bank to disclose to any Participant, Assignee or other transferee (each a
"Transferee") and any prospective Transferee any and all financial and other
information in such Bank's possession concerning the Borrower which has been
delivered to such Bank by the Borrower pursuant to this Agreement or which has
been delivered to such Bank by the Borrower in connection with such Bank's
credit evaluation prior to entering into this Agreement.
-51-
(e) No Transferee shall be entitled to receive any greater payment under
Section 8.03 than the transferor Bank would have been entitled to receive with
respect to the rights transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the provisions of Section 8.02
or 8.03 requiring such Bank to designate a different Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
(f) Anything in this Section 9.07 to the contrary notwithstanding, any Bank
may assign and pledge all or any portion of the Loan and/or obligations owing to
it to any Federal Reserve Bank or the United States Treasury as collateral
security pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and Operating Circular issued by such Federal Reserve Bank,
provided that any payment in respect of such assigned Loan and/or obligations
made by the Borrower to the assigning and/or pledging Bank in accordance with
the terms of this Agreement shall satisfy the Borrower's obligations hereunder
in respect of such assigned Loan and/or obligations to the extent of such
payment. No such assignment shall release the assigning and/or pledging Bank
from its obligations hereunder.
SECTION 9.08 Confidentiality. Each Bank agrees to exercise its best efforts
to keep any information delivered or made available by the Borrower to it,
confidential from anyone other than persons employed or retained by such Bank
who are or are expected to become engaged in evaluating, approving, structuring
or administering the Loans; provided, however, that nothing herein shall prevent
any Bank from disclosing such information (i) to any other Bank, (ii) upon the
order of any court or administrative agency, (iii) upon the request or demand of
any regulatory agency or authority having jurisdiction over such Bank, (iv)
which has been publicly disclosed, (v) to the extent reasonably required in
connection with any litigation to which the Administrative Agent, any Bank or
their respective Affiliates may be a party, (vi) to the extent reasonably
required in connection with the exercise of any remedy hereunder, (vii) to such
Bank's legal counsel and independent auditors and (viii) to any actual or
proposed Participant, Assignee or other Transferee of all or part of its rights
hereunder which has agreed in writing to be bound by the provisions of this
Section 9.08.
SECTION 9.09 Representation by Banks. Each Bank hereby represents that it
is a commercial lender or financial institution which makes loans in the
ordinary course of its business and that it will make its Loan hereunder for its
own account in the ordinary course of such business; provided, however, that,
subject to Section 9.07, the disposition of the Note held by that Bank shall at
all times be within its exclusive control.
SECTION 9.10 Obligations Several. The obligations of each Bank hereunder
are several, and no Bank shall be responsible for the obligations or commitment
of any other Bank hereunder. Nothing contained in this Agreement and no action
taken by the Banks pursuant hereto shall be deemed to constitute the Banks to be
a partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Bank shall be a separate and
independent debt, and each Bank shall be entitled to protect and enforce its
rights arising out of this Agreement or any other Loan Document and it shall not
be necessary for any other Bank to be joined as an additional party in any
proceeding for such purpose.
-52-
SECTION 9.11 Survival of Certain Obligations. Sections 8.03(a), 8.03(b),
8.05 and 9.03, and the obligations of the Borrower thereunder, shall survive,
and shall continue to be enforceable notwithstanding, the termination of this
Agreement and the Commitments and the payment in full of the principal of and
interest on all Loans.
SECTION 9.12 Georgia Law. This Agreement and each Note shall be construed
in accordance with and governed by the law of the State of Georgia.
SECTION 9.13 Severability. In case any one or more of the provisions
contained in this Agreement, the Notes or any of the other Loan Documents should
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby and shall be enforced to the
greatest extent permitted by law.
SECTION 9.14 Interest. In no event shall the amount of interest due or
payable hereunder or under the Notes exceed the maximum rate of interest allowed
by applicable law, and in the event any such payment is inadvertently made to
any Bank by the Borrower or inadvertently received by any Bank, then such excess
sum shall be credited as a payment of principal, unless the Borrower shall
notify such Bank in writing that it elects to have such excess sum returned
forthwith. It is the express intent hereof that the Borrower not pay and the
Banks not receive, directly or indirectly in any manner whatsoever, interest in
excess of that which may legally be paid by the Borrower under applicable law.
SECTION 9.15 Interpretation. No provision of this Agreement or any of the
other Loan Documents shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party having or being deemed to have structured or
dictated such provision.
SECTION 9.16 Consent to Jurisdiction. The Borrower (a) submits to personal
jurisdiction in the State of Georgia, the courts thereof and the United States
District Courts sitting therein, for the enforcement of this Agreement, the
Notes and the other Loan Documents, (b) waives any and all personal rights under
the law of any jurisdiction to object on any basis (including, without
limitation, inconvenience of forum) to jurisdiction or venue within the State of
Georgia for the purpose of litigation to enforce this Agreement, the Notes or
the other Loan Documents, and (c) agrees that service of process may be made
upon it in the manner prescribed in Section 9.01 for the giving of notice to the
Borrower. Nothing herein contained, however, shall prevent the Administrative
Agent from bringing any action or exercising any rights against any security and
against the Borrower personally, and against any assets of the Borrower, within
any other state or jurisdiction.
SECTION 9.17 Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
-53-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, under seal, by their respective authorized officers as of the day
and year first above written.
SCANA CORPORATION
By:_______________________________
Title:_________________________
SCANA Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇,
Chief Financial Officer
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
-54-
COMMITMENT WACHOVIA BANK, N.A., as Administrative
Agent and as a Bank
$42,000,000 By:_______________________________
Title:_________________________
Lending Office
--------------
Wachovia Bank, N.A.
Syndication Services
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, N.E., 27th Floor,
Mail Code: ▇▇-▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Supervisor, Syndicated Loan Services
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Wachovia Bank, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Vice President
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
-55-
COMMITMENT FIRST UNION NATIONAL BANK, as
Syndication Agent and as a Bank
$42,000,000 By:_______________________________
Title:_________________________
Lending Office
--------------
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
-56-
COMMITMENT THE BANK OF NEW YORK, as
Documentation Agent and as a Bank
$42,000,000 By:_______________________________
Title:_________________________
Lending Office
--------------
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, N.A., as Co-Agent and
as a Bank
$32,500,000 By:_______________________________
Title:_________________________
Lending Office
--------------
Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, as Co-Agent
and as a Bank
$32,500,000 By:_______________________________
Title:_________________________
By:
Title:
Lending ▇▇▇▇▇▇
--------------
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
SunTrust Bank Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
-59-
COMMITMENT BANK ONE, NA
$22,500,000 By:_______________________________
Title:_________________________
Lending Office
Bank One, NA
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ # ▇▇ ▇-▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
$22,500,000 By:______________________________
Title:________________________
By:
Title:
Lending Office
--------------
Paribas
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇ ▇▇▇▇
-61-
COMMITMENT ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ BRANCH
$16,000,000 By:______________________________
Title:________________________
By:______________________________
Title:________________________
Lending Office
DG Bank AG, Atlanta Agency
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Assistant Vice President
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
DG Bank AG, New York Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇
Assistant Vice President
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
-62-
COMMITMENT THE INDUSTRIAL BANK OF JAPAN,
LIMITED
$16,000,000 By:______________________________
Title:________________________
Lending Office
The Industrial Bank of Japan, Limited
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇ (ext. 105)
With a copy to:
The Industrial Bank of Japan, Limited
New York Branch
1251 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Credit Administration Department
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ AGENCY
$16,000,000 By:______________________________
Title:________________________
Lending Office
Banque Nationale de Paris, Houston Agency
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Banque Nationale de Paris
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy number: (972) 788- 9140
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
-64-
COMMITMENT THE SANWA BANK, LIMITED (acting
through its New York Branch)
$16,000,000 By:______________________________
Title:________________________
Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇▇ Wu
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone number: (▇▇▇) ▇▇▇-▇▇▇▇
TOTAL COMMITMENTS:
$300,000,000
-65-
SCHEDULE 4.05
Description of Litigation
There is pending in the Court of Common Pleas of Hampton County, South
Carolina, a matter styled Heritage Propane V. SCANA Corporation. This matter
arises out of the sale to another party by the Borrower of assets primarily
related to Borrower's and its subsidiary propane operations.
Page 1 of 1
SCHEDULE 4.08
Existing Subsidiaries
Name of Subsidiary Jurisdiction of Incorporation
South Carolina Electric &Gas Company South Carolina
SCE&G Trust I (indirect subsidiary) Delaware
South Carolina Generating Company, Inc. South Carolina
South Carolina Fuel Company, Inc. South Carolina
SCANA Propane Gas, Inc. * South Carolina
USA Cylinder Exchange, Inc. * (indirect subsidiary) South Carolina
SCANA Propane Supply, Inc. * (indirect subsidiary) South Carolina
SCANA Resources, Inc. South Carolina
Instel, Inc. * (indirect subsidiary) South Carolina
SCANA Communications, Inc. South Carolina
SCANA Communications Holdings, Inc. Delaware
SCANA Energy Marketing, Inc. South Carolina
ServiceCare, Inc. South Carolina
Primesouth, Inc. South Carolina
Palmark, Inc. (indirect subsidiary) South Carolina
South Carolina Pipeline Corporation South Carolina
C&T Pipeline, LLC * (indirect subsidiary) South Carolina
SCANA Propane Storage, Inc. * South Carolina
SCANA Petroleum Resources, Inc. * South Carolina
SPR Gas Services, Inc. * South Carolina
SCANA Development Corporation * South Carolina
SCANA Energy Trading, LLC South Carolina
New Sub I, Inc. South Carolina
New Sub II, Inc. South Carolina
* in process of liquidation
Page 1 of 1
EXHIBIT A
NOTE
$____________ Atlanta, Georgia
December 1, 1999
For value received, SCANA CORPORATION, a South Carolina corporation (the
"Borrower"), promises to pay to the order of
(the "Bank"), for the account of its Lending Office, the principal sum of
________________ ______________________________ and No/100 Dollars
($____________), or such lesser amount as shall equal the unpaid principal
amount of the Loan made by the Bank to the Borrower pursuant to the Credit
Agreement referred to below, on the dates and in the amounts provided in the
Credit Agreement. The Borrower promises to pay interest on the unpaid principal
amount of this Note on the dates and at the rate or rates provided for in the
Credit Agreement. Interest on any overdue principal of and, to the extent
permitted by law, overdue interest on the principal amount hereof shall bear
interest at the Default Rate, as provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States in Federal or other immediately available funds at the office of Wachovia
Bank, N.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other
address as may be specified from time to time pursuant to the Credit Agreement.
The Loan made by the Bank, the interest rates from time to time applicable
thereto and all repayments of the principal thereof shall be recorded by the
Bank and, prior to any transfer hereof, endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make, or any error of the
Bank in making, any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement dated as
of December 1, 1999 among the Borrower, the banks listed on the signature pages
thereof and their successors and assigns and Wachovia Bank, N.A., as
Administrative Agent (as the same may be amended or modified from time to time,
the "Credit Agreement"). Terms defined in the Credit Agreement are used herein
with the same meanings. Reference is made to the Credit Agreement for provisions
for the prepayment and the repayment hereof and the acceleration of the maturity
hereof.
The Borrower hereby waives presentment, demand, protest, notice of demand,
protest and nonpayment and any other notice required by law relative hereto,
except to the extent as otherwise may be expressly provided for in the Credit
Agreement.
The Borrower agrees, in the event that this Note or any portion hereof is
collected by law or through an attorney at law, to pay all reasonable costs of
collection, including, without limitation, reasonable attorneys' fees.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed under seal, by its duly authorized officer as of the day and year first
above written.
SCANA CORPORATION
By:_____________________________
Title:_______________________
A - 2
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
Date Type of Interest Amount of Amount of Notation
----
Loan* Rate Loan Principal Made By
---- ---- ---- -------
Repaid
------------------- ------------------- ------------------- ------------------- ------------------- -------------------
------------------- ------------------- ------------------- ------------------- ------------------- -------------------
------------------- ------------------- ------------------- ------------------- ------------------- -------------------
------------------- ------------------- ------------------- ------------------- ------------------- -------------------
------------------- ------------------- ------------------- ------------------- ------------------- -------------------
------------------- ------------------- ------------------- ------------------- ------------------- -------------------
------------------- ------------------- ------------------- ------------------- ------------------- -------------------
------------------- ------------------- ------------------- ------------------- ------------------- -------------------
------------------- ------------------- ------------------- ------------------- ------------------- -------------------
------------------- ------------------- ------------------- ------------------- ------------------- -------------------
------------------- ------------------- ------------------- ------------------- ------------------- -------------------
------------------- ------------------- ------------------- ------------------- ------------------- -------------------
------------------- ------------------- ------------------- ------------------- ------------------- -------------------
------------------- ------------------- ------------------- ------------------- ------------------- -------------------
------------------- ------------------- ------------------- ------------------- ------------------- -------------------
* I.e., a Base Rate or Euro-Dollar Loan.
A - 3
EXHIBIT B
OPINION OF
COUNSEL FOR THE BORROWER
[Dated as provided in Section 3.01 of the Credit Agreement]
To the Banks and the Administrative Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We have acted as counsel for SCANA Corporation (the "Borrower") in
connection with the Credit Agreement (the "Credit Agreement") dated as of
December 1, 1999 among the Borrower, the banks listed on the signature pages
thereof and Wachovia Bank, N.A., as Administrative Agent. Terms defined in the
Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion. We have assumed for purposes of our opinions set forth below that the
execution and delivery of the Credit Agreement by each Bank and by the
Administrative Agent have been duly authorized by each Bank and by the
Administrative Agent. As to questions of fact relating to the Borrower material
to such opinions, we have relied upon representations of appropriate officers of
the Borrower.
Upon the basis of the foregoing, we are of the opinion that:
1. The Borrower is a corporation duly incorporated, validly existing and in
good standing under the laws of South Carolina and has all corporate powers
required to carry on its business as now conducted.
2. The execution, delivery and performance by the Borrower of the Credit
Agreement and the Notes (i) are within the Borrower's corporate powers, (ii)
have been duly authorized by all necessary corporate action, (iii) require no
action by or in respect of, or filing with, any governmental body, agency or
official, (iv) do not contravene, or constitute a default under, any provision
of applicable law or regulation or of the certificate of incorporation or
by-laws of the Borrower or of any agreement, judgment, injunction, order, decree
or other instrument which to our knowledge is binding upon the Borrower and (v)
to our knowledge, except as provided in the Credit Agreement, do not result in
the creation or imposition of any Lien on any asset of the Borrower or any of
its Subsidiaries.
3. The Credit Agreement constitutes a valid and binding agreement of the
Borrower, enforceable against the Borrower in accordance with its terms, and the
Notes constitute valid and binding obligations of the Borrower, enforceable in
accordance with their respective terms, except as such enforceability may be
limited by: (i) bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity.
4. To our knowledge, there is no action, suit or proceeding pending, or
threatened, against or affecting the Borrower or any of its Subsidiaries before
any court or arbitrator or any governmental body, agency or official in which
there is a reasonable possibility of an adverse decision which could materially
adversely affect the business, consolidated financial position or consolidated
results of operations of the Borrower and its Consolidated Subsidiaries,
considered as a whole, or which in any manner questions the validity or
enforceability of the Credit Agreement or any Note.
5. Each of the Borrower's Subsidiaries is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
6. Neither the Borrower nor any of its Subsidiaries is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
7. The Borrower is a holding company within the meaning of the Public
Utility Holding Company Act of 1935, as amended, and the rules and regulations
thereunder (collectively, "PUHCA"), and is exempt from registration under
Section 3(a)(1) of PUHCA.
We are qualified to practice in the State of South Carolina and do not
purport to be experts on any laws other than the laws of the United States and
the State of South Carolina, and this opinion is rendered only with respect to
such laws. We have made no independent investigation of the laws of any other
jurisdiction.
We express no opinion as to the laws of any jurisdiction wherein any Bank
may be located which limits rates of interest which may be charged or collected
by such Bank other than in paragraph 3 with respect to the State of South
Carolina.
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you or any Assignee, Participant
or other Transferee under the Credit Agreement, without our prior written
consent.
Very truly yours,
EXHIBIT C
OPINION OF
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
[Date as provided in Section 3.01 of the Credit Agreement]
To the Banks and the Administrative Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Loan Syndications
Dear Sirs:
We have participated in the preparation of the Credit Agreement (the
"Credit Agreement") dated as of December 1, 1999 among SCANA Corporation, a
South Carolina corporation (the "Borrower"), the banks listed on the signature
pages thereof (the "Banks") and Wachovia Bank, N.A., as Administrative Agent
(the "Administrative Agent"), and have acted as special counsel for the
Administrative Agent for the purpose of rendering this opinion pursuant to
Section 3.01(d) of the Credit Agreement. Terms defined in the Credit Agreement
are used herein as therein defined.
This opinion letter is limited by, and is in accordance with, the January
1, 1992 edition of the Interpretive Standards applicable to Legal Opinions to
Third Parties in Corporate Transactions adopted by the Legal Opinion Committee
of the Corporate and Banking Law Section of the State Bar of Georgia which
Interpretive Standards are incorporated herein by this reference.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, and assuming the due authorization,
execution and delivery of the Credit Agreement and each of the Notes by or on
behalf of the Borrower, we are of the opinion that the Credit Agreement
constitutes a valid and binding agreement of the Borrower and each Note
constitutes valid and binding obligations of the Borrower, in each case
enforceable in accordance with its terms except as: (i) the enforceability
thereof may be affected by bankruptcy, insolvency, reorganization, fraudulent
conveyance, voidable preference, moratorium or similar laws applicable to
creditors' rights or the collection of debtors' obligations generally; (ii)
rights of acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability; and (iii) the enforceability
of certain of the remedial, waiver and other provisions of the Credit Agreement
and the Notes may be further limited by the laws of the State of Georgia;
provided,
however, such additional laws do not, in our opinion, substantially interfere
with the practical realization of the benefits expressed in the Credit Agreement
and the Notes, except for the economic consequences of any procedural delay
which may result from such laws.
In giving the foregoing opinion, we express no opinion as to the effect (if
any) of any law of any jurisdiction except the State of Georgia. We express no
opinion as to the effect of the compliance or noncompliance of the
Administrative Agent or any of the Banks with any state or federal laws or
regulations applicable to the Administrative Agent or any of the Banks by reason
of the legal or regulatory status or the nature of the business of the
Administrative Agent or any of the Banks.
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you and any Assignee,
Participant or other Transferee under the Credit Agreement without our prior
written consent.
Very truly yours,
________________________________
By:_____________________________
EXHIBIT D
CLOSING CERTIFICATE
OF
SCANA CORPORATION
Reference is made to the Credit Agreement (the "Credit Agreement") dated as
of December 1, 1999, among SCANA Corporation (the "Borrower"), Wachovia Bank,
N.A., as Administrative Agent and as a Bank, and certain other Banks listed on
the signature pages thereof. Capitalized terms used herein have the meanings
ascribed thereto in the Credit Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement, ___________________,
the duly authorized ____________________ of the Borrower, hereby certifies to
the Administrative Agent and the Banks that: (i) no Default has occurred and is
continuing on the date hereof; and (ii) the representations and warranties of
the Borrower contained in Article IV of the Credit Agreement are true in all
material respects on and as of the date hereof.
Certified on this ______ day of December, 1999.
SCANA CORPORATION
Name:___________________________
Title:__________________________
EXHIBIT E
SCANA CORPORATION
SECRETARY'S CERTIFICATE
The undersigned, _____________, _______ Secretary of SCANA Corporation, a
South Carolina corporation (the "Borrower"), hereby certifies that he has been
duly elected, qualified and is acting in such capacity and that, as such, he is
familiar with the facts herein certified and is duly authorized to certify the
same, and hereby further certifies, in connection with the Credit Agreement
dated as of December 1, 1999 among the Borrower, Wachovia Bank, N.A., as
Administrative Agent and as a Bank, and certain other Banks listed on the
signature pages thereof that:
1. Attached hereto as Exhibit A is a complete and correct copy of the
Certificate of Incorporation of the Borrower as in full force and effect on the
date hereof as certified by the Secretary of State of the State of South
Carolina, the Borrower's state of incorporation.
2. Attached hereto as Exhibit B is a complete and correct copy of the
Bylaws of the Borrower as in full force and effect on the date hereof.
3. Attached hereto as Exhibit C is a complete and correct copy of (a) the
resolutions duly adopted by the Board of Directors of the Borrower on August 18,
1999, and (b) a Written Consent of the SCANA Ad Hoc Management Debt Committee
dated December 14, 1999, authorizing the execution and delivery of, the Credit
Agreement, the Notes (as such term is defined in the Credit Agreement) and the
other Loan Documents (as such term is defined in the Credit Agreement) to which
the Borrower is a party. Such resolutions have not been repealed or amended and
are in full force and effect, and no other resolutions or consents have been
adopted by the Board of Directors of the Borrower in connection therewith.
4. ____________, who as ________________________ of the Borrower signed the
Credit Agreement, the Notes and the other Loan Documents to which the Borrower
is a party, was duly elected, qualified and acting as such at the time he signed
the Credit Agreement, the Notes and other Loan Documents to which the Borrower
is a party, and his signature appearing on the Credit Agreement, the Notes and
the other Loan Documents to which the Borrower is a party is his genuine
signature.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of this
______ day of December, 1999.
_________________________________
Name:
Title:
EXHIBIT F
SCANA CORPORATION
COMPLIANCE CERTIFICATE
Reference is made to that certain Credit Agreement dated as of December 1,
1999 (the "Credit Agreement"), among SCANA Corporation, a South Carolina
Corporation (the "Borrower"), Wachovia Bank, N.A., as Administrative Agent and
as a Bank, and certain other Banks listed on the signature pages thereof.
Capitalized terms used in this certificate and the Schedule attached hereto,
unless otherwise defined herein, have the meanings assigned to them in the
Credit Agreement.
The undersigned does hereby certify to the Administrative Agent as follows:
1. He is the duly elected and serving chief financial officer of the Borrower.
2. He has reviewed the terms of the Credit Agreement and the other Loan
Documents and has made, or has caused to be made under his supervision, a
review of the transactions and conditions of the Borrower and its
Consolidated Subsidiaries through the date on which this certificate is
delivered to the Administrative Agent.
3. The computations relating to the Borrower's financial conditions set forth
on Schedule I attached hereto were true and correct as of ________________
__, ____ (such date being the last day of the Fiscal Quarter most recently
ended.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the ___
day of _________, ____.
_________________________________
Name:
Title:
EXHIBIT G
ASSIGNMENT AND ACCEPTANCE
Dated ________________ __, ____
Reference is made to the Credit Agreement dated as of December 1, 1999
(together with all amendments and modifications thereto, the "Credit Agreement")
among SCANA Corporation, a South Carolina corporation (the "Borrower"), the
Banks (as defined in the Credit Agreement) and Wachovia Bank, N.A., as
Administrative Agent (the "Administrative Agent"). Terms defined in the Credit
Agreement are used herein with the same meaning.
_____________________________________________________ (the "Assignor") and
_____________________________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, without recourse
to the Assignor, and the Assignee hereby purchases and assumes from the
Assignor, a ______% interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the Effective Date (as defined
below) (including, without limitation, a ______% interest (which on the
Effective Date hereof is $_______________) in the Assignor's Commitment and a
______% interest (which on the Effective Date hereof is $_______________) in the
Loan owing to the Assignor and a ______% interest in the Note held by the
Assignor (which on the Effective Date hereof is $__________________).
2. The Assignor (i) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement, any other instrument or
document furnished pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, any
other Loan Document or any other instrument or document furnished pursuant
thereto, other than that it is the legal and beneficial owner of the interest
being assigned by it hereunder, that such interest is free and clear of any
adverse claim and that as of the date hereof its Commitment (without giving
effect to assignments thereof which have not yet become effective) is
$_________________ and the aggregate outstanding principal amount of Loan owing
to it (without giving effect to assignments thereof which have not yet become
effective) is $_________________; (ii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under the Credit Agreement, any other Loan Document or any other
instrument or document furnished pursuant thereto; and (iii) attaches the Note
referred to in paragraph 1 above and requests that the Administrative Agent
exchange such Note as follows: [a new Note dated _______________, ____ in the
principal amount of _________________ payable to the order of the Assignee] [new
Notes as follows: a Note dated _________________, ____ in the principal amount
of $_______________ payable to the order of the Assignor and a Note dated
______________, ____ in the principal amount of $______________ payable to the
order of the Assignee].
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.04(a) thereof (or any more recent financial statements of the Borrower
delivered pursuant to Section 5.01(a) or (b) thereof) and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Administrative Agent, the Assignor
or any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iii) confirms that it is a bank
or financial institution; (iv) appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to exercise such powers under the
Credit Agreement as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto; (v)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Bank; (vi) specifies as its Lending Office (and address for
notices) the office set forth beneath its name on the signature pages hereof,
(vii) represents and warrants that the execution, delivery and performance of
this Assignment and Acceptance are within its corporate powers and have been
duly authorized by all necessary corporate action[, and (viii) attaches the
forms prescribed by the Internal Revenue Service of the United States certifying
as to the Assignee's status for purposes of determining exemption from United
States withholding taxes with respect to all payments to be made to the Assignee
under the Credit Agreement and the Note or such other documents as are necessary
to indicate that all such payments are subject to such taxes at a rate reduced
by an applicable tax treaty].*
4. The Effective Date for this Assignment and Acceptance shall be
_______________ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Administrative Agent for
execution and acceptance by the Administrative Agent [and to the Borrower for
execution by the Borrower]**.
5. Upon such execution and acceptance by the Administrative Agent [and
execution by the Borrower]**, from and after the Effective Date, (i) the
Assignee shall be a party to the Credit Agreement and, to the extent rights and
obligations have been transferred to it by this Assignment and Acceptance, have
the rights and obligations of a Bank thereunder and (ii) the Assignor shall, to
the extent its rights and obligations have been transferred to the Assignee by
this Assignment and Acceptance, relinquish its rights (other than under Section
8.03 and Section 9.03 of the Credit Agreement) and be released from its
obligations under the Credit Agreement.
6. Upon such execution and acceptance by the Administrative Agent [and
execution by the Borrower]**, from and after the Effective Date, the
Administrative Agent shall make all payments in respect of the interest assigned
hereby to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments for periods prior to such acceptance by the
Administrative Agent directly between themselves.
G:\DATA\▇▇▇▇▇\EE18\#444372.wpd
2/8/00 11:03 AM
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By:_________________________________________
Title:
[NAME OF ASSIGNEE]
By:__________________________________________
Title:
Lending Office:
[Address]
WACHOVIA BANK, N.A., as Administrative Agent
By:__________________________________________
Title:
SCANA CORPORATION*
By:__________________________________________
Title:
EXHIBIT H
INTEREST RATE ELECTION NOTICE
__________, ____
Wachovia Bank, N. A., as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager - Loan Syndications
Re: Credit Agreement (as amended and modified from time to time, the
"Credit Agreement") dated as of December 1, 1999 by and among SCANA
Corporation, the Banks from time to time parties thereto, and Wachovia
Bank, N.A., as Administrative Agent and a Bank.
Gentlemen:
Unless otherwise defined herein, terms defined in the Credit Agreement are
used herein as therein defined.
This notice constitutes an Interest Rate Election Notice delivered pursuant
to Section 2.02(a) of the Credit Agreement.
Effective on ______________ [specify date], we hereby elect to enter into a
______________________ [specify whether a continuation or conversion] of the
[Loan] [identify Loan by type (i.e., whether a Base Rate Loan or a Euro-Dollar
Loan) and, in the case of a continuation or conversion of an existing
Euro-Dollar Loan, the last day of the then current Interest Period therefor]
currently outstanding. Interest on the _______________ [specify continued or
converted] [Loan] shall be determined by reference to the ______________
[specify either "Euro-Dollar Rate" or "Adjusted Base Rate"] and shall be for an
Interest Period of _________________ months [specify the Interest Period for
Euro-Dollar Loans, which may be either 1, 2, 3 or 6 months].
SCANA CORPORATION
By:______________________________
Name:____________________________
Title:___________________________
EXHIBIT I
NOTICE OF BORROWING
__________, ____
Wachovia Bank, N.A., as Administrative Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Loan Syndications
Re: Credit Agreement (as amended and modified from time to time, the
"Credit Agreement") dated as of December 1, 1999 by and among SCANA
Corporation, the Banks from time to time parties thereto, and Wachovia
Bank, N.A., as Administrative Agent and a Bank.
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein shall have
the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to Section 3.02(a) of
the Credit Agreement.
The Borrower hereby requests a borrowing in the aggregate principal amount
of $___________ to be made on ______ __, ____, (the "Term Loan Draw Date") and
for interest to accrue thereon at the rate established by the Credit Agreement
for [Euro-Dollar Loans] [Base Rate Loans]. The duration of the Interest Period
with respect thereto (if such Loans are to be Euro-Dollar Loans) shall be [1
month] [2 months] [3 months] [6 months].
Pursuant to subsections (b) and (c) of Section 3.02 of the Credit
Agreement, ___________________, the duly authorized ____________________ of the
Borrower, hereby certifies to the Administrative Agent and the Banks that: (i)
no Default has occurred and is continuing on the date hereof; and (ii) the
representations and warranties of the Borrower contained in Article IV of the
Credit Agreement are true on and as of the date hereof.
The Borrower has caused this Notice of Borrowing to be executed and
delivered by its duly authorized officer this ___ day of _________, ____.
SCANA CORPORATION
By:______________________________
Title: