EXHIBIT 4.9
REVOLVING
CREDIT AGREEMENT
among
ATMOS ENERGY CORPORATION
as Borrower,
THE LENDERS IDENTIFIED HEREIN,
AND
BANK OF AMERICA, N.A.,
as Administrative Agent,
BANK ONE, NA,
as Syndication Agent
and
SOCIETE GENERALE NEW YORK BRANCH,
as Documentation Agent
DATED AS OF AUGUST 3, 2000
BANC OF AMERICA SECURITIES LLC
as Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
-----------------
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS.................................1
1.1 Definitions......................................................1
1.2 Computation of Time Periods.....................................15
1.3 Accounting Terms................................................15
1.4 Time............................................................15
SECTION 2. LOANS...........................................................16
2.1 Revolving Loan Commitment.......................................16
2.2 Method of Borrowing for Revolving Loans.........................18
2.3 Funding of Revolving Loans......................................18
2.4 Continuations and Conversions...................................19
2.5 Minimum Amounts.................................................20
2.6 Reductions of Revolving Loan Commitment.........................20
2.7 Notes...........................................................20
SECTION 3. PAYMENTS........................................................21
3.1 Interest........................................................21
3.2 Prepayments.....................................................21
3.3 Payment in full at Maturity.....................................22
3.4 Fees............................................................22
3.5 Place and Manner of Payments....................................23
3.6 Pro Rata Treatment..............................................23
3.7 Computations of Interest and Fees...............................23
3.8 Sharing of Payments.............................................24
3.9 Evidence of Debt................................................25
SECTION 4. ADDITIONAL PROVISIONS REGARDING LOANS...........................26
4.1 Eurodollar Loan Provisions......................................26
4.2 Capital Adequacy................................................27
4.3 Compensation....................................................28
4.4 Taxes...........................................................28
SECTION 5. CONDITIONS PRECEDENT............................................30
5.1 Closing Conditions..............................................30
5.2 Conditions to Loans.............................................32
SECTION 6. REPRESENTATIONS AND WARRANTIES..................................33
6.1 Organization and Good Standing..................................33
6.2 Due Authorization...............................................33
6.3 No Conflicts....................................................33
6.4 Consents........................................................34
6.5 Enforceable Obligations.........................................34
6.6 Financial Condition.............................................34
6.7 No Material Change..............................................34
i
6.8 No Default......................................................35
6.9 Litigation......................................................35
6.10 Taxes...........................................................35
6.11 Compliance with Law.............................................35
6.12 Material Agreements.............................................35
6.13 ERISA...........................................................35
6.14 Use of Proceeds.................................................37
6.15 Government Regulation...........................................37
6.16 Disclosure......................................................37
6.17 Environmental Matters...........................................38
6.18 Insurance.......................................................38
6.19 Franchises, Licenses, Etc.......................................38
6.20 Secured Indebtedness............................................38
6.21 Subsidiaries....................................................38
SECTION 7. AFFIRMATIVE COVENANTS...........................................38
7.1 Information Covenants...........................................39
7.2 Debt to Capitalization Ratio....................................41
7.3 Preservation of Existence, Franchises and Assets................41
7.4 Books and Records...............................................41
7.5 Compliance with Law.............................................41
7.6 Payment of Taxes and Other Indebtedness.........................41
7.7 Insurance.......................................................42
7.8 Use of Proceeds.................................................42
7.9 Audits/Inspections..............................................42
SECTION 8. NEGATIVE COVENANTS..............................................42
8.1 Nature of Business..............................................43
8.2 Consolidation and Merger........................................43
8.3 Sale or Lease of Assets.........................................43
8.4 Arm's-Length Transactions.......................................43
8.5 Fiscal Year; Organizational Documents...........................43
8.6 Liens...........................................................43
SECTION 9. EVENTS OF DEFAULT...............................................45
9.1 Events of Default...............................................45
9.2 Acceleration; Remedies..........................................47
9.3 Allocation of Payments After Event of Default...................48
SECTION 10 AGENCY PROVISIONS...............................................49
10.1 Appointment.....................................................49
10.2 Delegation of Duties............................................49
10.3 Exculpatory Provisions..........................................49
10.4 Reliance on Communications......................................50
10.5 Notice of Default...............................................50
10.6 Non-Reliance on Administrative Agent and Other Lenders..........51
10.7 Indemnification.................................................51
ii
10.8 Administrative Agent in Its Individual Capacity.................52
10.9 Successor Agent.................................................52
SECTION 11. MISCELLANEOUS...................................................53
11.1 Notices.........................................................53
11.2 Right of Set-Off................................................53
11.3 Benefit of Agreement............................................53
11.4 No Waiver; Remedies Cumulative..................................56
11.5 Payment of Expenses, etc........................................56
11.6 Amendments, Waivers and Consents................................57
11.7 Counterparts/Telecopy...........................................58
11.8 Headings........................................................58
11.9 Defaulting Lender...............................................58
11.10 Survival of Indemnification and Representations and Warranties..58
11.11 Governing Law; Venue............................................58
11.12 Waiver of Jury Trial............................................59
11.13 Severability....................................................59
11.14 Further Assurances..............................................59
11.15 Entirety........................................................60
11.16 Binding Effect; Continuing Agreement............................60
SCHEDULES*
Schedule 1.1 Commitment Percentages
Schedule 6.20 Secured Indebtedness
Schedule 6.21 Subsidiaries
Schedule 11.1 Notices
EXHIBITS*
Exhibit 2.1(b) Form of Competitive Bid Request
Exhibit 2.2 Form of Notice of Borrowing
Exhibit 2.4 Form of Notice of Continuation/Conversion
Exhibit 2.7(a) Form of Revolving Loan Note
Exhibit 2.7(b) Form of Competitive Bid Loan Note
Exhibit 7.1(c) Form of Officer's Certificate
Exhibit 11.3(b) Form of Assignment Agreement
* Schedules and Exhibits are not filed herewith. Atmos Energy Corporation hereby
agrees to furnish supplemtally a copy of any schedule or Exhibit to the
Commission upon request.
iii
REVOLVING
CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "Credit Agreement"), dated as of
----------------
August 3, 2000, is entered into among ATMOS ENERGY CORPORATION, a Texas and
Virginia corporation (the "Borrower"), the Lenders (as defined herein) and BANK
OF AMERICA, N.A. as agent for the Lenders (in such capacity, the "Administrative
--------------
Agent").
-----
RECITALS
WHEREAS, the Borrower has requested that the Lenders provide a 364-day
revolving credit facility to the Borrower for the purposes set forth herein; and
WHEREAS, the Lenders have agreed to provide such 364-day revolving credit
facility on the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1.
DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions.
-----------
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular.
"Acquisition" means the acquisition to be consummated pursuant to the
-----------
terms of the Purchase and Sale Agreement.
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the
------------------------
Applicable Percentage for Eurodollar Loans.
"Administrative Agent" means Bank of America, N.A. and any successors
--------------------
and assigns in such capacity.
"Affiliate" means, with respect to any Person, any other Person
---------
directly or indirectly controlling, controlled by or under direct or
indirect common control with such Person. A Person shall be deemed to
control another Person if such Person possesses, directly or indirectly,
the power (a) to vote 10% or more of the securities having ordinary voting
power for the election of directors of such other Person or (b) to direct
or cause direction of the management and policies of such other Person,
whether through the ownership of voting
securities, by contract or otherwise.
"Agency Services Address" means ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
-----------------------
or such other address as the Administrative Agent may designate in writing.
"Applicable Percentage" means with respect to Eurodollar Loans and
---------------------
Unused Fees (subject to the terms set forth below), the appropriate
applicable percentage corresponding to the long term, senior, unsecured,
non-credit enhanced debt rating of the Borrower in effect from time to time
as described below:
Long Term, Senior, Unsecured, Non-Credit Applicable Percentage Applicable Percentage
Enhanced Debt Rating of Borrower for Eurodollar Loans for Unused Fees
-------------------------------- -------------------- ---------------
I. greater than or equal to A- from S&P .50% .10%
or
greater than or equal to A3 from ▇▇▇▇▇'▇
II. greater than or equal to BBB+ but less than A- from S&P .625% .125%
or
greater than or equal to Baa1 but less than A3 from ▇▇▇▇▇'▇
III. greater than or equal to BBB but less than BBB+ from S&P .75% .15%
or
greater than or equal to Baa2 but less than Baa1 from ▇▇▇▇▇'▇
IV. greater than or equal to BBB- but less than BBB from S&P 1.00% .20%
or
greater than or equal to Baa3 but less than Baa2 from ▇▇▇▇▇'▇
V. less than BBB- from S&P 1.375% .30%
or
less than Baa3 from ▇▇▇▇▇'▇
or
unrated by S&P and ▇▇▇▇▇'▇
Notwithstanding the above, (a) the Applicable Percentage on the
Effective Date shall be based on Pricing Level II set forth above and shall
remain at Pricing Level II until S&P or ▇▇▇▇▇'▇ has confirmed or changed
its rating based upon the consummation or proposed consummation of the
Acquisition or has otherwise changed its rating with respect to the
Borrower and (b) if at any time there is a split in ratings between S&P and
▇▇▇▇▇'▇ of one level, the applicable percentage shall be determined by the
higher of the two ratings and if at any time there is a split between S&P
and ▇▇▇▇▇'▇ of two or more levels, the applicable level shall be one level
below (i.e., one level higher pricing than) the higher of the S&P or
▇▇▇▇▇'▇ rating.
The Borrower shall notify the Administrative Agent in writing at the
Agency Services Address immediately upon any change in the long term,
senior, unsecured non-credit enhanced debt rating of the Borrower.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the United
---------------
States Code, as amended, modified, succeeded or replaced from time to time.
2
"Base Rate" means, for any day, the rate per annum (rounded upwards,
---------
if necessary, to the nearest whole multiple of 1/100 of 1%) equal to the
greater of (a) the Federal Funds Rate in effect on such day plus 1/2 of 1%
----
(.50%) or (b) the Prime Rate in effect on such day. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable after due inquiry to
ascertain the Federal Funds Rate for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations in
accordance with the terms hereof, the Base Rate shall be determined without
regard to clause (a) of the first sentence of this definition until the
circumstances giving rise to such inability no longer exist. Any change in
the Base Rate due to a change in the Prime Rate or the Federal Funds Rate
shall be effective on the effective date of such change in the Prime Rate
or the Federal Funds Rate, respectively.
"Base Rate Loan" means a Loan which bears interest based on the Base
--------------
Rate.
"Borrower" means Atmos Energy Corporation, a Texas and Virginia
--------
corporation.
"Borrower Obligations" means, without duplication, all of the
--------------------
obligations of the Borrower to the Lenders and the Administrative Agent,
whenever arising, under this Credit Agreement, the Notes or any of the
other Credit Documents.
"Business Day" means any day other than a Saturday, a Sunday, a legal
------------
holiday or a day on which banking institutions are authorized or required
by law or other governmental action to close in Dallas, Texas; provided
--------
that in the case of Eurodollar Loans, such day is also a day on which
dealings between banks are carried on in U.S. dollar deposits in the London
interbank market.
"Capital Stock" means (a) in the case of a corporation, all classes of
-------------
capital stock of such corporation, (b) in the case of a partnership,
partnership interests (whether general or limited), (c) in the case of a
limited liability company, membership interests and (d) any other interest
or participation that confers on a Person the right to receive a share of
the profits and losses of, or distributions of assets of, the issuing
Person.
"Change of Control" means either of the following events:
-----------------
(a) any "person" or "group" (within the meaning of Section 13(d)
or 14(d) of the Exchange Act) has become, directly or indirectly, the
"beneficial owner" (as defined in Rules 13d-3 (other than subsection
(d) thereof) and 13d-5 under the Exchange Act), by way of merger,
consolidation or otherwise of 40% or more of the voting power of the
Borrower on a fully-diluted basis, after giving effect to the
conversion and exercise of all outstanding warrants, options and other
securities of the Borrower convertible into or exercisable for voting
stock of the Borrower (whether or not such securities are then
currently convertible or exercisable); or
3
(b) during any period of two consecutive calendar years,
individuals who at the beginning of such period constituted the board
of directors of the Borrower together with any new members of such
board of directors whose elections by such board or board of directors
or whose nomination for election by the stockholders of the Borrower
was approved by a vote of a majority of the members of such board of
directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election
was previously so approved cease for any reason to constitute a
majority of the directors of the Borrower then in office.
"Closing Date" means the date hereof.
------------
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time, and the rules and regulations promulgated thereunder.
"Commitment Percentage" means, for each Lender, the percentage
---------------------
identified as its Commitment Percentage opposite such Lender's name on
Schedule 1.1, as such percentage may be modified by assignment in
------------
accordance with the terms of this Credit Agreement.
"Commitments" means, collectively, each Lender's share of the
-----------
Revolving Loan Commitment based upon such Lender's Commitment Percentage,
as reflected on Schedule 1.1.
------------
"Competitive Bid" means an offer by a Lender to make a Competitive Bid
---------------
Loan pursuant to the terms of Section 2.1(b).
"Competitive Bid Fee" means a fee of $1,000 payable by the Borrower to
-------------------
the Administrative Agent in connection with a Competitive Bid Request
pursuant to Section 2.1(b).
"Competitive Bid Loan" means a loan made by a Lender in its discretion
--------------------
pursuant to the provisions of Section 2.1(b).
"Competitive Bid Loan Notes" means the promissory notes of the
--------------------------
Borrower in favor of each Lender evidencing the Competitive Bid Loans and
substantially in the form of Exhibit 2.7(b), as such promissory notes may
--------------
be amended, modified, supplemented or replaced from time to time.
"Competitive Bid Rate" means, as to any Competitive Bid made by a
--------------------
Lender in accordance with the provisions of Section 2.1(b), the rate of
interest offered by the Lender making the Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
-----------------------
Competitive Bids in the form of Exhibit 2.1(b).
--------------
4
"Consolidated Capitalization" means, without duplication, the sum of
---------------------------
(a) all of the shareholders' equity or net worth of the Borrower and its
Subsidiaries on a consolidated basis, as determined in accordance with GAAP
plus (b) the aggregate principal amount of Preferred Securities plus (c)
the aggregate Minority Interests in Subsidiaries plus (d) Consolidated
Funded Debt.
"Consolidated Funded Debt" means, without duplication, the sum of (a)
------------------------
all indebtedness of the Borrower and its Subsidiaries for borrowed money,
(b) all purchase money indebtedness of the Borrower and its Subsidiaries,
(c) the principal portion of all obligations of the Borrower and its
Subsidiaries under capital leases, (d) all commercial letters of credit and
the maximum amount of all performance and standby letters of credit issued
or bankers' acceptance facilities created for the account of the Borrower
or one of its Subsidiaries, including, without duplication, all
unreimbursed draws thereunder, (e) all Guaranty Obligations of the Borrower
and its Subsidiaries with respect to funded indebtedness of another Person;
provided that neither the indebtedness of ▇▇▇▇▇▇▇▇ Marketing, LLC
("▇▇▇▇▇▇▇▇") incurred in connection with the purchase of gas by ▇▇▇▇▇▇▇▇
----------
for resale to the Borrower nor the guaranty by the Borrower or one of its
Subsidiaries of such indebtedness shall be included in this definition if
such indebtedness has been outstanding for less than two months from the
date of its incurrence by ▇▇▇▇▇▇▇▇, (f) all indebtedness of another entity
secured by a Lien on any property of the Borrower or any of its
Subsidiaries whether or not such indebtedness has been assumed by the
Borrower or any of its Subsidiaries, (g) all indebtedness of any
partnership or unincorporated joint venture to the extent the Borrower or
one of its Subsidiaries is legally obligated with respect thereto, net of
any assets of such partnership or joint venture, (h) all obligations of the
Borrower and its Subsidiaries to advance or provide funds or other support
for the payment or purchase of funded indebtedness (including, without
limitation, maintenance agreements, comfort letters or similar agreements
or arrangements) (other than as may be given in respect of ▇▇▇▇▇▇▇▇) and
(i) the principal balance outstanding under any synthetic lease, tax
retention operating lease, off-balance sheet loan or similar off-balance
sheet financing product of the Borrower or one of its Material Subsidiaries
where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease in accordance with GAAP.
"Consolidated Net Property" means the Fixed Assets less, without
-------------------------
duplication, the amount of accumulated depreciation and amortization
attributable thereto.
"Credit Documents" means this Credit Agreement, the Notes, any Notice
----------------
of Borrowing and all other related agreements and documents issued or
delivered hereunder or thereunder or pursuant hereto or thereto.
"Debt to Capitalization Ratio" means the ratio of (a) Consolidated
----------------------------
Funded Debt to (b) Consolidated Capitalization.
"Default" means any event, act or condition which with notice or lapse
-------
of time, or both, would constitute an Event of Default.
5
"Defaulting Lender" means, at any time, any Lender that, at such time
-----------------
(a) has failed to make a Loan required pursuant to the term of this Credit
Agreement, (b) has failed to pay to the Administrative Agent or any Lender
an amount owed by such Lender pursuant to the terms of this Credit
Agreement or (c) has been deemed insolvent or has become subject to a
bankruptcy or insolvency proceeding or to a receiver, trustee or similar
official.
"Dollars" and "$" means dollars in lawful currency of the United
------- -
States of America.
"Effective Date" means the date on which all of the conditions set
--------------
forth in Section 5.1 shall have been fulfilled (or waived in the sole
discretion of the Lenders).
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
-----------------
and (c) any other Person approved by the Administrative Agent and the
Borrower (such approval not to be unreasonably withheld or delayed);
provided that (i) the Borrower's consent is not required during the
-------- ----
existence and continuation of an Event of Default, (ii) approval by the
Borrower shall be deemed given if no objection is received by the
Administrative Agent from the Borrower within five Business Days after
notice of such proposed assignment has been received by the Borrower; and
(iii) neither the Borrower nor an Affiliate of the Borrower shall qualify
as an Eligible Assignee.
"Environmental Laws" means any current or future legal requirement of
------------------
any Governmental Authority pertaining to (a) the protection of health,
safety, and the indoor or outdoor environment, (b) the conservation,
management, or use of natural resources and wildlife, (c) the protection or
use of surface water and groundwater or (d) the management, manufacture,
possession, presence, use, generation, transportation, treatment, storage,
disposal, release, threatened release, abatement, removal, remediation or
handling of, or exposure to, any hazardous or toxic substance or material
or (e) pollution (including any release to land surface water and
groundwater) and includes, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended
by the Superfund Amendments and Reauthorization Act of 1986, 42 USC 9601 et
seq., Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and Hazardous and Solid Waste Amendment of 1984, 42
USC 6901 et seq., Federal Water Pollution Control Act, as amended by the
Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act of 1966, as
amended, 42 USC 7401 et seq., Toxic Substances Control Act of 1976, 15 USC
2601 et seq., Hazardous Materials Transportation Act, 49 USC App. 1801 et
seq., Occupational Safety and Health Act of 1970, as amended, 29 USC 651 et
seq., Oil Pollution Act of 1990, 33 USC 2701 et seq., Emergency Planning
and Community Right-to-Know Act of 1986, 42 USC 11001 et seq., National
Environmental Policy Act of 1969, 42 USC 4321 et seq., Safe Drinking Water
Act of 1974, as amended, 42 USC 300(f) et seq., any analogous implementing
or successor law, and any amendment, rule, regulation, order, or directive
issued thereunder.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended, and any successor statute thereto, as interpreted by the rules and
regulations
6
thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity, whether or not incorporated, which
---------------
is under common control with the Borrower or any of its Subsidiaries within
the meaning of Section 4001(a)(14) of ERISA, or is a member of a group
which includes the Borrower or any of its Subsidiaries and which is treated
as a single employer under Sections 414(b), (c), (m), or (o) of the Code.
"Eurodollar Loan" means a Loan bearing interest at the Adjusted
---------------
Eurodollar Rate.
"Eurodollar Rate" means with respect to any Eurodollar Loan, for the
---------------
Interest Period applicable thereto, a rate per annum determined pursuant to
the following formula:
"Eurodollar Rate" = London Interbank Offered Rate
----------------------------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means, for any day, that percentage
-----------------------------
(expressed as a decimal) which is in effect from time to time under
Regulation D of the Board of Governors of the Federal Reserve System (or
any successor), as such regulation may be amended from time to time or any
successor regulation, as the maximum reserve requirement (including,
without limitation, any basic, supplemental, emergency, special, or
marginal reserves) applicable with respect to Eurocurrency liabilities, as
that term is defined in Regulation D (or against any other category of
liabilities that includes deposits by reference to which the interest rate
of Eurodollar Loans is determined), whether or not a Lender has any
Eurocurrency liabilities subject to such reserve requirement at that time.
Eurodollar Loans shall be deemed to constitute Eurocurrency liabilities and
as such shall be deemed subject to reserve requirements without benefits of
credits for proration, exceptions or offsets that may be available from
time to time to a Lender. The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Event of Default" has the meaning specified in Section 9.1.
----------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
------------
and the rules and regulations promulgated thereunder.
"Fee Letter" means that certain letter agreement, dated as of April
----------
13, 2000, between the Administrative Agent and the Borrower, as amended,
modified, supplemented or replaced from time to time.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
------------------
upward to the nearest 1/100th of 1%) equal to the weighted average of the
rates on overnight Federal 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
7
Business Day next succeeding such day; provided that (a) if such day is not
--------
a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day and (b) if no such
rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate quoted to the
Administrative Agent on such day on such transactions as determined by the
Administrative Agent.
"Financial Officer" means any one of the chief financial officer, the
-----------------
controller or the treasurer of the Borrower.
"Fixed Assets" means the assets of the Borrower and its Subsidiaries
------------
constituting "net property, plant and equipment" on the consolidated
balance sheet of the Borrower and its Subsidiaries.
"GAAP" means generally accepted accounting principles in the United
----
States applied on a consistent basis and subject to Section 1.3.
"Governmental Authority" means any Federal, state, local or foreign
----------------------
court or governmental agency, authority, instrumentality or regulatory
body.
"Guaranty Obligations" means, with respect to any Person, without
--------------------
duplication, any obligations (other than endorsements in the ordinary
course of business of negotiable instruments for deposit or collection)
guaranteeing any indebtedness for borrowed money of any other Person in any
manner, whether direct or indirect, and including without limitation any
obligation, whether or not contingent, (a) to purchase any such
indebtedness or other obligation or any property constituting security
therefor, (b) to lease or purchase property, securities or services
primarily for the purpose of assuring the owner of such indebtedness or (c)
to otherwise assure or hold harmless the owner of such indebtedness or
obligation against loss in respect thereof. The amount of any Guaranty
Obligation hereunder shall (subject to any limitations set forth therein)
be deemed to be an amount equal to the outstanding principal amount of the
indebtedness in respect of which such Guaranty Obligation is made.
"Interest Payment Date" means (a) as to Base Rate Loans, the last day
---------------------
of each fiscal quarter of the Borrower and the Maturity Date, (b) as to
Eurodollar Loans, the last day of each applicable Interest Period and the
Maturity Date and, in addition, where the applicable Interest Period for a
Eurodollar Loan is greater than three months, then also on the last day of
each three-month period during such Interest Period and (c) as to
Competitive Bid Loans, the last day of each applicable Interest Period and
the Maturity Date.
"Interest Period" means (a) as to Eurodollar Loans, a period of one,
---------------
two, three or six months' duration, as the Borrower may elect, commencing,
in each case, on the date of the borrowing (including continuations and
conversions of Eurodollar Loans) and (b) with respect to Competitive Bid
Loans, a period beginning on the date the Competitive Bid Loan is made and
ending on a date specified in the applicable Competitive Bid Request
pursuant
8
to which the offer to make such Competitive Bid Loan was extended, which
shall not be less than 30 days nor more than 90 days in duration; provided,
--------
however, (a) if any Interest Period would end on a day which is not a
-------
Business Day, such Interest Period shall be extended to the next succeeding
Business Day (except that where the next succeeding Business Day falls in
the next succeeding calendar month, then such Interest Period shall end on
the next preceding Business Day), (b) no Interest Period shall extend
beyond the Maturity Date and (c) with respect to Eurodollar Loans, where an
Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month in which the Interest Period is to
end, such Interest Period shall end on the last Business Day of such
calendar month.
"Lender" means any of the Persons identified as a "Lender" on the
------
signature pages hereto, and any Eligible Assignee which may become a Lender
by way of assignment in accordance with the terms hereof, together with
their successors and permitted assigns.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, security interest, encumbrance, lien (statutory or otherwise),
preference, priority or charge of any kind (including any agreement to give
any of the foregoing).
"Loans" means the Revolving Loans and the Competitive Bid Loans.
-----
"London Interbank Offered Rate" means, with respect to any Eurodollar
-----------------------------
Loan for the Interest Period applicable thereto, the rate of interest per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 A.M. (London
time) two Business Days prior to the first day of such Interest Period for
a term comparable to such Interest Period; provided, however, if more than
-------- -------
one rate is specified on Telerate Page 3750, the applicable rate shall be
the arithmetic mean of all such rates. If, for any reason, such rate is
not available, the term "London Interbank Offered Rate" shall mean, with
-----------------------------
respect to any Eurodollar Loan for the Interest Period applicable thereto,
the rate of interest per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided, however, if
more than one rate is specified on Reuters Screen LIBO Page, the applicable
rate shall be the arithmetic mean of all such rates.
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
operations, business, assets, liabilities (actual or contingent), financial
condition or prospects of the Borrower and its Subsidiaries, taken as a
whole (taking into account the value of any indemnifications in favor of
the Borrower pursuant to the Purchase and Sale Agreement), (b) the ability
of the Borrower to perform its obligations under this Credit Agreement or
(c) the validity or enforceability of this Credit Agreement, any of the
other Credit Documents, or the rights and remedies of the Lenders hereunder
or thereunder.
"Material Subsidiary" means, at any date, a Subsidiary of the Borrower
-------------------
whose
9
aggregate assets properly included under the category "property, plant and
equipment" on the balance sheet of such Subsidiary, less the amount of
depreciation and amortization attributable thereto, constitutes at least
10% of Consolidated Net Property as of such date; provided that if at any
time the Borrower has Subsidiaries that are not Material Subsidiaries whose
total aggregate assets under the category "property, plant and equipment"
on the balance sheet of such Subsidiaries, less the amount of depreciation
and amortization attributable thereto, constitutes more than 20% of
Consolidated Net Property as of such date the Borrower shall designate one
or more of such Subsidiaries as Material Subsidiaries for the purposes of
this Agreement in order that all Subsidiaries of the Borrower, other than
Material Subsidiaries, own not more than 20% of Consolidated Net Property.
"Maturity Date" means August 2, 2001.
-------------
"Minority Interests" means interests owned by Persons (other than the
------------------
Borrower or a Subsidiary of the Borrower) in a Subsidiary of the Borrower
in which less than 100% of all classes of the voting securities are owned
by the Borrower or its Subsidiaries.
"Missouri Property Acquisition" means the acquisition, effective June
-----------------------------
1, 2000, by the Borrower of certain gas utility properties in Missouri from
a subsidiary of Southwestern Energy Corporation.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor or
-------
assignee of the business of such company in the business of rating
securities.
"Multiemployer Plan" means a Plan covered by Title IV of ERISA which
------------------
is a multiemployer plan as defined in Section 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan covered by Title IV of ERISA,
----------------------
other than a Multiemployer Plan, which the Borrower or any ERISA Affiliate
and at least one employer other than the Borrower or any ERISA Affiliate
are contributing sponsors.
"1957 Indenture" means, collectively, that certain Indenture of
--------------
Mortgage, dated as of March 1, 1957, granted by Greeley Gas Company
(predecessor in interest to the Borrower) to The Central Bank and Trust
Company, as original Trustee, and all Supplemental Indentures thereto.
"1959 Indenture" means, collectively, that certain Indenture of
--------------
Mortgage, dated as of July 15, 1959, granted by United Cities Gas Company
(predecessor in interest to the Borrower) to City National Bank and Trust
Company of Chicago and R. ▇▇▇▇▇▇ ▇▇▇▇▇▇, as the original Trustees, and all
Supplemental Indentures thereto, including, without limitation, that
certain First Supplemental Indenture, dated as of November 1, 1960; that
certain Second Supplemental Indenture, dated as of June 1, 1962; that
certain Third Supplemental Indenture, dated as of February 1, 1963; that
certain Fourth Supplemental Indenture, dated as of June 15, 1963; that
certain Fifth Supplemental Indenture, dated as of November 15, 1964; that
certain Sixth Supplemental Indenture, dated as of March 15,
10
1968; that certain Seventh Supplemental Indenture, dated as of August 1,
1970; that certain Eighth Supplemental Indenture, dated as of September 1,
1972; that certain Ninth Supplemental Indenture, dated as of January 1,
1974; that certain Tenth Supplemental Indenture, dated as of July 1, 1976;
that certain Eleventh Supplemental Indenture, dated as of December 1, 1976;
that certain Twelfth Supplemental Indenture, dated as of April 1, 1981;
that certain Thirteenth Supplemental Indenture, dated as of May 1, 1982;
that certain Fourteenth Supplemental Indenture, dated as of March 1, 1987;
that certain Fifteenth Supplemental Indenture, dated as of October 1, 1987;
that certain Sixteenth Supplemental Indenture, dated as of December 1,
1989; that certain Seventeenth Supplemental Indenture, dated as of April 1,
1990; that certain Eighteenth Supplemental Indenture, dated as of June 1,
1991; that certain Nineteenth Supplemental Indenture, dated as of May 1,
1992; that certain Twentieth Supplemental Indenture, dated as of December
1, 1992; that certain Twenty-First Supplemental Indenture, dated as of
February 5, 1997; and that certain Twenty-Second Supplemental Indenture,
dated as of July 29, 1997.
"1987 Note Purchase Agreements" means, collectively, those certain
-----------------------------
Note Purchase Agreements, dated as of December 21, 1987, by and between
Energas Company (predecessor in interest to the Borrower) and (a) ▇▇▇▇
▇▇▇▇▇▇▇ Mutual Life Insurance Company, (b) ▇▇▇▇ ▇▇▇▇▇▇▇ Charitable Trust I
and (c) Mellon Bank, N.A., Trustee under the Master Trust of AT&T
Corporation, and all Amendments thereto, including, without limitation,
that certain Amendment to Note Purchase Agreements, amending each of the
above-referenced Note Purchase Agreements, each dated as of (i) October 11,
1989, (ii) November 12, 1991, (iii) December 22, 1993, (iv) December 20,
1994 and July 29, 1997.
"1989 Note Purchase Agreement" means, collectively, that certain Note
----------------------------
Purchase Agreement, dated as of October 11, 1989, by and between the
Borrower and ▇▇▇▇ ▇▇▇▇▇▇▇ Mutual Life Insurance Company, and all Amendments
thereto, including, without limitation, those Amendments dated as of
October 11, 1989, November 12, 1991, December 22, 1993, December 20, 1994,
and July 29, 1997.
"1991 Note Purchase Agreement" means, collectively, that certain Note
----------------------------
Purchase Agreement, dated as of August 29, 1991, by and between the
Borrower and The Variable Annuity Life Insurance Company, and all
Amendments thereto, including, without limitation, those Amendments dated
as of November 26, 1991, December 22, 1993, and July 29, 1997.
"1992 Note Purchase Agreement" means, collectively, that certain Note
----------------------------
Purchase Agreement, dated as of August 31, 1992, by and between the
Borrower and The Variable Annuity Life Insurance Company, and all
Amendments thereto, including, without limitation, those Amendments dated
as of December 22, 1993, and July 29, 1997.
"1994 Note Purchase Agreement" means, collectively, that certain Note
----------------------------
Purchase Agreement dated November 14, 1994, by and among the Borrower and
New York Life
11
Insurance Company, New York Life Insurance and Annuity Corporation, The
Variable Annuity Life Insurance Company, American General Life Insurance
Company, and Merit Life Insurance Company, and all Amendments thereto;
including, without limitation, that Amendment dated as of July 29, 1997.
"1998 Indenture" means, collectively, that certain Indenture, dated as
--------------
of July 15, 1998, granted by the Borrower to US Bank Trust National
Association, as Trustee, and all Supplemental Indentures thereto.
"Notes" means the Revolving Loan Notes and the Competitive Bid Loan
-----
Notes.
"Notice of Borrowing" means a request by the Borrower for a Revolving
-------------------
Loan in the form of Exhibit 2.2.
-----------
"Notice of Continuation/Conversion" means a request by the Borrower
---------------------------------
for the continuation or conversion of a Revolving Loan in the form of
Exhibit 2.4.
-----------
"PBGC" means the Pension Benefit Guaranty Corporation established
----
pursuant to Subtitle A of Title IV of ERISA and any successor thereto.
"Person" means any individual, partnership, joint venture, firm,
------
corporation, association, trust, limited liability company or other
enterprise (whether or not incorporated), or any government or political
subdivision or any agency, department or instrumentality thereof.
"Plan" means any employee benefit plan (as defined in Section 3(3) of
----
ERISA) which is covered by ERISA and with respect to which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" within the
meaning of Section 3(5) of ERISA.
"Preferred Securities" means, at any date, any equity interests in the
--------------------
Borrower, in a Special Purpose Financing Subsidiary of the Borrower or in
any other Subsidiary of the Borrower (such as those known as "TECONS",
"MIPS" or "RHINOS"): (a) that are not (i) required to be redeemed or
redeemable at the option of the holder thereof prior to the fifth
anniversary of the Maturity Date or (ii) convertible into or exchangeable
for (unless solely at the option of the Borrower or such Subsidiary of the
Borrower) equity interests referred to in clause (i) above or indebtedness
having a scheduled maturity, or requiring any repayments or prepayments of
principal or any sinking fund or similar payments in respect of principal
or providing for any such repayment, prepayment, sinking fund or other
payment at the option of the holder thereof prior to the fifth anniversary
of the Maturity Date and (b) as to which, at such date, the Borrower or
such Subsidiary of the Borrower has the right to defer the payment of all
dividends and other distributions in respect thereof for the period of at
least 19 consecutive quarters beginning at such date.
"Prime Rate" means the per annum rate of interest established from
----------
time to time by
12
the Administrative Agent at its principal office in Charlotte, North
Carolina (or such other principal office as communicated by the
Administrative Agent to the Borrower and the Lenders) as its Prime Rate.
Any change in the interest rate resulting from a change in the Prime Rate
shall become effective as of 12:01 a.m. of the Business Day on which each
change in the Prime Rate is announced by the Administrative Agent. The
Prime Rate is a reference rate used by the Administrative Agent in
determining interest rates on certain loans and is not intended to be the
lowest rate of interest charged on any extension of credit to any debtor.
"Purchase and Sale Agreement" means that certain Purchase and Sale
---------------------------
Agreement, dated as of April 13, 2000, among Citizens Utilities Company,
LGS Natural Gas Company and the Borrower.
"Register" has the meaning set forth in Section 11.3(c).
--------
"Regulation A, D, O, T, U, or X" means Regulation A, D, O, T, U or X,
------------------------------
respectively, of the Board of Governors of the Federal Reserve System as
from time to time in effect, any amendment thereto and any successor to all
or a portion thereof.
"Reportable Event" means a "reportable event" as defined in Section
----------------
4043 of ERISA with respect to which the notice requirements to the PBGC
have not been waived.
"Required Lenders" means Lenders whose aggregate Credit Exposure (as
----------------
hereinafter defined) constitutes more than 50% of the aggregate Credit
Exposure of all Lenders at such time; provided, however, that if any Lender
-------- -------
shall be a Defaulting Lender at such time then there shall be excluded from
the determination of Required Lenders the aggregate principal amount of
Credit Exposure of such Lender at such time. For purposes of the preceding
sentence, the term "Credit Exposure" as applied to each Lender shall mean
(a) at any time prior to the termination of the Commitments, the Commitment
Percentage of such Lender multiplied times the Revolving Loan Commitment
and (b) at any time after the termination of the Commitments, the sum of
the principal balance of the outstanding Revolving Loans of such Lender.
"Revolving Loan" means a loan made by a Lender to the Borrower
--------------
pursuant to Section 2.1(a).
"Revolving Loan Commitment" means THREE HUNDRED MILLION DOLLARS
-------------------------
($300,000,000) as such amount may be otherwise reduced in accordance with
Section 2.6.
"Revolving Loan Notes" means the promissory notes of the Borrower in
--------------------
favor of each Lender evidencing the Loans and substantially in the form of
Exhibit 2.7(a), as such promissory notes may be amended, modified,
--------------
supplemented or replaced from time to time.
13
"S&P" means Standard & Poor's Ratings Services, a division of McGraw
---
Hill, Inc., or any successor or assignee of the business of such division
in the business of rating securities.
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations promulgated thereunder.
"Single Employer Plan" means any Plan which is covered by Title IV of
--------------------
ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.
"Special Purpose Financing Subsidiary" means a Subsidiary of the
------------------------------------
Borrower that has no direct or indirect interest in the business of the
Borrower and its other Subsidiaries and was formed solely for the purpose
of issuing Trust Preferred Securities.
"Subsidiary" means, as to any Person, (a) any corporation more than
----------
50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not, at the time, any class or
classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time owned by such Person
directly or indirectly through Subsidiaries and (b) any partnership,
association, joint venture, limited liability company or other entity in
which such Person directly or indirectly through Subsidiaries has more than
50% equity interest at any time.
"Termination Event" means (a) with respect to any Single Employer
-----------------
Plan, the occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA), (b) the
withdrawal of the Borrower or any ERISA Affiliate from a Multiple Employer
Plan during a plan year in which it was a substantial employer (as such
term is defined in Section 4001(a)(2) of ERISA), or the termination of a
Multiple Employer Plan, (c) the distribution of a notice of intent to
terminate or the actual termination of a Plan pursuant to Section
4041(a)(2) or 4041A of ERISA, (d) the institution of proceedings to
terminate or the actual termination of a Plan by the PBGC under Section
4042 of ERISA, (e) any event or condition which might reasonably constitute
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or (f) the complete or
partial withdrawal of the Borrower or any ERISA Affiliate from a
Multiemployer Plan.
"Total Assets" means all assets of the Borrower as shown on its most
------------
recent quarterly consolidated balance sheet, as determined in accordance
with GAAP.
"2000 Indenture" means, collectively, that certain proposed Indenture
--------------
to be granted by the Borrower to SunTrust Bank, Atlanta, as Trustee, in
connection with the Borrower's proposed debt offering currently planned for
calendar years 2000 and 2001, and all Supplemental Indentures thereto.
14
"Unused Revolving Loan Commitment" means, for any period from the
--------------------------------
Effective Date to the Maturity Date, the amount by which (a) the then
applicable Revolving Loan Commitment exceeds (b) the daily average sum for
such period of the aggregate principal amount of all Revolving Loans
outstanding.
"Unused Fees" has the meaning set forth in Section 3.4(a).
-----------
"Utilization Fees" has the meaning set forth in Section 3.4(b).
----------------
"Utilized Revolving Commitment" means, for any day that the
-----------------------------
Utilization Fees are required to be paid pursuant to Section 3.4(b), the
amount equal to the principal amount of Loans outstanding on such day.
1.2 Computation of Time Periods.
---------------------------
For purposes of computation of periods of time hereunder, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding." References in this Credit Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits
of or to this Credit Agreement unless otherwise specifically provided.
1.3 Accounting Terms.
----------------
Except as otherwise expressly provided herein, all accounting terms used
herein shall be interpreted, and all financial statements and certificates and
reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly provided herein) be
made by application of GAAP applied on a basis consistent with the most recent
annual or quarterly financial statements delivered pursuant to Section 7.1 (or,
prior to the delivery of the first financial statements pursuant to Section 7.1,
consistent with the financial statements described in Section 5.1(d)); provided,
--------
however, if (a) the Borrower shall object to determining such compliance on such
-------
basis at the time of delivery of such financial statements due to any change in
GAAP or the rules promulgated with respect thereto or (b) the Administrative
Agent or the Required Lenders shall so object in writing within 30 days after
delivery of such financial statements, then such calculations shall be made on a
basis consistent with the most recent financial statements delivered by the
Borrower to the Lenders as to which no such objection shall have been made.
1.4 Time.
----
All references to time herein shall be references to Central Standard Time
or Central Daylight time, as the case may be, unless specified otherwise.
15
SECTION 2.
LOANS
2.1 Revolving Loan Commitment.
-------------------------
(a) Revolving Loans. Subject to the terms and conditions set forth
---------------
herein, each Lender severally agrees to make revolving loans to the
Borrower in Dollars, at any time and from time to time, during the period
from the Effective Date to the Maturity Date (each a "Revolving Loan" and
collectively the "Revolving Loans"); provided, however, that (i) the
-------- -------
aggregate amount of Revolving Loans outstanding plus the aggregate amount
of Competitive Bid Loans outstanding shall not exceed the Revolving Loan
Commitment and (ii) with respect to each individual Lender, the Lender's
Commitment Percentage multiplied by the outstanding Revolving Loans shall
not exceed such Lender's Commitment. Subject to the terms of this Credit
Agreement, the Borrower may borrow, repay and reborrow Revolving Loans.
(b) Competitive Bid Loans Subfacility.
---------------------------------
(i) Competitive Bid Loans. Subject to the terms and conditions
---------------------
set forth herein, the Borrower may, from time to time, during the
period from the Effective Date to the Maturity Date, request, in
Dollars, and each Lender may, in its sole discretion, agree to make
Competitive Bid Loans to the Borrower; provided, however, that (A) the
-------- -------
sum of the aggregate amount of Revolving Loans outstanding plus the
aggregate amount of Competitive Bid Loans outstanding shall not exceed
the Revolving Loan Commitment and (B) if a Lender does make a
Competitive Bid Loan it shall not reduce such Lender's obligation to
make its pro rata share of any Revolving Loan.
(ii) Competitive Bid Requests. The Borrower may solicit
------------------------
Competitive Bids by delivery of a Competitive Bid Request to the
Administrative Agent by 10:00 a.m. on a Business Day not less than one
nor more than five Business Days prior to the date of the requested
Competitive Bid Loan. A Competitive Bid Request must be substantially
in the form of Exhibit 2.1(b) and shall specify (A) the date of the
--------------
requested Competitive Bid Loan (which shall be a Business Day), (B)
the amount of the requested Competitive Bid Loan and (C) the
applicable Interest Period or Interest Periods requested and must be
accompanied by the Competitive Bid Fee. The Administrative Agent
shall notify the Lenders of its receipt of a Competitive Bid Request
and the contents thereof and invite the Lenders to submit Competitive
Bids in response thereto. The Borrower may not request a Competitive
Bid for more than three different Interest Periods per Competitive Bid
Request and Competitive Bid Requests may be made no more frequently
than four times every calendar month.
(iii) Competitive Bid Procedure. Each Lender may, in its sole
-------------------------
16
discretion, make one or more Competitive Bids to the Borrower in
response to a Competitive Bid Request. Each Competitive Bid must be
received by the Administrative Agent not later than 10:00 a.m. on the
proposed date of the requested Competitive Bid Loan; provided,
--------
however, that should the Administrative Agent, in its capacity as a
-------
Lender, desire to submit a Competitive Bid it shall notify the
Borrower of its Competitive Bid and the terms thereof not later than
15 minutes prior to the time the other Lenders are required to submit
their Competitive Bid. A Lender may offer to make all or part of the
requested Competitive Bid Loan and may submit multiple Competitive
Bids in response to a Competitive Bid Request. Any Competitive Bid
must specify (A) the particular Competitive Bid Request as to which
the Competitive Bid is submitted, (B) the minimum (which shall be not
less than $5,000,000 and integral multiples of $1,000,000 in excess
thereof) and maximum principal amounts of the requested Competitive
Bid Loan or Loans that the Lender is willing to make and (C) the
applicable interest rate or rates and Interest Period or Interest
Periods therefor. A Competitive Bid submitted by a Lender in
accordance with the provisions hereof shall be irrevocable. The
Administrative Agent shall promptly notify the Borrower of all
Competitive Bids made and the terms thereof.
(iv) Acceptance of Competitive Bids. The Borrower may, in its
------------------------------
sole discretion, subject only to the provisions of this subsection
(iv), accept or refuse any Competitive Bid offered to it. To accept a
Competitive Bid, the Borrower shall give oral notification of its
acceptance of any or all such Competitive Bids (which shall be
promptly confirmed in writing) to the Administrative Agent by 11:00
a.m. on the proposed date of the Competitive Bid Loan; provided,
--------
however, (A) the failure by the Borrower to give timely notice of its
-------
acceptance of a Competitive Bid shall be deemed to be a refusal
thereof, (B) to the extent Competitive Bids are for comparable
Interest Periods, the Borrower may accept Competitive Bids only in
ascending order of rates, (C) the aggregate amount of Competitive Bids
accepted by the Borrower shall not exceed the principal amount
specified in the Competitive Bid Request, (D) if the Borrower shall
accept a bid or bids made at a particular Competitive Bid Rate, but
the amount of such bid or bids shall cause the total amount of bids to
be accepted by the Borrower to be in excess of the amount specified in
the Competitive Bid Request, then the Borrower shall accept a portion
of such bid or bids in an amount equal to the amount specified in the
Competitive Bid Request less the amount of all other Competitive Bids
accepted with respect to such Competitive Bid Request, which
acceptance in the case of multiple bids at such Competitive Bid Rate,
shall be made pro rata in accordance with the amount of each such bid
at such Competitive Bid Rate and (E) no bid shall be accepted for a
Competitive Bid Loan unless such Competitive Bid Loan is in a minimum
principal amount of $5,000,000 and integral multiples of $1,000,000 in
excess thereof, except that where a portion of a Competitive Bid is
accepted in accordance with the provisions of clause (D) of this
subsection (iv), then in a minimum principal amount of $500,000 and
integral multiples of $100,000 (but not in any event less than the
minimum amount specified in the
17
Competitive Bid), and in calculating the pro rata allocation of
acceptances of portions of multiple bids at a particular Competitive
Bid Rate pursuant to clause (D) of this subsection (iv), the amounts
shall be rounded to integral multiples of $100,000 in a manner which
shall be in the discretion of the Borrower. A notice of acceptance of
a Competitive Bid given by the Borrower in accordance with the
provisions hereof shall be irrevocable. The Administrative Agent
shall, not later than noon on the proposed date of such Competitive
Bid Loan, notify each bidding Lender whether or not its Competitive
Bid has been accepted (and, if so, in what amount and at what
Competitive Bid Rate), and each successful bidder will thereupon
become bound, subject to the other applicable conditions hereof, to
make the Competitive Bid Loan in respect of which its bid has been
accepted. The Administrative Agent shall send a copy of each of the
Competitive Bids to the Borrower and each of the Lenders for its
records as soon as practicable.
(v) Funding of Competitive Bid Loans. Each Lender which is to
--------------------------------
make a Competitive Bid Loan shall make its Competitive Bid Loan
available to the Administrative Agent by 2:00 p.m. on the date
specified in the Competitive Bid Request by deposit of immediately
available funds at the Agency Services Address. The Administrative
Agent will, upon receipt, make the proceeds of such Competitive Bid
Loans available to the Borrower.
(vi) Maturity of Competitive Bid Loans. Each Competitive Bid
---------------------------------
Loan shall mature and be due and payable in full on the last day of
the Interest Period applicable thereto. Unless the Borrower shall
give notice to the Administrative Agent otherwise (or repays such
Competitive Bid Loan), or a Default or Event of Default exists and is
continuing, the Borrower shall be deemed to have requested Revolving
Loans from all of the Lenders (in the amount of the maturing
Competitive Bid Loan and accruing interest at the Base Rate), the
proceeds of which will be used to repay such Competitive Bid Loan.
2.2 Method of Borrowing for Revolving Loans.
---------------------------------------
By no later than 11:00 a.m. (a) on the date of the requested borrowing of
Revolving Loans that will be Base Rate Loans or (b) three Business Days prior to
the date of the requested borrowing of Revolving Loans that will be Eurodollar
Loans, the Borrower shall telephone the Administrative Agent as well as submit a
written Notice of Borrowing in the form of Exhibit 2.2 to the Administrative
-----------
Agent setting forth (i) the amount requested, (ii) whether such Loans shall
accrue interest at the Base Rate or the Adjusted Eurodollar Rate, (iii) with
respect to Loans that will be Eurodollar Loans, the Interest Period applicable
thereto and (iv) certification that the Borrower has complied in all respects
with Section 5.2.
2.3 Funding of Revolving Loans.
--------------------------
Upon receipt of a Notice of Borrowing, the Administrative Agent shall
promptly inform the
18
Lenders as to the terms thereof. Each such Lender shall make its Commitment
Percentage of the requested Revolving Loans available to the Administrative
Agent by 1:00 p.m. on the date specified in the Notice of Borrowing by deposit,
in Dollars, of immediately available funds at the Agency Services Address. The
amount of the requested Revolving Loans will then be made available to the
Borrower by the Administrative Agent by crediting the account of the Borrower on
the books of such office of the Administrative Agent, to the extent the amount
of such Revolving Loans are made available to the Administrative Agent.
No Lender shall be responsible for the failure or delay by any other Lender
in its obligation to make Revolving Loans hereunder; provided, however, that the
-------- -------
failure of any Lender to fulfill its obligations hereunder shall not relieve any
other Lender of its obligations hereunder. Unless the Administrative Agent
shall have been notified by any Lender prior to the date of any such Revolving
Loan that such Lender does not intend to make available to the Administrative
Agent its portion of the Revolving Loans to be made on such date, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on the date of such Revolving Loans, and the
Administrative Agent in reliance upon such assumption, may (in its sole
discretion but without any obligation to do so) make available to the Borrower a
corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent, the Administrative Agent shall be able to
recover such corresponding amount from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent will promptly notify the Borrower, and the
Borrower shall immediately pay such corresponding amount to the Administrative
Agent. The Administrative Agent shall also be entitled to recover from the
Lender or the Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the Borrower to the date such
corresponding amount is recovered by the Administrative Agent at a per annum
rate equal to (a) from the Borrower at the applicable rate for such Revolving
Loan pursuant to the Notice of Borrowing and (b) from a Lender at the Federal
Funds Rate.
2.4 Continuations and Conversions.
-----------------------------
The Borrower shall have the option, on any Business Day, to continue
existing Eurodollar Loans for a subsequent Interest Period, to convert Base Rate
Loans into Eurodollar Loans or to convert Eurodollar Loans into Base Rate Loans;
provided, however, that (a) each such continuation or conversion must be
requested by the Borrower pursuant to a written Notice of
Continuation/Conversion, in the form of Exhibit 2.4, in compliance with the
-----------
terms set forth below, (b) except as provided in Section 4.1, Eurodollar Loans
may only be continued or converted into Base Rate Loans on the last day of the
Interest Period applicable thereto, (c) Eurodollar Loans may not be continued
nor may Base Rate Loans be converted into Eurodollar Loans during the existence
and continuation of a Default or Event of Default and (d) any request to extend
a Eurodollar Loan that fails to comply with the terms hereof or any failure to
request an extension of a Eurodollar Loan at the end of an Interest Period shall
constitute a conversion to a Base Rate Loan on the last day of the applicable
Interest Period. Each continuation or conversion must be requested by the
Borrower no later than 11:00 a.m. (i) on the date for a requested conversion of
a Eurodollar Loan to a Base Rate Loan or (ii) three
19
Business Days prior to the date for a requested continuation of a Eurodollar
Loan or conversion of a Base Rate Loan to a Eurodollar Loan, in each case
pursuant to a written Notice of Continuation/Conversion submitted to the
Administrative Agent which shall set forth (A) whether the Borrower wishes to
continue or convert such Loans and (B) if the request is to continue a
Eurodollar Loan or convert a Base Rate Loan to a Eurodollar Loan, the Interest
Period applicable thereto.
2.5 Minimum Amounts.
---------------
Each request for a Loan or a conversion or continuation hereunder shall be
subject to the following requirements: (a) each Eurodollar Loan shall be in a
minimum of $5,000,000 (and in integral multiples of $1,000,000 in excess
thereof), (b) each Base Rate Loan shall be in a minimum amount of the lesser of
$5,000,000 (and in integral multiples of $1,000,000 in excess thereof) or the
remaining amount of the Revolving Loan Commitment available to be borrowed and
(c) no more than five Eurodollar Loans shall be outstanding hereunder at any one
time. For the purposes of this Section, all Eurodollar Loans with the same
Interest Periods that begin and end on the same date shall be considered as one
Eurodollar Loan, but Eurodollar Loans with different Interest Periods, even if
they begin on the same date, shall be considered separate Eurodollar Loans.
2.6 Reductions of Revolving Loan Commitment.
---------------------------------------
Upon at least three Business Days' prior written notice, the Borrower shall
have the right to permanently terminate or reduce the aggregate unused amount of
the Revolving Loan Commitment at any time or from time to time; provided that
--------
(a) each partial reduction shall be in an aggregate amount at least equal to
$5,000,000 and in integral multiples of $1,000,000 above such amount and (b) no
reduction shall be made which would reduce the Revolving Loan Commitment to an
amount less than the sum of the then outstanding Revolving Loans plus the then
outstanding Competitive Bid Loans. Any reduction in (or termination of) the
Revolving Loan Commitment shall be permanent and may not be reinstated.
2.7 Notes.
-----
(a) Revolving Loan Notes. The Revolving Loans made by the Lenders
--------------------
shall be evidenced by a promissory note of the Borrower payable to each
Lender in substantially the form of Exhibit 2.7(a) (the "Revolving Loan
-------------- --------------
Notes").
-----
(b) Competitive Bid Loan Notes. The Competitive Bid Loans made by the
--------------------------
Lenders shall be evidenced by a promissory note of the Borrower payable to
each Lender in substantially the form of Exhibit 2.7(b) (the "Competitive
-------------- -----------
Bid Loan Notes").
--------------
The date, amount, type, interest rate and duration of Interest Period (if
applicable) of each Loan made by each Lender to the Borrower, and each payment
made on account of the principal thereof, shall be recorded by such Lender on
its books; provided that the failure of such Lender to make any such recordation
--------
or endorsement shall not affect the obligations of the Borrower to
20
make a payment when due of any amount owing hereunder or under any Note in
respect of the Loans to be evidenced by such Note, and each such recordation or
endorsement shall be conclusive and binding absent manifest error.
SECTION 3.
PAYMENTS
3.1 Interest.
--------
(a) Interest Rate.
-------------
(i) All Base Rate Loans shall accrue interest at the Base
Rate.
(ii) All Eurodollar Loans shall accrue interest at the Adjusted
Eurodollar Rate applicable to each Eurodollar Loan.
(iii) All Competitive Bid Loans shall accrue interest at the
applicable Competitive Bid Rate with respect to each Competitive Bid
Loan.
(b) Default Rate of Interest. Upon the occurrence, and during the
------------------------
continuation, of an Event of Default, the principal of and, to the extent
permitted by law, interest on the Loans and any other amounts owing
hereunder or under the other Credit Documents shall bear interest, payable
on demand, at a per annum rate equal to two percent (2%) plus the rate
which would otherwise be applicable (or if no rate is applicable, then the
rate for Revolving Loans that are Base Rate Loans plus two percent (2%) per
annum).
(c) Interest Payments. Interest on Loans shall be due and payable in
-----------------
arrears on each Interest Payment Date.
3.2 Prepayments.
-----------
(a) Voluntary Prepayments. The Borrower shall have the right to
---------------------
prepay Loans in whole or in part from time to time without premium or
penalty; provided, however, that (i) Eurodollar Loans may only be prepaid
-------- -------
on three Business Days' prior written notice to the Administrative Agent
and any prepayment of Eurodollar Loans will be subject to Section 4.3; (ii)
each such partial prepayment of Loans shall be in the minimum principal
amount of $5,000,000; and (iii) Competitive Bid Loans may not be prepaid
unless a breakage fee equal to the actual amount of damages suffered by the
Lender whose Competitive Bid Loan is prepaid is paid to such Lender.
Amounts prepaid hereunder shall be applied as the Borrower may elect;
provided that if the Borrower fails to specify the application of a
--------
voluntary prepayment then such prepayment shall be applied first to Base
Rate Loans, then to Eurodollar Loans in direct order of Interest Period
maturities, and then to Competitive Bid Loans pro rata among all Lenders
holding
21
same.
(b) Mandatory Prepayments. If at any time the amount of Revolving
---------------------
Loans outstanding plus the amount of Competitive Bid Loans outstanding
exceeds the Revolving Loan Commitment, the Borrower shall immediately make
a principal payment to the Administrative Agent in the manner and in an
amount such that the amount of Revolving Loans outstanding plus the amount
of Competitive Bid Loans outstanding is less than or equal to the Revolving
Loan Commitment. Any payments made under this Section 3.2(b) shall be
subject to Section 4.3 and shall be applied first to Base Rate Loans, then
to Eurodollar Loans in direct order of Interest Period maturities and then
to Competitive Bid Loans pro rata among all Lenders holding same.
3.3 Payment in full at Maturity.
---------------------------
On the Maturity Date, the entire outstanding principal balance of all
Loans, together with accrued but unpaid interest and all other sums owing under
this Credit Agreement and the other Credit Documents, shall be due and payable
in full, unless accelerated sooner pursuant to Section 9.2.
3.4 Fees.
----
(a) Unused Fees.
-----------
(i) In consideration of the Revolving Loan Commitment being made
available by the Lenders hereunder, the Borrower agrees to pay to the
Administrative Agent, for the pro rata benefit of each Lender, a per
annum fee equal to the Applicable Percentage for Unused Fees on the
Unused Revolving Loan Commitment (the "Unused Fees").
-----------
(ii) The accrued Unused Fees shall be due and payable in arrears
five Business Days after the end of each fiscal quarter of the
Borrower (as well as on the Maturity Date) for the immediately
preceding fiscal quarter (or portion thereof), beginning with the
first of such dates to occur after the Effective Date.
(b) Utilization Fees. For each day that the principal amount of
----------------
outstanding Loans hereunder shall exceed an amount equal to thirty three
percent (33%) of the Revolving Loan Commitment, the Borrower shall pay to
the Administrative Agent, for the pro rata benefit of the Lenders, a per
annum fee equal to one-eighth of one percent (.125%) on the Utilized
Revolving Commitment for such day (the "Utilization Fees"). The
----------------
Utilization Fees, if any, shall be due and payable in arrears five Business
Days after the end of each fiscal quarter of the Borrower (as well as on
the Maturity Date) for the immediately preceding fiscal quarter (or portion
thereof), beginning with the first of such dates to occur after the
Effective Date.
(c) Administrative Fees. The Borrower agrees to pay to the
-------------------
Administrative
22
Agent, for its own account, an annual fee as agreed to between the Borrower
and the Administrative Agent in the Fee Letter.
3.5 Place and Manner of Payments.
----------------------------
All payments of principal, interest, fees, expenses and other amounts to be
made by the Borrower under this Credit Agreement shall be made without setoff,
deduction or counterclaim and received not later than 2:00 p.m. on the date when
due, in Dollars and in immediately available funds, by the Administrative Agent
at the Agency Services Address. In the event any such payment shall be due on a
day that is not a Business Day, the applicable payment date shall be the next
succeeding Business Day, except, with respect to Eurodollar Loans, if the next
succeeding Business Day shall fall in the next succeeding calendar month, then
such payment shall be due on the next preceding Business Day. The Borrower
shall, at the time it makes any payment under this Credit Agreement, specify to
the Administrative Agent, the Loans, fees or other amounts payable by the
Borrower hereunder to which such payment is to be applied (and in the event that
it fails to specify, or if such application would be inconsistent with the terms
hereof, the Administrative Agent shall distribute such payment to the Lenders in
such manner as it reasonably determines in its sole discretion.)
3.6 Pro Rata Treatment.
------------------
Except to the extent otherwise provided herein, all Revolving Loans, each
payment or prepayment of principal of any Revolving Loan, each payment of
interest on the Revolving Loans, each payment of Unused Fees, each payment of
Utilization Fees, each reduction of the Revolving Loan Commitment, and each
conversion or continuation of any Revolving Loans, shall be allocated pro rata
among the Lenders in accordance with the respective Commitment Percentages;
provided that, if any Lender shall have failed to pay its applicable pro rata
--------
share of any Revolving Loan, then any amount to which such Lender would
otherwise be entitled pursuant to this Section 3.6 shall instead be payable to
the Administrative Agent until the share of such Revolving Loan not funded by
such Lender has been repaid and any interest owed by such Lender as a result of
such failure to fund has been paid; and provided further, that in the event any
-------- -------
amount paid to any Lender pursuant to this Section 3.6 is rescinded or must
otherwise be returned by the Administrative Agent, each Lender shall, upon the
request of the Administrative Agent, repay to the Administrative Agent the
amount so paid to such Lender, with interest for the period commencing on the
date such payment is returned by the Administrative Agent until the date the
Administrative Agent receives such repayment at a rate per annum equal to,
during the period to but excluding the date two Business Days after such
request, the Federal Funds Rate, and thereafter, the Base Rate plus two percent
----
(2%) per annum.
3.7 Computations of Interest and Fees.
---------------------------------
(a) Except for Base Rate Loans, on which interest shall be computed on
the basis of a 365 or 366 day year as the case may be, all computations of
interest and fees hereunder shall be made on the basis of the actual number
of days elapsed over a year of 360 days. Interest shall accrue from the
date a Loan is made until the date such Loan is
23
repaid or continued or converted pursuant to Section 2.4.
(b) It is the intent of the Lenders and the Borrower to conform to
and contract in strict compliance with applicable usury law from time to
time in effect. All agreements between the Lenders and the Borrower are
hereby limited by the provisions of this paragraph which shall override and
control all such agreements, whether now existing or hereafter arising and
whether written or oral. In no way, nor in any event or contingency
(including but not limited to prepayment or acceleration of the maturity of
any obligation), shall the interest taken, reserved, contracted for,
charged, or received under this Credit Agreement, under the Notes or
otherwise, exceed the maximum nonusurious amount permissible under
applicable law. If, from any possible construction of any of the Credit
Documents or any other document, interest would otherwise be payable in
excess of the maximum nonusurious amount, any such construction shall be
subject to the provisions of this paragraph and interest owing pursuant to
such documents shall be automatically reduced to the maximum nonusurious
amount permitted under applicable law, without the necessity of execution
of any amendment or new document. If any Lender shall ever receive anything
of value which is characterized as interest on the Loans under applicable
law and which would, apart from this provision, be in excess of the maximum
lawful amount, an amount equal to the amount which would have been
excessive interest shall, without penalty, be applied to the reduction of
the principal amount owing on the Loans and not to the payment of interest,
or refunded to the Borrower or the other payor thereof if and to the extent
such amount which would have been excessive exceeds such unpaid principal
amount of the Loans. The right to demand payment of the Loans or any other
indebtedness evidenced by any of the Credit Documents does not include the
right to receive any interest which has not otherwise accrued on the date
of such demand, and the Lenders do not intend to charge or receive any
unearned interest in the event of such demand. All interest paid or agreed
to be paid to the Lenders with respect to the Loans shall, to the extent
permitted by applicable law, be amortized, prorated, allocated, and spread
throughout the full stated term (including any renewal or extension) of the
Loans so that the amount of interest on account of such indebtedness does
not exceed the maximum nonusurious amount permitted by applicable law.
3.8 Sharing of Payments.
-------------------
Each Lender agrees that, in the event that any Lender shall obtain payment
in respect of any Loan or any other obligation owing to such Lender under this
Credit Agreement through the exercise of a right of set-off, banker's lien,
counterclaim or otherwise (including, but not limited to, pursuant to the
Bankruptcy Code) in excess of its pro rata share as provided for in this Credit
Agreement, such Lender shall promptly purchase from the other Lenders a
participation in such Loans and other obligations, in such amounts and with such
other adjustments from time to time, as shall be equitable in order that all
Lenders share such payment in accordance with their respective ratable shares as
provided for in this Credit Agreement. Each Lender further agrees that if a
payment to a Lender (which is obtained by such Lender through the exercise of a
right of set-off, banker's lien, counterclaim or otherwise) shall be rescinded
or must otherwise be restored, each Lender which shall have shared the benefit
of such payment shall, by repurchase of a participation
24
theretofore sold, return its share of that benefit to each Lender whose payment
shall have been rescinded or otherwise restored. The Borrower agrees that any
Lender so purchasing such a participation may, to the fullest extent permitted
by law, exercise all rights of payment, including set-off, banker's lien or
counterclaim, with respect to such participation as fully as if such Lender were
a holder of such Loan or other obligation in the amount of such participation.
Except as otherwise expressly provided in this Credit Agreement, if any Lender
shall fail to remit to the Administrative Agent or any other Lender an amount
payable by such Lender to the Administrative Agent or such other Lender pursuant
to this Credit Agreement on the date when such amount is due, such payments
shall accrue interest thereon, for each day from the date such amount is due
until the day such amount is paid to the Administrative Agent or such other
Lender, at a rate per annum equal to the Federal Funds Rate. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 3.8 applies, such Lender
shall, to the extent practicable, exercise its rights in respect of such secured
claim in a manner consistent with the rights of the Lenders under this Section
3.8 to share in the benefits of any recovery on such secured claim.
3.9 Evidence of Debt.
----------------
(a) Each Lender shall maintain an account or accounts evidencing each
Loan made by such Lender to the Borrower from time to time, including the
amounts of principal and interest payable and paid to such Lender from time
to time under this Credit Agreement. Each Lender will make reasonable
efforts to maintain the accuracy of its account or accounts and to promptly
update its account or accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain the Register pursuant to
Section 11.3(c), and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount, type and
Interest Period of each such Loan hereunder, (ii) the amount of any
principal or interest due and payable or to become due and payable to each
Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder from or for the account of the Borrower and
each Lender's share thereof. The Administrative Agent will make reasonable
efforts to maintain the accuracy of the subaccounts referred to in the
preceding sentence and to promptly update such subaccounts from time to
time, as necessary.
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (b) of this Section 3.9 (and, if
consistent with the entries of the Administrative Agent, subsection (a))
shall be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
-------- -------
failure of any Lender or the Administrative Agent to maintain any such
account, such Register or such subaccount, as applicable, or any error
therein, shall not in any manner affect the obligation of the Borrower to
repay the Loans made by such Lender in accordance with the terms hereof.
25
SECTION 4.
ADDITIONAL PROVISIONS REGARDING LOANS
4.1 Eurodollar Loan Provisions.
--------------------------
(a) Unavailability. In the event that the Administrative Agent shall
--------------
have determined in good faith (i) that U.S. dollar deposits in the
principal amounts requested with respect to a Eurodollar Loan are not
generally available in the London interbank Eurodollar market or (ii) that
reasonable means do not exist for ascertaining the Eurodollar Rate, the
Administrative Agent shall, as soon as practicable thereafter, give notice
of such determination to the Borrower and the Lenders. In the event of any
such determination under clauses (i) or (ii) above, until the
Administrative Agent shall have advised the Borrower and the Lenders that
the circumstances giving rise to such notice no longer exist, (A) any
request by the Borrower for Eurodollar Loans shall be deemed to be a
request for Base Rate Loans, (B) any request by the Borrower for conversion
into or continuation of Eurodollar Loans shall be deemed to be a request
for conversion into or continuation of Base Rate Loans and (C) any Loans
that were to be converted or continued as Eurodollar Loans on the first day
of an Interest Period shall be converted to or continued as Base Rate
Loans.
(b) Change in Legality.
------------------
(i) Notwithstanding any other provision herein, if any change,
after the date hereof, in any law, governmental rule, regulation,
guideline or order (including the introduction of any new law,
governmental rule, regulation, guideline or order) or in the
interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof shall make
it unlawful for any Lender to make or maintain any Eurodollar Loan or
to give effect to its obligations as contemplated hereby with respect
to any Eurodollar Loan, then, by written notice to the Borrower and to
the Administrative Agent, such Lender may:
(A) declare that Eurodollar Loans, and conversions to or
continuations of Eurodollar Loans, will not thereafter be made by
such Lender hereunder, whereupon any request by the Borrower for,
or for conversion into or continuation of, Eurodollar Loans
shall, as to such Lender only, be deemed a request for, or for
conversion into or continuation of, Base Rate Loans, unless such
declaration shall be subsequently withdrawn; and
(B) require that all outstanding Eurodollar Loans made by it
be converted to Base Rate Loans in which event all such
Eurodollar Loans shall be automatically converted to Base Rate
Loans.
In the event any Lender shall exercise its rights under clause (A) or
(B) above, all payments and prepayments of principal which would otherwise
have been applied to repay
26
the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay
the Base Rate Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurodollar Loans.
(c) Requirements of Law. If at any time a Lender shall incur
-------------------
increased costs or reductions in the amounts received or receivable
hereunder with respect to the making, the commitment to make or the
maintaining of any Eurodollar Loan because of (i) any change after the date
hereof, in any law, governmental rule, regulation, guideline or order
(including the introduction of any new law, governmental rule, regulation,
guideline or order) or in the interpretation or administration thereof by
any Governmental Authority charged with the interpretation or
administration thereof, including, without limitation, the imposition,
modification or deemed applicability of any reserves, deposits or similar
requirements (such as, for example, but not limited to, a change in
official reserve requirements, but, in all events, excluding reserves
required under Regulation D to the extent included in the computation of
the Adjusted Eurodollar Rate) or (ii) other circumstances affecting the
London interbank Eurodollar market; then (A) the Lender shall promptly
notify the Administrative Agent and the Borrower and shall designate a
different lending office of such Lender if such designation will avoid or
reduce the amount of such increased costs, or reductions in amounts
receivable and such designation will not, in such Lender's sole discretion,
be otherwise disadvantageous to such Lender and (B) the Borrower shall
promptly pay to such Lender such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or
otherwise as such Lender may determine in its sole discretion) as may be
required to compensate such Lender for such increased costs or reductions
in amounts receivable hereunder.
Each determination and calculation made by a Lender under this Section 4.1
shall, absent manifest error, be binding and conclusive on the parties hereto.
Any conversions of Eurodollar Loans made pursuant to this Section 4.1 shall
subject the Borrower to the payments required by Section 4.3. This Section
shall survive termination of this Credit Agreement and the other Credit
Documents and the payment of the Loans and all other amounts payable hereunder.
4.2 Capital Adequacy.
----------------
If any Lender has determined in good faith that the adoption or
effectiveness, after the date hereof, of any applicable law, rule or regulation
regarding capital adequacy, or any change therein (after the date hereof), or
any change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Lender (or its parent corporation)
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Lender's (or
parent corporation's) capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender (or its parent
corporation) could have achieved but for such adoption, effectiveness, change or
compliance (taking into consideration such Lender's (or parent corporation's)
policies with respect to capital adequacy), then, upon notice from such Lender,
the Borrower shall promptly pay to such Lender such additional amount or amounts
as
27
will compensate such Lender for such reduction. Each determination by any
such Lender of amounts owing under this Section 4.2 shall, absent manifest
error, be conclusive and binding on the parties hereto. This Section shall
survive termination of this Credit Agreement and the other Credit Documents and
the payment of the Loans and all other amounts payable hereunder.
4.3 Compensation.
------------
The Borrower promises to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur as a
consequence of (a) default by the Borrower in the making of a borrowing of a
Competitive Bid Loan or in the making of a borrowing of, conversion into or
continuation of a Eurodollar Loan after the Borrower has given a notice
requesting the same in accordance with the provisions of this Credit Agreement,
(b) default by the Borrower in making any prepayment of a Eurodollar Loan or a
Competitive Bid Loan after the Borrower has given a notice thereof in accordance
with the provisions of this Credit Agreement, (c) the making of a prepayment of
a Eurodollar Loan or a Competitive Bid Loan on a day which is not the last day
of an Interest Period with respect thereto and (d) the payment, continuation or
conversion of a Eurodollar Loan or a Competitive Bid Loan on a day which is not
the last day of the Interest Period applicable thereto or the failure to repay a
Eurodollar Loan when required by the terms of this Credit Agreement. Each
determination by any such Lender of amounts owing under this Section 4.3 shall,
absent manifest error, be conclusive and binding on the parties hereto. This
Section shall survive the termination of this Credit Agreement and the other
Credit Documents and the payment of the Loans and all other amounts payable
hereunder.
4.4 Taxes.
-----
(a) Except as provided below in this Section 4.4, all payments made by
the Borrower under this Credit Agreement and any Notes shall be made free
and clear of, and without deduction or withholding for or on account of,
any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any court, or
governmental body, agency or other official, excluding taxes measured by or
imposed upon the net income of any Lender or its applicable lending office,
or any branch or affiliate thereof, and all franchise taxes, branch taxes,
taxes on doing business or taxes on the capital or net worth of any Lender
or its applicable lending office, or any branch or affiliate thereof, in
each case imposed in lieu of net income taxes: (i) by the jurisdiction
under the laws of which such Lender, applicable lending office, branch or
affiliate is organized or is located, or in which its principal executive
office is located, or any nation within which such jurisdiction is located
or any political subdivision thereof; or (ii) by reason of any connection
between the jurisdiction imposing such tax and such Lender, applicable
lending office, branch or affiliate other than a connection arising solely
from such Lender having executed, delivered or performed its obligations,
or received payment under or enforced, this Credit Agreement or any Notes.
If any such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings ("Non-Excluded Taxes") are required to be
-------------------
withheld from any amounts payable to an Administrative
28
Agent or any Lender hereunder or under any Notes, (A) the amounts so
payable to the Administrative Agent or such Lender shall be increased to
the extent necessary to yield to the Administrative Agent or such Lender
(after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Credit Agreement and any Notes, provided, however, that the Borrower shall
-----------------
be entitled to deduct and withhold any Non- Excluded Taxes and shall not be
required to increase any such amounts payable to any Lender that is not
organized under the laws of the United States of America or a state thereof
if such Lender fails to comply with the requirements of paragraph (b) of
this Section 4.4 whenever any Non-Excluded Taxes are payable by the
Borrower, and (B) as promptly as possible after requested, the Borrower
shall send to the Administrative Agent for its own account or for the
account of such Lender, as the case may be, a certified copy of an original
official receipt received by the Borrower showing payment thereof. If the
Borrower fails to pay any Non-Excluded Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent the required
receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and any Lender for any incremental Non-
Excluded Taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. The
agreements in this Section 4.4 shall survive the termination of this Credit
Agreement and the payment of the Loans and all other amounts payable
hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(i) (A) on or before the date of any payment by the
Borrower under this Credit Agreement or the Notes to such Lender,
deliver to the Borrower and the Administrative Agent (x) two duly
completed copies of United States Internal Revenue Service Form
1001 or 4224, or successor applicable form, as the case may be,
certifying that it is entitled to receive payments under this
Credit Agreement and any Notes without deduction or withholding
of any United States federal income taxes and (y) an Internal
Revenue Service Form W-8 or W-9, or successor applicable form, as
the case may be, certifying that it is entitled to an exemption
from United States backup withholding tax;
(B) deliver to the Borrower and the Administrative
Agent two further copies of any such form or certification on or
before the date that any such form or certification expires or
becomes obsolete and after the occurrence of any event requiring
a change in the most recent form previously delivered by it to
the Borrower; and
(C) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be
requested by the Borrower or the Administrative Agent; or
29
(ii) in the case of any such Lender that is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (A)
represent to the Borrower (for the benefit of the Borrower and the
Administrative Agent) that it is not a bank within the meaning of
Section 881 (c)(3)(A) of the Internal Revenue Code, (B) agree to
furnish to the Borrower, on or before the date of any payment by the
Borrower, with a copy to the Administrative Agent, two accurate and
complete original signed copies of Internal Revenue Service Form W-8,
or successor applicable form certifying to such Lender's legal
entitlement at the date of such certificate to an exemption from U.S.
withholding tax under the provisions of Section 881(c) of the Internal
Revenue Code with respect to payments to be made under this Credit
Agreement and any Notes (and to deliver to the Borrower and the
Administrative Agent two further copies of such form on or before the
date it expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recently provided form and, if
necessary, obtain any extensions of time reasonably requested by the
Borrower or the Administrative Agent for filing and completing such
forms), and (C) agree, to the extent legally entitled to do so, upon
reasonable request by the Borrower, to provide to the Borrower (for
the benefit of the Borrower and the Administrative Agent) such other
forms as may be reasonably required in order to establish the legal
entitlement of such Lender to an exemption from withholding with
respect to payments under this Credit Agreement and any Notes.
Notwithstanding the above, if any change in treaty, law or
regulation has occurred after the date such Person becomes a Lender
hereunder which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such form
with respect to it and such Lender so advises the Borrower and the
Administrative Agent, then such Lender shall be exempt from such
requirements. Each Person that shall become a Lender or a participant
of a Lender pursuant to Section 11.3 shall, upon the effectiveness of
the related transfer, be required to provide all of the forms,
certifications and statements required pursuant to this subsection
(b); provided that in the case of a participant of a Lender, the
--------
obligations of such participant of a Lender pursuant to this
subsection (b) shall be determined as if the participant of a Lender
were a Lender except that such participant of a Lender shall furnish
all such required forms, certifications and statements to the Lender
from which the related participation shall have been purchased.
SECTION 5.
CONDITIONS PRECEDENT
5.1 Closing Conditions.
------------------
The obligation of the Lenders to enter into this Credit Agreement is
subject to satisfaction
30
(or waiver) of the following conditions:
(a) Executed Credit Documents. Receipt by the Administrative Agent of
-------------------------
duly executed copies of (i) this Credit Agreement, (ii) the Notes and (iii)
all other Credit Documents, each in form and substance acceptable to the
Lenders.
(b) Corporate Documents. Receipt by the Administrative Agent of the
-------------------
following:
(i) Charter Documents. Copies of the articles of incorporation
-----------------
or other charter documents of the Borrower certified to be true and
complete as of a recent date by the appropriate Governmental
Authorities of the states or other jurisdictions of its incorporation
and certified by a secretary or assistant secretary of the Borrower to
be true and correct as of the Closing Date.
(ii) Bylaws. A copy of the bylaws of the Borrower certified by
------
a secretary or assistant secretary of the Borrower to be true and
correct as of the Closing Date.
(iii) Resolutions. Copies of resolutions of the Board of
-----------
Directors of the Borrower approving and adopting the Credit Documents
to which it is a party, the transactions contemplated therein and
authorizing execution and delivery thereof, certified by a secretary
or assistant secretary of the Borrower to be true and correct and in
full force and effect as of the Closing Date.
(iv) Good Standing. Copies of certificates of good standing,
-------------
existence or its equivalent with respect to the Borrower certified as
of a recent date by the appropriate Governmental Authorities of the
states or other jurisdictions of incorporation and each other
jurisdiction in which the failure to so qualify and be in good
standing would have a Material Adverse Effect.
(v) Incumbency. An incumbency certificate of the Borrower
----------
certified by a secretary or assistant secretary of the Borrower to be
true and correct as of the Closing Date.
(c) Opinion of Counsel. Receipt by the Administrative Agent of an
------------------
opinion, or opinions, from legal counsel to the Borrower addressed to the
Administrative Agent on behalf of the Lenders and dated as of the Effective
Date, in each case satisfactory in form and substance to the Administrative
Agent.
(d) Financial Statements. Receipt by the Lenders of the consolidated
--------------------
audited financial statements of the Borrower and its Subsidiaries dated as
of September 30, 1998 and September 30, 1999, and the unaudited financial
statements for the quarters ending December 31, 1999 and March 31, 2000,
including balance sheets and income and cash flow statements, in each case
audited (except for the quarterly financial statement) by
31
independent public accountants of recognized standing and prepared in
accordance with GAAP.
(e) Fees and Expenses. Payment by the Borrower of all fees and
-----------------
expenses owed by it to the Lenders and the Administrative Agent, including,
without limitation, payment to the Administrative Agent of the fees set
forth in the Fee Letter.
(f) Material Adverse Effect. No event or condition shall have
-----------------------
occurred since March 31, 2000 that has had or would be reasonably expected
to have a Material Adverse Effect.
(g) Officer's Certificates. The Administrative Agent shall have
----------------------
received a certificate or certificates executed by a Financial Officer of
the Borrower as of the Effective Date stating that (i) no action, suit,
investigation or legal, equitable, arbitration or administrative proceeding
is pending or, to such officer's knowledge, threatened in any court or
before any arbitrator or Governmental Authority that would have or be
reasonably expected to have a Material Adverse Effect, (ii) the financial
statements and information delivered to the Administrative Agent on or
before the Effective Date were prepared in good faith and in accordance
with GAAP and (iii) immediately after giving effect to this Credit
Agreement, the other Credit Documents and all the transactions contemplated
herein and therein to occur on such date, (A) no Default or Event of
Default exists, (B) all representations and warranties contained herein and
in the other Credit Documents are true and correct in all material respects
on and as of the date made and (C) the Borrower is in compliance with the
financial covenant set forth in Section 7.2.
(h) Payment of Existing Debt. Receipt by the Administrative Agent of
------------------------
evidence that that certain Credit Agreement, dated as of August 6, 1999,
among the Borrower, the Administrative Agent and the lenders party thereto
has been terminated and all amounts owing thereunder have been paid in
full.
(i) Other. Receipt by the Lenders of such other documents,
-----
instruments, agreements or information as reasonably requested by any
Lender.
5.2 Conditions to Loans.
-------------------
In addition to the conditions precedent stated elsewhere herein, the
Lenders shall not be obligated to make new Loans unless:
(a) Request. The Borrower shall have timely delivered a duly executed
-------
and completed Notice of Borrowing or Competitive Bid Request, as
applicable, in conformance with all the terms and conditions of this Credit
Agreement.
(b) Representations and Warranties. The representations and
------------------------------
warranties made by the Borrower are true and correct in all material
respects at and as if made as of the date of the funding of the requested
Loans.
32
(c) No Default. No Default or Event of Default shall exist or be
----------
continuing either prior to or after giving effect thereto.
(d) Availability. Immediately after giving effect to the making of a
------------
Loan (and the application of the proceeds thereof) the sum of the amount of
Revolving Loans outstanding plus the amount of Competitive Bid Loans
outstanding shall not exceed the Revolving Loan Commitment.
The delivery of each Notice of Borrowing and each Competitive Bid Request shall
constitute a representation and warranty by the Borrower of the correctness of
the matters specified in subsections (b) through (d) above.
SECTION 6.
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to each Lender that:
6.1 Organization and Good Standing.
------------------------------
The Borrower (a) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdictions of its incorporation, (b) is
duly qualified and in good standing as a foreign corporation authorized to do
business in every jurisdiction where the failure to so qualify would have or
would reasonably be expected to have a Material Adverse Effect and (c) has the
requisite corporate power and authority to own its properties and to carry on
its business as now conducted and as proposed to be conducted.
6.2 Due Authorization.
-----------------
The Borrower (a) has the requisite corporate power and authority to
execute, deliver and perform this Credit Agreement and the other Credit
Documents and to incur the obligations herein and therein provided for and (b)
has been authorized by all necessary corporate action, to execute, deliver and
perform this Credit Agreement and the other Credit Documents.
6.3 No Conflicts.
------------
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by the Borrower will in any
material respect (a) violate or conflict with any provision of its articles of
incorporation or bylaws, (b) violate, contravene or conflict with any law
(including without limitation, the Public Utility Holding Company Act of 1935,
as amended), regulation (including without limitation, Regulation U, Regulation
X or any regulation promulgated by the Federal Energy Regulatory Commission),
order, writ, judgment, injunction, decree or permit
33
applicable to it, (c) violate, contravene or conflict with contractual
provisions of, or cause an event of default under, any indenture, loan
agreement, mortgage, deed of trust, contract or other agreement or instrument to
which it is a party or by which it or its properties may be bound, or (d) result
in or require the creation of any Lien upon or with respect to its properties.
6.4 Consents.
--------
No consent, approval, authorization or order of, or filing, registration or
qualification with, any court or Governmental Authority or third party is
required in connection with the execution, delivery or performance of this
Credit Agreement or any of the other Credit Documents.
6.5 Enforceable Obligations.
-----------------------
This Credit Agreement and the other Credit Documents have been duly
executed and delivered and constitute legal, valid and binding obligations of
the Borrower enforceable against the Borrower in accordance with their
respective terms, except as may be limited by bankruptcy or insolvency laws or
similar laws affecting creditors' rights generally or by general equitable
principles.
6.6 Financial Condition.
-------------------
(a) The financial statements delivered to the Lenders pursuant to
Section 5.1(d) and pursuant to Section 7.1(a) and (b): (i) have been
prepared in accordance with GAAP (subject to the provisions of Section 1.3)
and (ii) present fairly in all material respects the financial condition,
results of operations, and cash flows of the Borrower and its Subsidiaries
as of such date and for such periods.
(b) Other than the Missouri Property Acquisition, since March 31,
2000, there has been no sale, transfer or other disposition by the Borrower
of any material part of the business or property of the Borrower, and no
purchase or other acquisition by the Borrower of any business or property
(including any Capital Stock of any other Person) material in relation to
the financial condition of the Borrower (other than the Acquisition), in
each case, which, is not (i) reflected in the most recent financial
statements delivered to the Lenders pursuant to Section 7.1 or in the notes
thereto or (ii) otherwise permitted by the terms of this Credit Agreement
and communicated to the Administrative Agent.
6.7 No Material Change.
------------------
Since March 31, 2000, there has been no development or event relating to or
affecting the Borrower or any of its Subsidiaries that has had or would be
reasonably expected to have a Material Adverse Effect, it being understood that
the consummation of the Acquisition, in and of itself, shall not constitute a
Material Adverse Effect.
34
6.8 No Default.
----------
No Default or Event of Default presently exists and is continuing.
6.9 Litigation.
----------
There are no actions, suits, investigations or legal, equitable,
arbitration or administrative proceedings pending or, to the knowledge of the
Borrower, threatened against the Borrower, any of its Subsidiaries or any of its
properties which could have or be reasonably expected to have a Material Adverse
Affect.
6.10 Taxes.
-----
The Borrower and its Subsidiaries have filed, or caused to be filed, all
tax returns (federal, state, local and foreign) required to be filed and paid
all amounts of taxes shown thereon to be due (including interest and penalties)
and has paid all other taxes, fees, assessments and other governmental charges
(including mortgage recording taxes, documentary stamp taxes and intangibles
taxes) owing by it, except for such taxes which are not yet delinquent or that
are being contested in good faith and by proper proceedings, and against which
adequate reserves are being maintained in accordance with GAAP.
6.11 Compliance with Law.
-------------------
The Borrower and each of its Subsidiaries is in compliance with all laws,
rules, regulations, orders and decrees applicable to it or to its properties,
except where the failure to be in compliance would not have or would not
reasonably be expected to have a Material Adverse Effect.
6.12 Material Agreements.
-------------------
Neither the Borrower nor any of its Subsidiaries is in default in any
respect under any contract, lease, loan agreement, indenture, mortgage, security
agreement or other agreement or obligation to which it is a party or by which
any of its properties is bound which default has had or would be reasonably
expected to have a Material Adverse Effect.
6.13 ERISA.
-----
Except as would not result or be reasonably expected to result in a
Material Adverse Effect:
(a) During the five-year period prior to the date on which this
representation is made or deemed made: (i) no Termination Event has
occurred, and, to the best knowledge of the Borrower, no event or condition
has occurred or exists as a result of which any Termination Event is
reasonably expected to occur, with respect to any Plan; (ii) no
"accumulated funding deficiency," as such term is defined in Section 302 of
ERISA and Section 412 of the Code, whether or not waived, has occurred with
respect to any Plan;
35
(iii) each Plan has been maintained, operated, and funded in material
compliance with its own terms and in material compliance with the
provisions of ERISA, the Code, and any other applicable federal or state
laws; and (iv) no Lien in favor or the PBGC or a Plan has arisen or is
reasonably expected to arise on account of any Plan.
(b) No liability has been or is reasonably expected by the Borrower to
be incurred under Sections 4062, 4063 or 4064 of ERISA with respect to any
Single Employer Plan by the Borrower or any of its Subsidiaries which has
or would reasonably be expected to have a Material Adverse Effect.
(c) The actuarial present value of all "benefit liabilities" under
each Single Employer Plan (determined within the meaning of Section
401(a)(2) of the Code, utilizing the actuarial assumptions used to fund
such Plans), whether or not vested, did not, as of the last annual
valuation date prior to the date on which this representation is made or
deemed made, exceed the current value of the assets of such Plan allocable
to such accrued liabilities, except as disclosed in the Borrower's
financial statements.
(d) Neither the Borrower nor any ERISA Affiliate has incurred, or, to
the best knowledge of the Borrower, is reasonably expected to incur, any
withdrawal liability under ERISA to any Multiemployer Plan or Multiple
Employer Plan. Neither the Borrower nor any ERISA Affiliate has received
any notification that any Multiemployer Plan is in reorganization (within
the meaning of Section 4241 of ERISA), is insolvent (within the meaning of
Section 4245 of ERISA), or has been terminated (within the meaning of Title
IV of ERISA), and no Multiemployer Plan is, to the best knowledge of the
Borrower, reasonably expected to be in reorganization, insolvent, or
terminated.
(e) No prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary responsibility
has occurred with respect to a Plan which has subjected or is reasonably
likely to subject the Borrower or any ERISA Affiliate to any liability
under Sections 406, 407, 409, 502(i), or 502(l) of ERISA or Section 4975 of
the Code, or under any agreement or other instrument pursuant to which the
Borrower or any ERISA Affiliate has agreed or is required to indemnify any
person against any such liability.
(f) The present value (determined using actuarial and other
assumptions which are reasonable with respect to the benefits provided and
the employees participating) of the liability of the Borrower and each
ERISA Affiliate for post-retirement welfare benefits to be provided to
their current and former employees under Plans which are welfare benefit
plans (as defined in Section 3(1) of ERISA), net of all assets under all
such Plans allocable to such benefits, are reflected on the financial
statements referenced in Section 7.1 in accordance with FASB 106.
(g) Each Plan which is a welfare plan (as defined in Section 3(1) of
ERISA) to which Sections 601-609 of ERISA and Section 4980B of the Code
apply has been
36
administered in compliance in all material respects with such sections.
6.14 Use of Proceeds.
---------------
The proceeds of the Loans hereunder will be used solely for the purposes
specified in Section 7.8. None of such proceeds will be used for the
acquisition of another Person unless the board of directors (or other comparable
governing body) or stockholders, as appropriate, of such Person has approved
such acquisition.
6.15 Government Regulation.
---------------------
(a) No proceeds of the Loans will be used, directly or indirectly,
for the purpose of purchasing or carrying any "margin stock" within the
meaning of Regulation U, or for the purpose of purchasing or carrying or
trading in any securities. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each
Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in Regulation U. No indebtedness
being reduced or retired out of the proceeds of the Loans was or will be
incurred for the purpose of purchasing or carrying any margin stock within
the meaning of Regulation U or any "margin security" within the meaning of
Regulation T. "Margin stock" within the meaning of Regulation U does not
constitute more than 25% of the value of the consolidated assets of the
Borrower and its Subsidiaries. None of the transactions contemplated by the
Credit Documents (including, without limitation, the direct or indirect use
of the proceeds of the Loans) will violate or result in a violation of the
Securities Act or the Exchange Act.
(b) Neither the Borrower nor any of its Subsidiaries is (i) an
"investment company" registered or required to be registered under the
Investment Company Act of 1940, as amended, and is not controlled by an
"investment company", or (ii) a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company"
or of a "subsidiary" of a "holding company", within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
(c) No director, executive officer or principal shareholder of the
Borrower or any of its Subsidiaries is a director, executive officer or
principal shareholder of any Lender. For the purposes hereof the terms
"director", "executive officer" and "principal shareholder" (when used with
reference to any Lender) have the respective meanings assigned thereto in
Regulation O.
6.16 Disclosure.
----------
Neither this Credit Agreement nor any financial statements delivered to the
Lenders nor any other document, certificate or statement furnished to the
Lenders by or on behalf of the Borrower in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein or
37
herein, taken as a whole, not misleading.
6.17 Environmental Matters.
---------------------
Except as would not result or be reasonably expected to result in a
Material Adverse Effect: (a) each of the properties of the Borrower and its
Subsidiaries (the "Properties") and all operations at the Properties are in
compliance in all material respects with all applicable Environmental Laws, (b)
there is no violation of any Environmental Law with respect to the Properties or
the businesses operated by the Borrower or its Subsidiaries (the "Businesses"),
and (c) there are no conditions relating to the Businesses or Properties that
would reasonably be expected to give rise to a material liability under any
applicable Environmental Laws.
6.18 Insurance.
---------
The Borrower and its Subsidiaries maintain insurance with responsible and
reputable insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar business and owning
similar properties in the same general areas in which the Borrower and its
Subsidiaries operate.
6.19 Franchises, Licenses, Etc.
-------------------------
The Borrower and its Subsidiaries possess all material franchises,
certificates, licenses, permits and other authorizations necessary for the
operation of their respective businesses.
6.20 Secured Indebtedness.
--------------------
All of the secured indebtedness of the Borrower is set forth on Schedule
--------
6.20 or permitted by Section 8.6.
----
6.21 Subsidiaries.
------------
All Subsidiaries of the Borrower and the designation as to which such
Subsidiaries are Material Subsidiaries are set forth on Schedule 6.21. Schedule
------------- --------
6.21 may be updated from time to time by the Borrower.
----
SECTION 7.
AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Loans, together with interest, fees and
other obligations hereunder, have been paid in full and the Commitments shall
have terminated:
38
7.1 Information Covenants.
---------------------
The Borrower will furnish, or cause to be furnished, to the Administrative
Agent:
(a) Annual Financial Statements. As soon as available, and in any
---------------------------
event within 120 days after the close of each fiscal year of the Borrower,
a consolidated balance sheet and income statement of the Borrower and its
Subsidiaries, as of the end of such fiscal year, together with retained
earnings and a consolidated statement of cash flows for such fiscal year
setting forth in comparative form figures for the preceding fiscal year,
all such financial information described above to be in reasonable form and
detail and audited by independent certified public accountants of
recognized national standing reasonably acceptable to the Administrative
Agent and whose opinion shall be furnished to the Administrative Agent,
shall be to the effect that such financial statements have been prepared in
accordance with GAAP (except for changes with which such accountants
concur) and shall not be limited as to the scope of the audit or qualified
in any respect.
(b) Quarterly Financial Statements. As soon as available, and in any
------------------------------
event within 65 days after the close of each fiscal quarter of the Borrower
(other than the fourth fiscal quarter, in which case 120 days after the end
thereof) a consolidated balance sheet and income statement of the Borrower
and its Subsidiaries, as of the end of such fiscal quarter, together with a
related consolidated statement of cash flows for such fiscal quarter in
each case setting forth in comparative form figures for the corresponding
period of the preceding fiscal year, all such financial information
described above to be in reasonable form and detail and reasonably
acceptable to the Administrative Agent, and accompanied by a certificate of
a Financial Officer of the Borrower to the effect that such quarterly
financial statements fairly present in all material respects the financial
condition of the Borrower and have been prepared in accordance with GAAP,
subject to changes resulting from audit and normal year-end audit
adjustments.
(c) Officer's Certificate. At the time of delivery of the financial
---------------------
statements provided for in Sections 7.1(a) and 7.1(b) above, a certificate
of a Financial Officer of the Borrower, substantially in the form of
Exhibit 7.1(c), (i) demonstrating compliance with Section 7.2 by
--------------
calculation thereof as of the end of each such fiscal period and (ii)
stating that no Default or Event of Default exists, or if any Default or
Event of Default does exist, specifying the nature and extent thereof and
what action the Borrower proposes to take with respect thereto.
(d) Reports. Promptly upon transmission or receipt thereof, copies of
-------
any filings and registrations with, and reports to or from, any
Governmental Authority, including, without limitation, the Securities and
Exchange Commission or any successor agency and any utility regulatory
body.
(e) Notices. Upon the Borrower obtaining knowledge thereof, the
-------
Borrower will give written notice to the Administrative Agent immediately
of (i) the occurrence of a Default or Event of Default, specifying the
nature and existence thereof and what action the
39
Borrower proposes to take with respect thereto and (ii) the occurrence of
any of the following with respect to the Borrower or any Subsidiary: (A)
the pendency or commencement of any litigation, arbitration or governmental
proceeding against the Borrower or such Subsidiary which, if adversely
determined, would have or would be reasonably expected to have a Material
Adverse Effect or (B) the institution of any proceedings against the
Borrower or such Subsidiary with respect to, or the receipt of notice by
such Person of potential liability or responsibility for violation or
alleged violation of any federal, state or local law, rule or regulation
(including, without limitation, any Environmental Law), the violation of
which would have or would be reasonably expected to have a Material Adverse
Effect.
(f) ERISA. Upon the Borrower or any ERISA Affiliate obtaining
-----
knowledge thereof, the Borrower will give written notice to the
Administrative Agent and each of the Lenders promptly (and in any event
within five Business Days) of: (i) any event or condition, including, but
not limited to, any Reportable Event, that constitutes, or would be
reasonably expected to lead to, a Termination Event; (ii) any communication
from the PBGC stating its intention to terminate any Plan or to have a
trustee appointed to administer any Plan together with a statement of the
amount of liability, if any, incurred or expected to be incurred by the
Borrower or any Subsidiary in connection therewith; (iii) with respect to
any Multiemployer Plan, the receipt of notice as prescribed in ERISA or
otherwise of any withdrawal liability assessed against the Borrower or any
ERISA Affiliate, or of a determination that any Multiemployer Plan is in
reorganization or insolvent (both within the meaning of Title IV of ERISA);
(iv) the failure to make full payment on or before the due date (including
extensions) thereof of all amounts which the Borrower or any of its
Subsidiaries or ERISA Affiliates is required to contribute to each Plan
pursuant to its terms and as required to meet the minimum funding standard
set forth in ERISA and the Code with respect thereto; or (v) any change in
the funding status of any Plan that would have or would be reasonably
expected to have a Material Adverse Effect; together, with a description of
any such event or condition or a copy of any such notice and a statement by
a officer of the Borrower briefly setting forth the details regarding such
event, condition, or notice, and the action, if any, which has been or is
being taken or is proposed to be taken by the Borrower with respect
thereto. Promptly upon request, the Borrower shall furnish the
Administrative Agent and each of the Lenders with such additional
information concerning any Plan as may be reasonably requested, including,
but not limited to, copies of each annual report/return (Form 5500 series),
as well as all schedules and attachments thereto required to be filed with
the Department of Labor and/or the Internal Revenue Service pursuant to
ERISA and the Code, respectively, for each "plan year" (within the meaning
of Section 3(39) of ERISA).
(g) Other Information. With reasonable promptness upon any such
-----------------
request, such other information regarding the business, properties or
financial condition of the Borrower as the Administrative Agent or the
Required Lenders may reasonably request.
40
7.2 Debt to Capitalization Ratio.
----------------------------
At all times during the periods set forth below, the Debt to Capitalization
Ratio shall be less than or equal to the following:
(a) from the Effective Date to the date on which the Acquisition is
consummated, .70 to 1.0;
(b) if the Acquisition is consummated on or before May ___, 2001, from
the first Business Day following the date the Acquisition is consummated to
May ___, 2001, .75 to 1.0; and
(c) from May ___, 2001 and thereafter, .70 to 1.0.
7.3 Preservation of Existence, Franchises and Assets.
------------------------------------------------
The Borrower will, and will cause its Subsidiaries to, do all things
necessary to preserve and keep in full force and effect its existence, rights,
franchises and authority, except where failure to do so would not or would not
reasonably be expected to have a Material Adverse Effect. The Borrower will,
and will cause its Subsidiaries to, generally maintain its properties, real and
personal, in good condition, and the Borrower and its Subsidiaries shall not
waste or otherwise permit such properties to deteriorate, reasonable wear and
tear excepted, except where failure to do so would not or would not reasonably
be expected to have a Material Adverse Effect.
7.4 Books and Records.
-----------------
The Borrower will, and will cause its Subsidiaries to, keep complete and
accurate books and records of its transactions in accordance with good
accounting practices on the basis of GAAP (including the establishment and
maintenance of appropriate reserves).
7.5 Compliance with Law.
-------------------
The Borrower will, and will cause its Subsidiaries to, comply with, and
obtain all permits and licenses required by, all laws (including, without
limitation, all Environmental Laws and ERISA laws), rules, regulations and
orders, and all applicable restrictions imposed by all Governmental Authorities,
applicable to it and its property, if the failure to comply would have or would
be reasonably expected to have a Material Adverse Effect.
7.6 Payment of Taxes and Other Indebtedness.
---------------------------------------
The Borrower will, and will cause its Subsidiaries to, pay, settle or
discharge (a) all taxes, assessments and governmental charges or levies imposed
upon it, or upon its income or profits, or upon any of its properties, before
they shall become delinquent, (b) all lawful claims (including claims for labor,
materials and supplies) which, if unpaid, might give rise to a Lien upon any of
its
41
properties, and (c) all of its other indebtedness as it shall become due (to the
extent such repayment is not otherwise prohibited by this Credit Agreement);
provided, however, that the Borrower shall not be required to pay any such tax,
-------- -------
assessment, charge, levy, claim or indebtedness which is being contested in good
faith by appropriate action and as to which adequate reserves therefor, if
required, have been established in accordance with GAAP, unless the failure to
make any such payment (i) would give rise to an immediate right to foreclose or
collect on a Lien securing such amounts or (ii) would have or would reasonably
be expected to have a Material Adverse Effect.
7.7 Insurance.
---------
The Borrower will, and will cause its Subsidiaries to, at all times
maintain in full force and effect insurance (including worker's compensation
insurance, liability insurance, casualty insurance and business interruption
insurance) with responsible and reputable insurance companies in such amounts,
covering such risks and liabilities and with such deductibles or self-insurance
retentions as are in accordance with normal industry practice.
7.8 Use of Proceeds.
---------------
The proceeds of the Loans may be used solely (a) to provide credit support
for the Borrower's commercial paper program and (b) for working capital, capital
expenditures and other lawful corporate purposes of the Borrower.
7.9 Audits/Inspections.
------------------
Upon reasonable prior notice and during normal business hours, the Borrower
will permit representatives appointed by the Administrative Agent, including,
without limitation, independent accountants, agents, attorneys, and appraisers
to visit and inspect the Borrower's and its Subsidiaries' property, including
their books and records, their accounts receivable and inventory, the Borrower's
and its Subsidiaries' facilities and their other business assets, and to make
photocopies or photographs thereof and to write down and record any information
such representative obtains and shall permit the Administrative Agent or its
representatives to investigate and verify the accuracy of information provided
to the Lenders and to discuss all such matters with the officers, employees and
representatives of the Borrower and its Subsidiaries.
SECTION 8.
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Loans, together with interest, fees and
other obligations hereunder, have been paid in full and the Commitments shall
have terminated:
42
8.1 Nature of Business.
------------------
The Borrower will not materially alter the character of its business from
that conducted as of the Closing Date.
8.2 Consolidation and Merger.
------------------------
The Borrower will not (a) enter into any transaction of merger, or (b)
consolidate, liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution); provided that, so long as no Default or Event of Default shall
--------
exist or be caused thereby, a Person may be merged or consolidated with or into
the Borrower so long as the Borrower shall be the continuing or surviving
corporation.
8.3 Sale or Lease of Assets.
-----------------------
Within any twelve month period, the Borrower will not, nor will it permit
any Subsidiary to, convey, sell, lease, transfer or otherwise dispose of assets,
business or operations with a net book value in excess of 25% of Total Assets as
calculated as of the end of the most recent fiscal quarter.
8.4 Arm's-Length Transactions.
-------------------------
The Borrower will not, nor will it permits its Subsidiaries to, enter into
any transaction or series of transactions, whether or not in the ordinary course
of business, with any officer, director or Affiliate other than on terms and
conditions substantially as favorable as would be obtainable in a comparable
arm's-length transaction with a Person other than an officer, director or
Affiliate.
8.5 Fiscal Year; Organizational Documents.
-------------------------------------
The Borrower will not (a) change its fiscal year or (b) in any manner that
would reasonably be expected to materially adversely affect the rights of the
Lenders, change its organizational documents or its bylaws; it being understood
that the Borrower's shareholders may approve an amendment to the Borrower's
Articles of Incorporation to permit the issuance of Preferred Securities.
8.6 Liens.
-----
The Borrower will not, nor will it permit any of its Material Subsidiaries
to, contract, create, incur, assume or permit to exist any Lien with respect to
any of its property or assets of any kind (whether real or personal, tangible or
intangible), whether now owned or after acquired, except for the following: (a)
Liens securing Borrower Obligations, (b) Liens for taxes not yet due or Liens
for taxes being contested in good faith by appropriate action and for which
adequate reserves, if required, determined in accordance with GAAP have been
established (and as to which the property subject to any such Lien is not yet
subject to foreclosure, sale or loss on account thereof), (c) Liens in respect
of property imposed by law arising in the ordinary course of business such as
43
materialmen's, mechanics', warehousemen's, carrier's, landlords' and other
nonconsensual statutory Liens which are not yet due and payable, which have been
in existence less than 90 days or which are being contested in good faith by
appropriate action and for which adequate reserves, if required, determined in
accordance with GAAP have been established (and as to which the property subject
to any such Lien is not yet subject to foreclosure, sale or loss on account
thereof), (d) pledges or deposits made in the ordinary course of business to
secure payment of worker's compensation insurance, unemployment insurance,
pensions or social security programs, (e) Liens arising from good faith deposits
in connection with or to secure performance of tenders, bids, leases, government
contracts, performance and return-of-money bonds and other similar obligations
incurred in the ordinary course of business (other than obligations in respect
of the payment of borrowed money), (f) Liens arising from good faith deposits in
connection with or to secure performance of statutory obligations and surety and
appeal bonds, (g) easements, rights-of-way, restrictions (including zoning
restrictions), minor defects or irregularities in title and other similar
charges or encumbrances not, in any material respect, impairing the use of the
encumbered property for its intended purposes, (h) judgment Liens that would not
constitute an Event of Default, (i) Liens arising by virtue of any statutory or
common law provision relating to banker's liens, rights of setoff or similar
rights as to deposit accounts or other funds maintained with a creditor
depository institution, (j) any Lien on any assets securing indebtedness
incurred or assumed for the purpose of financing all or any part of the cost of
acquiring such assets; provided that such Lien attaches to such asset
concurrently with or within 90 days after the acquisition thereof, (k) any Lien
on any asset of any Person existing at the time such Person is merged or
consolidated with or into the Borrower or one of its Subsidiaries and not
created in contemplation of such event, (l) any Lien existing on any asset prior
to the acquisition thereof by the Borrower or one of its Subsidiaries and not
created in contemplation of such acquisition, (m) any Lien (whether such Lien
applies to current assets or after-acquired property, or both) on any assets of
the Borrower or such Material Subsidiary created pursuant to the 1957 Indenture
or the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇; provided that any Lien on any assets of the Borrower or
such Material Subsidiary that are specifically excluded as collateral under such
Indentures shall not be deemed to be a Permitted Lien hereunder, (n) any Lien
(whether such Lien applies to current assets or after-acquired property, or
both) on any Fixed Assets of the Borrower or such Material Subsidiaries created
or arising at any time pursuant to or under (i) Section 4.08 of each of the 1987
Note Purchase Agreements and the 1989 Note Purchase Agreement, (ii) Section 4.8
of each of the 1991 Note Purchase Agreement, the 1992 Note Purchase Agreement
and the 1994 Note Purchase Agreement or (iii) any similar provision utilizing
the same or a similar cash flow-to-debt test, contained in any other loan
agreement that the Borrower may enter into after the Effective Date, which
agreement grants a loan or extends credit to the Borrower with a maturity date
in excess of one year, (n) any Lien on the assets of the Borrower pursuant to
Section 803 of the 1998 Indenture or Section 803 of the 2000 Indenture, if
placed on the property of the Borrower on a pro rata basis only with other Liens
that may be placed on the properties of the Borrower in the future, (o) Liens on
Fixed Assets not otherwise permitted by this Credit Agreement securing
indebtedness in the aggregate (at the time such Liens are created) not in excess
of five percent (5%) of Consolidated Net Property, and (p) any extension,
renewal or replacement (or successive extensions, renewals or replacements), as
a whole or in part, of any Liens referred to in the foregoing clauses (a)
through (o), for amounts not exceeding the principal amount of the indebtedness
secured by the Lien so extended, renewed or replaced; provided that such
--------
extension, renewal or replacement Lien is limited to all or a part of the same
property or assets that were
44
covered by the Lien extended, renewed or replaced (plus improvements on such
property or assets).
SECTION 9.
EVENTS OF DEFAULT
9.1 Events of Default.
-----------------
An Event of Default shall exist upon the occurrence of any of the following
specified events (each an "Event of Default"):
----------------
(a) Payment. The Borrower shall default in the payment (i) when due
-------
of any principal of any of the Loans or (ii) within one Business Day of
when due of any interest on the Loans or of any fees or other amounts owing
hereunder, under any of the other Credit Documents or in connection
herewith.
(b) Representations. Any representation, warranty or statement made
---------------
or deemed to be made by the Borrower herein, in any of the other Credit
Documents, or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove untrue in any material
respect on the date as of which it was deemed to have been made.
(c) Covenants. The Borrower shall:
---------
(i) default in the due performance or observance of any term,
covenant or agreement contained in Sections 7.2, 7.3, 7.4, 7.5, 7.9 or
8.1 through 8.6 inclusive; or
(ii) default in the due performance or observance by it of any
term, covenant or agreement contained in Section 7.1 and such default
shall continue unremedied for a period of five Business Days after the
earlier of the Borrower becoming aware of such default or notice
thereof given by the Administrative Agent; or
(iii) default in the due performance or observance by it of any
term, covenant or agreement (other than those referred to in
subsections (a), (b), (c)(i), or (c)(ii) of this Section 9.1)
contained in this Credit Agreement or any other Credit Document and
such default shall continue unremedied for a period of at least 30
days after the earlier of the Borrower becoming aware of such default
or notice thereof given by the Administrative Agent.
(d) Credit Documents. The Borrower shall default in the due
----------------
performance or observance of any term, covenant or agreement in any of the
other Credit Documents and such default shall continue unremedied for a
period of at least 30 days after the earlier of the
45
Borrower becoming aware of such default or notice thereof given by the
Administrative Agent or (ii) any Credit Document shall fail to be in full
force and effect or the Borrower shall so assert or any Credit Document
shall fail to give the Administrative Agent and/or the Lenders the rights,
powers and privileges purported to be created thereby.
(e) Bankruptcy, etc. The occurrence of any of the following with
---------------
respect to the Borrower or any of its Material Subsidiaries: (i) a court or
governmental agency having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Borrower or any of its
Material Subsidiaries in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official of the Borrower or any of its Material Subsidiaries or
for any substantial part of its property or order the winding up or
liquidation of its affairs; or (ii) an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect is commenced against the Borrower or any of its Material
Subsidiaries and such petition remains unstayed and in effect for a period
of 60 consecutive days; or (iii) the Borrower or any of its Material
Subsidiaries shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under
any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of such Person or any substantial part of its property or make any
general assignment for the benefit of creditors; or (iv) the Borrower or
any of its Material Subsidiaries shall admit in writing its inability to
pay its debts generally as they become due or any action shall be taken by
such Person in furtherance of any of the aforesaid purposes.
(f) Defaults under Other Agreements. With respect to (x) any secured
-------------------------------
indebtedness of the Borrower or (y) any other indebtedness in excess of
$20,000,000 (other than indebtedness outstanding under this Credit
Agreement) of the Borrower (A) the Borrower shall (1) default in any
payment (beyond the applicable grace period with respect thereto, if any)
with respect to any such indebtedness, or (2) default (after giving effect
to any applicable grace period) in the observance or performance of any
covenant or agreement relating to such indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any
other event or condition shall occur or condition exist, the effect of
which default or other event or condition is to cause, or permit, the
holder of the holders of such indebtedness (or trustee or agent on behalf
of such holders) to cause (determined without regard to whether any notice
or lapse of time is required) any such indebtedness to become due prior to
its stated maturity; or (B) any such indebtedness shall be declared due and
payable, or required to be prepaid other than by a regularly scheduled
required prepayment prior to the stated maturity thereof; or (C) any such
indebtedness shall mature and remain unpaid.
(g) Judgments. One or more judgments, orders, or decrees shall be
---------
entered against the Borrower involving a liability of $20,000,000 or more,
in the aggregate, (to the extent not paid or covered by insurance provided
by a carrier who has acknowledged coverage) and such judgments, orders or
decrees shall continue unsatisfied, undischarged
46
and unstayed for a period ending on the first to occur of (i) the last day
on which such judgment, order or decree becomes final and unappealable and,
where applicable, with the status of a judicial lien or (ii) 60 days;
provided that if such judgment, order or decree provides for periodic
payments over time then the Borrower shall have a grace period of 30 days
with respect to each such periodic payment.
(h) ERISA. The occurrence of any of the following events or
-----
conditions if any of the same would be reasonably expected to result in a
liability of an amount greater than or equal to $20,000,000: (A) any
"accumulated funding deficiency," as such term is defined in Section 302 of
ERISA and Section 412 of the Code, whether or not waived, shall exist with
respect to any Plan, or any lien shall arise on the assets of the Borrower
or any ERISA Affiliate in favor of the PBGC or a Plan; (B) a Termination
Event shall occur with respect to a Single Employer Plan, which is, in the
reasonable opinion of the Administrative Agent, likely to result in the
termination of such Plan for purposes of Title IV of ERISA; (C) a
Termination Event shall occur with respect to a Multiemployer Plan or
Multiple Employer Plan, which is, in the reasonable opinion of the
Administrative Agent, likely to result in (i) the termination of such Plan
for purposes of Title IV of ERISA, or (ii) the Borrower or any ERISA
Affiliate incurring any liability in connection with a withdrawal from,
reorganization of (within the meaning of Section 4241 of ERISA), or
insolvency (within the meaning of Section 4245 of ERISA) of such Plan; or
(D) any prohibited transaction (within the meaning of Section 406 of ERISA
or Section 4975 of the Code) or breach of fiduciary responsibility shall
occur which would be reasonably expected to subject the Borrower or any
ERISA Affiliate to any liability under Sections 406, 409, 502(i), or 502(l)
of ERISA or Section 4975 of the Code, or under any agreement or other
instrument pursuant to which the Borrower or any ERISA Affiliate has agreed
or is required to indemnify any person against any such liability.
(i) Change of Control. The occurrence of any Change of Control.
-----------------
9.2 Acceleration; Remedies.
----------------------
Upon the occurrence and during the continuation of an Event of Default, the
Administrative Agent may, with the consent of the Required Lenders, and shall,
upon the request and direction of the Required Lenders, by written notice to the
Borrower take any of the following actions without prejudice to the rights of
the Administrative Agent or any Lender to enforce its claims against the
Borrower, except as otherwise specifically provided for herein:
(i) Termination of Commitments. Declare the Commitments terminated
--------------------------
whereupon the Commitments shall be immediately terminated.
(ii) Acceleration of Loans. Declare the unpaid amount of all Borrower
---------------------
Obligations to be due whereupon the same shall be immediately due and
payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower.
47
(iii) Enforcement of Rights. Enforce any and all rights and
---------------------
interests created and existing under the Credit Documents, including,
without limitation, all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(e) shall occur, then the Commitments shall automatically terminate and all
Loans, all accrued interest in respect thereof, all accrued and unpaid fees and
other indebtedness or obligations owing to the Lenders and the Administrative
Agent hereunder shall immediately become due and payable without the giving of
any notice or other action by the Administrative Agent or the Lenders.
Notwithstanding the fact that enforcement powers reside primarily with the
Administrative Agent, each Lender has, to the extent permitted by law, a
separate right of payment and shall be considered a separate "creditor" holding
a separate "claim" within the meaning of Section 101(5) of the Bankruptcy Code
or any other insolvency statute.
9.3 Allocation of Payments After Event of Default.
---------------------------------------------
Notwithstanding any other provisions of this Credit Agreement, after the
occurrence of an Event of Default, all amounts collected or received by the
Administrative Agent or any Lender on account of amounts outstanding under any
of the Credit Documents shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and
expenses (including without limitation reasonable attorneys' fees) of the
Administrative Agent or any of the Lenders in connection with enforcing the
rights of the Lenders under the Credit Documents, pro rata as set forth
below;
SECOND, to payment of any fees owed to the Administrative Agent, or
any Lender, pro rata as set forth below;
THIRD, to the payment of all accrued interest payable to the Lenders
hereunder, pro rata as set forth below;
FOURTH, to the payment of the outstanding principal amount of the
Loans, pro rata as set forth below;
FIFTH, to all other obligations which shall have become due and
payable under the Credit Documents and not repaid pursuant to clauses
"FIRST" through "FOURTH" above; and
SIXTH, to the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category and (b) each of the
48
Lenders shall receive an amount equal to its pro rata share (based on the
proportion that the then outstanding Loans held by such Lender bears to the
aggregate then outstanding Loans) of amounts available to be applied.
SECTION 10
AGENCY PROVISIONS
10.1 Appointment.
-----------
Each Lender hereby designates and appoints Bank of America, N.A. as agent
of such Lender to act as specified herein and the other Credit Documents, and
each such Lender hereby authorizes the Administrative Agent, as the agent for
such Lender, to take such action on its behalf under the provisions of this
Credit Agreement and the other Credit Documents and to exercise such powers and
perform such duties as are expressly delegated by the terms hereof and of the
other Credit Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere
herein and in the other Credit Documents, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein and
therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Credit Agreement or any of the other Credit Documents, or
shall otherwise exist against the Administrative Agent. The provisions of this
Section are solely for the benefit of the Administrative Agent and the Lenders
and the Borrower shall not have any rights as a third party beneficiary of the
provisions hereof. In performing its functions and duties under this Credit
Agreement and the other Credit Documents, the Administrative Agent shall act
solely as agent of the Lenders and does not assume and shall not be deemed to
have assumed any obligation or relationship of agency or trust with or for the
Borrower. Any agent named herein (other than the Administrative Agent) shall
have no duties or obligations whatsoever under this Credit Agreement or the
other Credit Documents.
10.2 Delegation of Duties.
--------------------
The Administrative Agent may execute any of its duties hereunder or under
the other Credit Documents by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
10.3 Exculpatory Provisions.
----------------------
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be liable to any Lender
for any action lawfully taken or omitted to be taken by it or such Person under
or in connection herewith or in connection with any of the other Credit
Documents (except for its or such Person's own gross negligence or willful
misconduct), or responsible in any manner to any of the Lenders for any
recitals, statements, representations or
49
warranties made by the Borrower contained herein or in any of the other Credit
Documents or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection herewith or in connection with the other Credit Documents, or
enforceability or sufficiency therefor of any of the other Credit Documents, or
for any failure of the Borrower to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be responsible to any Lender for
the effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of this Credit Agreement, or any of the other Credit Documents or
for any representations, warranties, recitals or statements made herein or
therein or made by the Borrower in any written or oral statement or in any
financial or other statements, instruments, reports, certificates or any other
documents in connection herewith or therewith furnished or made by the
Administrative Agent to the Lenders or by or on behalf of the Borrower to the
Administrative Agent or any Lender or be required to ascertain or inquire as to
the performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained herein or therein or as to the use of the
proceeds of the Loans or of the existence or possible existence of any Default
or Event of Default or to inspect the properties, books or records of the
Borrower. The Administrative Agent is not a trustee for the Lenders and owes no
fiduciary duty to the Lenders.
10.4 Reliance on Communications.
--------------------------
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it in
good faith to be genuine and correct and to have been signed, sent or made by
the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower, independent
accountants and other experts selected by the Administrative Agent with
reasonable care). The Administrative Agent may deem and treat the Lenders as
the owner of its interests hereunder for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent in accordance with Section 11.3(b). The Administrative
Agent shall be fully justified in failing or refusing to take any action under
this Credit Agreement or under any of the other Credit Documents unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder or under any of the other Credit Documents in accordance with a
request of the Required Lenders (or to the extent specifically provided in
Section 11.6, all the Lenders) and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Lenders (including their
successors and assigns).
10.5 Notice of Default.
-----------------
The Administrative Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or the Borrower referring
to the Credit Document, describing such Default or Event of Default and stating
that such notice is a "notice of default." In the event that the
50
Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders.
10.6 Non-Reliance on Administrative Agent and Other Lenders.
------------------------------------------------------
Each Lender expressly acknowledges that neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act by
the Administrative Agent or any affiliate thereof hereinafter taken, including
any review of the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, assets, operations, property,
financial and other conditions, prospects and creditworthiness of the Borrower
and made its own decision to make its Extensions of Credit hereunder and enter
into this Credit Agreement. Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, appraisals and decisions
in taking or not taking action under this Credit Agreement, and to make such
investigation as it deems necessary to inform itself as to the business, assets,
operations, property, financial and other conditions, prospects and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, assets, property, financial or other
conditions, prospects or creditworthiness of the Borrower which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
10.7 Indemnification.
---------------
Each Lender agrees to indemnify the Administrative Agent in its capacity as
such (to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to its Commitment
Percentage, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including without limitation at
any time following the payment in full of the Borrower Obligations) be imposed
on, incurred by or asserted against the Administrative Agent in its capacity as
such in any way relating to or arising out of this Credit Agreement or the other
Credit Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
--------
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Administrative Agent. If any indemnity
furnished to the Administrative Agent for any purpose shall, in the opinion of
the Administrative Agent, be
51
insufficient or become impaired, the Administrative Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished. The agreements in this
Section 10.7 shall survive the payment of the Borrower Obligations and all other
amounts payable hereunder and under the other Credit Documents and the
termination of the Commitments.
10.8 Administrative Agent in Its Individual Capacity.
-----------------------------------------------
The Administrative Agent and its Affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower as
though the Administrative Agent were not Administrative Agent hereunder. With
respect to the Loans made and all Borrower Obligations owing to it, the
Administrative Agent shall have the same rights and powers under this Credit
Agreement as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
10.9 Successor Agent.
---------------
The Administrative Agent may, at any time, resign upon 20 days written
notice to the Lenders. Upon any such resignation, the Required Lenders shall
have the right to appoint a successor Administrative Agent, which successor
shall be reasonably acceptable to the Borrower; provided that the Borrower shall
have no right to approve such successor during the existence and continuation of
a Default or Event of Default. If no successor Administrative Agent shall have
been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the notice of resignation, then the retiring
Administrative Agent shall select a successor Administrative Agent; provided
such successor is an Eligible Assignee (or if no Eligible Assignee shall have
been so appointed by the retiring Administrative Agent and shall have accepted
such appointment, then the Lenders shall perform all obligations of the retiring
Administrative Agent hereunder until such time, if any, as a successor
Administrative Agent shall have been appointed and shall have accepted such
appointment as provided for above). Upon the acceptance of any appointment as
an Administrative Agent hereunder by a successor, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations as an
Administrative Agent, as appropriate, under this Credit Agreement and the other
Credit Documents and the provisions of this Section 10 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was an
Administrative Agent under this Credit Agreement.
52
SECTION 11.
MISCELLANEOUS
11.1 Notices.
-------
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device), (c)
the Business Day following the day on which the same has been delivered to a
reputable national overnight air courier service, or (d) the third Business Day
following the day on which the same is sent by certified or registered mail,
postage prepaid, in each case to the respective parties at the address or
telecopy numbers set forth on Schedule 11.1, or at such other address as such
-------------
party may specify by written notice to the other parties hereto.
11.2 Right of Set-Off.
----------------
In addition to any rights now or hereafter granted under applicable law or
otherwise, and not by way of limitation of any such rights, upon the occurrence
and during the continuation of an Event of Default and the commencement of
remedies described in Section 9.2, each Lender is authorized at any time and
from time to time, without presentment, demand, protest or other notice of any
kind (all of which rights being hereby expressly waived), to set-off and to
appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Lender (including, without
limitation branches, agencies or Affiliates of such Lender wherever located) to
or for the credit or the account of the Borrower against obligations and
liabilities of the Borrower to the Lenders hereunder, under the Notes or the
other Credit Documents, irrespective of whether the Administrative Agent or the
Lenders shall have made any demand hereunder and although such obligations,
liabilities or claims, or any of them, may be contingent or unmatured, and any
such set-off shall be deemed to have been made immediately upon the occurrence
of an Event of Default even though such charge is made or entered on the books
of such Lender subsequent thereto. The Borrower hereby agrees that any Person
purchasing a participation in the Loans and Commitments hereunder pursuant to
Section 11.3(c) may exercise all rights of set-off with respect to its
participation interest as fully as if such Person were a Lender hereunder.
11.3 Benefit of Agreement.
--------------------
(a) Generally. This Credit Agreement shall be binding upon and inure
---------
to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided that the Borrower may not assign
--------
and transfer any of its interests without the prior written consent of the
Lenders; and provided further that the rights of each Lender to transfer,
-------- -------
assign or grant participations in its rights and/or obligations hereunder
shall be limited as set forth below in this Section 11.3.
(b) Assignments. Each Lender may assign to one or more Eligible
-----------
Assignees all or a portion of its rights and obligations under this Credit
Agreement (including, without limitation, all or a portion of its Loans,
its Notes, and its Commitment); provided,
--------
53
however, that:
-------
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or an
assignment of all of a Lender's rights and obligations under this
Credit Agreement, any such partial assignment shall be in an amount at
least equal to $5,000,000 (or, if less, the remaining amount of the
Commitment being assigned by such Lender) and an integral multiple of
$1,000,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a constant,
and not varying, percentage of all of its rights and obligations under
this Credit Agreement and the Notes; and
(iv) the parties to such assignment shall execute and deliver to
the Administrative Agent for its acceptance an Assignment Agreement in
substantially the form of Exhibit 11.3(b), together with a processing
---------------
fee from the assignor of $3,500.
Upon execution, delivery, and acceptance of such Assignment Agreement, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender
hereunder and the assigning Lender shall, to the extent of such assignment,
relinquish its rights and be released from its obligations under this
Credit Agreement. Upon the consummation of any assignment pursuant to this
Section 11.3(b), the assignor, the Administrative Agent and the Borrower
shall make appropriate arrangements so that, if required, new Notes are
issued to the assignor and the assignee. If the assignee is not
incorporated under the laws of the United States of America or a state
thereof; it shall deliver to the Borrower and the Administrative Agent
certification as to exemption from deduction or withholding of taxes in
accordance with Section 4.4.
By executing and delivering an assignment agreement in accordance with
this Section 11.3(b), the assigning Lender thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each other and the
other parties hereto as follows: (A) such assigning Lender warrants that it
is the legal and beneficial owner of the interest being assigned thereby
free and clear of any adverse claim created by such assigning Lender and
the assignee warrants that it is an Eligible Assignee; (B) except as set
forth in clause (A) above, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Credit
Agreement, any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Credit
Agreement, any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto or the financial condition of
the Borrower or the performance or observance by the Borrower of any of its
obligations under this
54
Credit Agreement, any of the other Credit Documents or any other instrument
or document furnished pursuant hereto or thereto; (C) such assignee
represents and warrants that it is legally authorized to enter into such
assignment agreement; (D) such assignee confirms that it has received a
copy of this Credit Agreement, the other Credit Documents and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such assignment agreement; (E)
such assignee will independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Lender, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Credit Agreement and the other Credit Documents; (F) such
assignee appoints and authorizes the Administrative Agent to take such
action on its behalf and to exercise such powers under this Credit
Agreement or any other Credit Document as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such
powers as are reasonably incidental thereto; and (G) such assignee agrees
that it will perform in accordance with their terms all the obligations
which by the terms of this Credit Agreement and the other Credit Documents
are required to be performed by it as a Lender.
(c) Register. The Administrative Agent shall maintain a copy of each
--------
Assignment Agreement delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the Commitment
of, and principal amount of the Loans owing to, each Lender from time to
time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Credit Agreement. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(d) Acceptance. Upon its receipt of an Assignment Agreement executed
----------
by the parties thereto, together with any Note subject to such assignment
and payment of the processing fee, the Administrative Agent shall, if such
Assignment Agreement has been completed and is in substantially the form of
Exhibit 11.3(b), (i) accept such Assignment Agreement, (ii) record the
--------------
information contained therein in the Register and (iii) give prompt notice
thereof to the parties thereto.
(e) Participations. Each Lender may sell participations to one or
--------------
more Persons in all or a portion of its rights, obligations or rights and
obligations under this Credit Agreement (including all or a portion of its
Commitment, its Notes and its Loans); provided, however, that (i) such
-------- -------
Lender's obligations under this Credit Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the participant shall
be entitled to the benefit of the yield protection provisions contained in
Sections 4.1 through 4.4, inclusive, and the right of set-off contained in
Section 11.2, and (iv) the Borrower shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Credit Agreement, and such Lender shall retain the
sole right to
55
enforce the obligations of the Borrower relating to its Loans and its Notes
and to approve any amendment, modification, or waiver of any provision of
this Credit Agreement (other than amendments, modifications, or waivers
decreasing the amount of principal of or the rate at which interest is
payable on such Loans or Notes, extending any scheduled principal payment
date or date fixed for the payment of interest on such Loans or Notes, or
extending its Commitment).
(f) Nonrestricted Assignments. Notwithstanding any other provision
-------------------------
set forth in this Credit Agreement, any Lender may at any time assign and
pledge all or any portion of its Loans and its Notes to any Federal Reserve
Bank as collateral security pursuant to Regulation A and any Operating
Circular issued by such Federal Reserve Bank. No such assignment shall
release the assigning Lender from its obligations hereunder.
(g) Information. Any Lender may furnish any information concerning
-----------
the Borrower in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and
participants).
11.4 No Waiver; Remedies Cumulative.
------------------------------
No failure or delay on the part of the Administrative Agent or any Lender
in exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrower and the Administrative
Agent or any Lender shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder or under any other
Credit Document preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder or thereunder. The rights and
remedies provided herein are cumulative and not exclusive of any rights or
remedies which the Administrative Agent or any Lender would otherwise have. No
notice to or demand on the Borrower in any case shall entitle the Borrower to
any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Administrative Agent or the Lenders to
any other or further action in any circumstances without notice or demand.
11.5 Payment of Expenses, etc.
------------------------
The Borrower agrees to: (i) pay all reasonable out-of-pocket costs and
expenses of the Administrative Agent and Banc of America Securities LLC ("BAS")
---
in connection with (A) the negotiation, preparation, execution and delivery and
administration of this Credit Agreement and the other Credit Documents and the
documents and instruments referred to therein (including, without limitation,
the reasonable fees and expenses of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC, special counsel to
the Administrative Agent) and (B) any amendment, waiver or consent relating
hereto and thereto including, but not limited to, any such amendments, waivers
or consents resulting from or related to any work-out, renegotiation or
restructure relating to the performance by the Borrower under this Credit
Agreement, (ii) pay all reasonable out-of-pocket costs and expenses of the
Administrative Agent and the Lenders in connection with (A) enforcement of the
Credit Documents and the documents and instruments referred to therein
(including, without limitation, in connection with any
56
such enforcement, the reasonable fees and disbursements of counsel for the
Administrative Agent and each of the Lenders (including the allocated cost of
internal counsel)) and (B) any bankruptcy or insolvency proceeding of the
Borrower and (iii) indemnify the Administrative Agent, BAS and each Lender, its
officers, directors, employees, representatives and agents from and hold each of
them harmless against any and all losses, liabilities, claims, damages or
expenses incurred by any of them as a result of, or arising out of, or in any
way related to, or by reason of, any investigation, litigation or other
proceeding (whether or not the Administrative Agent, BAS or any Lender is a
party thereto) related to the entering into and/or performance of any Credit
Document or the use of proceeds of any Loans (including other extensions of
credit) hereunder or the consummation of any other transactions contemplated in
any Credit Document, including, without limitation, the reasonable fees and
disbursements of counsel (including the allocated cost of internal counsel)
incurred in connection with any such investigation, litigation or other
proceeding (but excluding any such losses, liabilities, claims, damages or
expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified).
11.6 Amendments, Waivers and Consents.
--------------------------------
Neither this Credit Agreement, nor any other Credit Document nor any of the
terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing and signed by the Required Lenders and the Borrower; provided that no
--------
such amendment, change, waiver, discharge or termination shall without the
consent of each Lender affected thereby:
(a) extend the Maturity Date, or postpone or extend the time for any
payment or prepayment of principal;
(b) reduce the rate or extend the time of payment of interest (other
than as a result of waiving the applicability of any post-default increase
in interest rates) thereon or fees or other amounts payable hereunder;
(c) reduce or waive the principal amount of any Loan;
(d) increase or extend the Commitment of a Lender (it being understood
and agreed that a waiver of any Default or Event of Default or a waiver of
any mandatory reduction in the Commitments shall not constitute a change in
the terms of any Commitment of any Lender);
(e) release the Borrower from its obligations under the Credit
Documents;
(f) amend, modify or waive any provision of this Section 11.6 or
Section 3.6, 3.8, 9.1(a), 11.2, 11.3 or 11.5.
(g) reduce any percentage specified in, or otherwise modify, the
definition of Required Lenders; or
57
(h) consent to the assignment or transfer by the Borrower of any of
its rights and obligations under (or in respect of) the Credit Documents.
No provision of Section 10 may be amended or modified without the consent of the
Administrative Agent.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any reorganization plan that affects the Loans, and each
Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy
Code supersedes the unanimous consent provisions set forth herein and (y) the
Required Lenders may consent to allow the Borrower to use cash collateral in the
context of a bankruptcy or insolvency proceeding.
11.7 Counterparts/Telecopy.
---------------------
This Credit Agreement may be executed in any number of counterparts, each
of which where so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. Delivery of executed counterparts
by telecopy shall be as effective as an original and shall constitute a
representation that an original will be delivered.
11.8 Headings.
--------
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 Defaulting Lender.
-----------------
Each Lender understands and agrees that if such Lender is a Defaulting
Lender then it shall not be entitled to vote on any matter requiring the consent
of the Required Lenders or to object to any matter requiring the consent of all
the Lenders; provided, however, that all other benefits and obligations under
-------- -------
the Loan Documents shall apply to such Defaulting Lender.
11.10 Survival of Indemnification and Representations and Warranties.
--------------------------------------------------------------
All indemnities set forth herein and all representations and warranties
made herein shall survive the execution and delivery of this Credit Agreement,
the making of the Loans, and the repayment of the Loans and other obligations
and the termination of the Commitments hereunder.
11.11 Governing Law; Venue.
--------------------
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF
58
NEW YORK.
(b) Any legal action or proceeding with respect to this Credit
Agreement or any other Credit Document may be brought in the courts of the
State of New York or of the United States for the Southern District of New
York, and, by execution and delivery of this Credit Agreement, the Borrower
hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of such courts. The
Borrower further irrevocably consents to the service of process out of any
of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid,
to it at the address for notices pursuant to Section 11.1, such service to
become effective 10 days after such mailing. Nothing herein shall affect
the right of a Lender to serve process in any other manner permitted by law
or to commence legal proceedings or to otherwise proceed against the
Borrower in any other jurisdiction. The Borrower agrees that a final
judgment in any action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law; provided that nothing in this Section 11.11(b) is
intended to impair the Borrower's right under applicable law to appeal or
seek a stay of any judgment.
(c) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid
actions or proceedings arising out of or in connection with this Credit
Agreement or any other Credit Document in the courts referred to in
subsection (a) hereof and hereby further irrevocably waives and agrees not
to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum.
11.12 Waiver of Jury Trial.
--------------------
EACH OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
11.13 Severability.
------------
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.14 Further Assurances.
------------------
The Borrower agrees, upon the request of the Administrative Agent, to
promptly take such actions, as reasonably requested, as are necessary to carry
out the intent of this Credit Agreement
59
and the other Credit Documents.
11.15 Entirety.
--------
This Credit Agreement together with the other Credit Documents represent
the entire agreement of the parties hereto and thereto, and supersede all prior
agreements and understandings, oral or written, if any, including any commitment
letters or correspondence relating to the Credit Documents or the transactions
contemplated herein and therein.
11.16 Binding Effect; Continuing Agreement.
------------------------------------
(a) This Credit Agreement shall become effective at such time when
all of the conditions set forth in Section 5.1 have been satisfied or
waived by the Lenders and it shall have been executed by the Borrower, the
Administrative Agent and the Lenders, and thereafter this Credit Agreement
shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent and each Lender and their respective successors and
assigns.
(b) This Credit Agreement shall be a continuing agreement and shall
remain in full force and effect until all Loans, interest, fees and other
Borrower Obligations have been paid in full and all Commitments have been
terminated. Upon termination, the Borrower shall have no further
obligations (other than the indemnification provisions that survive) under
the Credit Documents; provided that should any payment, in whole or in
part, of the Borrower Obligations be rescinded or otherwise required to be
restored or returned by the Administrative Agent or any Lender, whether as
a result of any proceedings in bankruptcy or reorganization or otherwise,
then the Credit Documents shall automatically be reinstated and all amounts
required to be restored or returned and all costs and expenses incurred by
the Administrative Agent or any Lender in connection therewith shall be
deemed included as part of the Borrower Obligations.
[Remainder of Page Intentionally Left Blank]
60
Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.
BORROWER: ATMOS ENERGY CORPORATION,
--------
A Texas and Virginia corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Title: SVP, CFO and Treasurer
-------------------------------------------
LENDERS: BANK OF AMERICA, N.A.
-------
individually in its capacity as a
Lender and in its capacity as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------------
Title: Vice President
-------------------------------------------
Signature Page to Atmos Energy Corporation
Revolving Credit Agreement
AMSOUTH BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Title: Vice President
-------------------------------------------
Signature Page to Atmos Energy Corporation
Revolving Credit Agreement
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Title: Managing Director
-------------------------------------------
Signature Page to Atmos Energy Corporation
Revolving Credit Agreement
THE FUJI BANK, LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Title: Senior Vice President & Manager
-------------------------------------------
Signature Page to Atmos Energy Corporation
Revolving Credit Agreement
KBC BANK N.V.
By: /s/ ▇▇▇▇-▇▇▇▇▇▇ DIELS
----------------------------------------------
Name: ▇▇▇▇-▇▇▇▇▇▇ Diels
--------------------------------------------
Title: First Vice President
-------------------------------------------
Signature Page to Atmos Energy Corporation
Revolving Credit Agreement
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------------
Title: Vice President
-------------------------------------------
Signature Page to Atmos Energy Corporation
Revolving Credit Agreement
BANK ONE, NA
By: /s/ ▇▇▇▇ ▇. ▇▇▇
----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇
--------------------------------------------
Title: Vice President
-------------------------------------------
Signature Page to Atmos Energy Corporation
Revolving Credit Agreement
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Title: Deputy General Manager
-------------------------------------------
Signature Page to Atmos Energy Corporation
Revolving Credit Agreement
SOCIETE GENERALE NEW YORK BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
--------------------------------------------
Title: Vice President
-------------------------------------------