CREDIT AGREEMENT Dated as of March 2, 2007 Between FIRSTENERGY CORP. as Borrower, and MORGAN STANLEY SENIOR FUNDING, INC. as Lender
Exhibit
10.2
EXECUTION
COPY
U.S.
$250,000,000
Dated
as of
March 2, 2007
Between
FIRSTENERGY
CORP.
as
Borrower,
and
▇▇▇▇▇▇
▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
as
Lender
TABLE
OF
CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
| Page | |
| SECTION 1.01. Certain Defined Terms. | 1 |
| SECTION 1.02. Computation of Time Periods. | 10 |
| SECTION 1.03. Accounting Terms. | 10 |
| SECTION 1.04. Certain References. | 10 |
ARTICLE II
AMOUNT AND TERMS OF THE LOAN
| SECTION 2.01. The Loan. | 10 |
| SECTION 2.02. Selection of Interest Periods | 11 |
| SECTION 2.03. Repayment of the Loan. | 11 |
| SECTION 2.04. Interest on the Loan. | 11 |
| SECTION 2.05. Additional Interest on the Loan. | 11 |
| SECTION 2.06. Prepayments. | 12 |
| SECTION 2.07. Increased Costs. | 12 |
| SECTION 2.08. Illegality. | 13 |
| SECTION 2.09. Payments and Computations. | 13 |
| SECTION 2.10. Taxes. | 14 |
|
SECTION
2.11. Noteless Agreement; Evidence of Indebtedness.
|
15 |
|
SECTION
2.12. Extension of Termination Date.
|
16 |
ARTICLE III
CONDITIONS OF LENDING
| SECTION 3.01. Conditions Precedent to the Making of the Loan. | 16 |
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
| SECTION 4.01. Representations and Warranties of the Borrower. | 17 |
ARTICLE V
COVENANTS OF THE BORROWER
| SECTION 5.01. Affirmative Covenants of the Borrower. | 21 |
| SECTION 5.02. Debt to Capitalization Ratio. | 23 |
|
SECTION
5.03. Negative Covenants of the Borrower.
|
23 |
ARTICLE VI
EVENTS OF DEFAULT
| SECTION 6.01. Events of Default. | 25 |
ARTICLE VII
MISCELLANEOUS
| SECTION 7.01. Amendments, Etc. | 28 |
| SECTION 7.02. Notices, Etc. | 28 |
| SECTION 7.03. No Waiver; Remedies. | 28 |
| SECTION 7.04. Costs and Expenses; Indemnification. | 28 |
| SECTION 7.05. Right of Set-off. | 29 |
| SECTION 7.06. Binding Effect. | 30 |
| SECTION 7.07. Assignments and Participations. | 30 |
| SECTION 7.08. Governing Law. | 32 |
| SECTION 7.09. Consent to Jurisdiction; Waiver of Jury Trial. | 32 |
| SECTION 7.10. Severability. | 32 |
|
SECTION
7.11.
Entire Agreement.
|
32 |
|
SECTION
7.12.
Execution in Counterparts.
|
32 |
| SECTION 7.13. USA PATRIOT Act Notice. | 33 |
SCHEDULES AND EXHIBITS
| Schedule I | - | Lending Office |
| Exhibit A | - | Form of Assignment and Acceptance |
| Exhibit B | - | Form of Note |
| Exhibit C | - | Form of Opinion of ▇▇▇▇ ▇. Benz, Esq. |
| Exhibit D | - | Form of Opinion of Akin Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP |
CREDIT
AGREEMENT,
dated as of March
2, 2007, between FIRSTENERGY CORP., an Ohio corporation (the
“Borrower”)
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SENIOR FUNDING, INC., a Delaware corporation (the “Lender”).
PRELIMINARY
STATEMENTS
(1) The
Borrower has
requested that the Lender establish a ninety-day unsecured credit facility
in
the amount of $250,000,000 in favor of the Borrower, all of which may be used
for the repurchase of certain shares of the Borrower.
(2) Subject
to the terms
and conditions of this Agreement, the Lender is willing to establish the
requested credit facility in favor of the Borrower.
NOW,
THEREFORE,
in consideration
of the premises, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
AND ACCOUNTING TERMS
SECTION
1.01. Certain
Defined Terms.
As
used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
“Affiliate”
means, as to any
Person, any other Person that, directly or indirectly, controls, is controlled
by or is under common control with such Person or is a director or officer
of
such Person.
“Agreement”
means this Credit
Agreement, as amended, modified and supplemented from time to time.
“Applicable
Law”
means all
applicable laws, statutes, treaties, rules, codes, ordinances, regulations,
permits, certificates, orders, interpretations, licenses and permits of any
Governmental Authority and judgments, decrees, injunctions, writs, orders or
like action of any court, arbitrator or other judicial or quasi-judicial
tribunal of competent jurisdiction (including those pertaining to health, safety
or the environment or otherwise).
“Applicable
Margin”
means the interest
rate per
annum
equal to
0.65%.
“Assignment
and Acceptance”
means an assignment
and acceptance entered into by the Lender and an Eligible Assignee, in
substantially the form of Exhibit A hereto.
“ATSI”
means American
Transmission Systems, Incorporated, an Ohio corporation.
1
“Bankruptcy
Code”
means the
Bankruptcy Reform Act of 1978, as amended from time to time, and any Federal
law
with respect to bankruptcy, insolvency, reorganization, liquidation, moratorium
or similar laws affecting creditors’ rights generally.
“Borrower”
has
the meaning
set forth in the preamble hereto.
“Business
Day”
means a day of the
year on which banks are not required or authorized to close in New York City
or
Akron, Ohio, and on which dealings are carried on in the London interbank
market.
“CEI”
means The Cleveland
Electric Illuminating Company, an Ohio corporation.
“Change
of Control”
has
the meaning
set
forth in
Section
6.01(j).
“Code”
means the United
States Internal Revenue Code of 1986, as amended from time to time, and the
applicable regulations thereunder.
“Consolidated
Debt”
means,
at any date
of determination, the aggregate Indebtedness of the Borrower and its
Consolidated Subsidiaries determined on a consolidated basis in accordance
with
GAAP, but shall not include (i) Nonrecourse Indebtedness of the Borrower
and any of its Subsidiaries, (ii) obligations under leases that shall have
been or should be, in accordance with GAAP, recorded as operating leases in
respect of which the Borrower or any of its Consolidated Subsidiaries is liable
as a lessee, (iii) the aggregate principal amount of Stranded Cost
Securitization Bonds of the Borrower and its Consolidated Subsidiaries and
(iv)
the aggregate principal amount of Trust Preferred Securities and Junior
Subordinated Deferred Interest Obligations not exceeding 15% of the Total
Capitalization of the Borrower and its Consolidated Subsidiaries (determined,
for purposes of such calculation, without regard to the amount of Trust
Preferred Securities and Junior Subordinated Deferred Interest Debt Obligations
outstanding of the Borrower); provided
that the amount of
any mandatory principal amortization or defeasance of Trust Preferred Securities
or Junior Subordinated Deferred Interest Debt Obligations prior to the
Termination Date shall be included in this definition of Consolidated
Debt.
“Consolidated
Subsidiary”
means, as to any
Person, any Subsidiary of such Person the accounts of which are or are required
to be consolidated with the accounts of such Person in accordance with
GAAP.
“Controlled
Group”
means all members
of a controlled group of corporations and all trades or businesses (whether
or
not incorporated) under common control that, together with the Borrower and
its
Subsidiaries, are treated as a single employer under Section 414(b) or
414(c) of the Code.
“Debt
to
Capitalization Ratio”
means
the ratio of
Consolidated Debt of the Borrower to Total Capitalization of the
Borrower.
2
“Eligible
Assignee”
means (i) a
commercial bank organized under the laws of the United States, or any State
thereof; (ii) a commercial bank organized under the laws of any other
country that is a member of the OECD or has concluded special lending
arrangements with the International Monetary Fund associated with its “General
Arrangements to Borrow”, or a political subdivision of any such country,
provided
that such bank is
acting through a branch or agency located in the United States; (iii) a
finance company, insurance company or other financial institution or fund
(whether a corporation, partnership or other entity) engaged generally in
making, purchasing or otherwise investing in commercial loans in the ordinary
course of its business; or (iv) the central bank of any country that is a
member of the OECD; provided,
however,
that (A) any
Person described in clause (i), (ii), (iii) or (iv) above shall
also (x) have outstanding unsecured indebtedness that is rated A- or better
by S&P or A3 or better by Moody’s (or an equivalent rating by another
nationally recognized credit rating agency of similar standing if neither of
such corporations is in the business of rating unsecured indebtedness of
entities engaged in such businesses) and (y) have combined capital and
surplus (as established in its most recent report of condition to its primary
regulator, if applicable) of not less than $250,000,000 (or its equivalent
in
foreign currency), (B) any Person described in clause (ii), (iii) or
(iv) above shall, on the date on which it is to become a lender hereunder,
be entitled to receive payments hereunder without deduction or withholding
of
any United States Federal income taxes (as contemplated by Section 2.10(d))
and (C) any Person described in clause (i), (ii), (iii) or (iv) above shall,
in
addition, be reasonably acceptable to the Lender.
“Environmental
Laws”
means any federal,
state or local laws, ordinances or codes, rules, orders, or regulations relating
to pollution or protection of the environment, including, without limitation,
laws relating to hazardous substances, laws relating to reclamation of land
and
waterways and laws relating to emissions, discharges, releases or threatened
releases of pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes into the environment (including, without
limitation, ambient air, surface water, ground water, land surface or subsurface
strata) or otherwise relating to the manufacture, processing, distribution,
use,
treatment, storage, disposal, transport or handling of pollution, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes.
“ERISA”
means the Employee
Retirement Income Security Act of 1974, and the regulations promulgated and
rulings issued thereunder, each as amended, modified and in effect from time
to
time.
“Eurocurrency
Liabilities”
has the meaning
assigned to that term in Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
3
“Eurodollar
Rate”
means the interest
rate per
annum
at which eurodollar
deposits are offered in the London interbank market for a term equivalent to
the
applicable Interest Period determined by reference to Telerate page 3750 at
11:00 a.m. (London time) two Business Days before the first day of such Interest
Period for a period equal to such Interest Period. If
such rate is not
available at such time for any reason, then the “Eurodollar Rate” for such
Interest Period shall be the rate per annum determined by the Lender to be
the
rate at which deposits in dollars for delivery on the first day of such Interest
Period in same day funds in the approximate amount of the outstanding principal
amount of the Loan at such time and with a term equivalent to such Interest
Period would be offered by Citibank, N.A.’s London branch to major banks in the
London interbank eurodollar market at their request at approximately 11:00
a.m.
(London time) two Business Days prior to the commencement of such Interest
Period.
“Eurodollar
Rate Reserve Percentage”
means the reserve
percentage applicable during any Interest Period (or if more than one such
percentage shall be so applicable, the daily average of such percentages for
those days in such Interest Period during which any such percentage shall be
so
applicable) under regulations issued from time to time by the Board of Governors
of the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for the Lender with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities having
a term equal to such Interest Period.
“Event
of
Default”
has the meaning set
forth in Section 6.01.
“Exchange
Act”
means the
Securities Exchange Act of 1934, and the regulations promulgated thereunder,
in
each case as amended and in effect from time to time.
“Existing
Credit Agreement”
means
the Credit
Agreement, dated as of August 24, 2006, among the Borrower,
FirstEnergy
Solutions Corp., an Ohio corporation, American Transmission Systems,
Incorporated, an Ohio corporation, Ohio Edison Company, an Ohio corporation,
Pennsylvania Power Company, a Pennsylvania corporation, The Cleveland Electric
Illuminating Company, an Ohio corporation, The Toledo Edison Company, an Ohio
corporation, Jersey Central Power & Light Company, a New Jersey corporation,
Metropolitan Edison Company, a Pennsylvania corporation, and Pennsylvania
Electric Company, a Pennsylvania corporation, as borrowers,
the banks and
other financial institutions party thereto, Citibank, N.A., as administrative
agent for the lenders thereunder, the fronting banks party thereto from time
to
time and the swing line lenders party thereto from time to time, as the same
may
be amended, restated, modified or extended from time to time.
“FERC”
means
the Federal
Energy Regulatory Commission or successor organization.
“FES”
means FirstEnergy
Solutions Corp., an Ohio corporation.
4
“FERC
PUHCA 2005 Filing”
means
the
informational filing submitted to the FERC on February 21, 2006, pursuant to
the
Public Utility Holding Company Act of 2005 and the FERC's Order No. 667, which
enabled the Borrower to continue to rely on the financing authorizations
authorized in the SEC Order.
“First
Mortgage Indenture”
means, with respect
to any Significant Subsidiary, an indenture or similar instrument pursuant
to
which such Person may issue bonds, notes or similar instruments secured by
a
lien on all or substantially all of such Person’s fixed assets.
“GAAP”
means
generally
accepted accounting principles in the United States in effect from time to
time.
“Governmental
Action”
means all
authorizations, consents, approvals, waivers, exceptions, variances, orders,
licenses, exemptions, publications, filings, notices to and declarations of
or
with any Governmental Authority (other than routine reporting requirements
the
failure to comply with which will not affect the validity or enforceability
of
any Loan Document or have a material adverse effect on the transactions
contemplated by any Loan Document or any material rights, power or remedy of
any
Person thereunder or any other action in respect of any Governmental
Authority).
“Governmental
Authority”
means any Federal,
state, county, municipal, foreign, international, regional or other governmental
authority, agency, board, body, instrumentality or court.
“Indebtedness”
of any Person means
at any date, without duplication, (i) all obligations of such Person for
borrowed money, or with respect to deposits or advances of any kind, or for
the
deferred purchase price of property or services, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or similar instruments,
(iii) all obligations of such Person upon which interest charges are
customarily paid, (iv) all obligations under leases that shall have been or
should be, in accordance with GAAP, recorded as capital leases in respect of
which such Person is liable as lessee, (v) liabilities in respect of
unfunded vested benefits under Plans, (vi) withdrawal liability incurred
under ERISA by such Person or any of its affiliates to any Multiemployer Plan,
(vii) reimbursement obligations of such Person (whether contingent or
otherwise) in respect of letters of credit, bankers acceptances, surety or
other
bonds and similar instruments, (viii) all Indebtedness of others secured by
a Lien on any asset of such Person, whether or not such Indebtedness is assumed
by such Person and (ix) obligations of such Person under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) to purchase
or otherwise acquire, or otherwise to assure a creditor against loss in respect
of, indebtedness or obligations of others of the kinds referred to above.
5
“Interest
Period”
means the period
commencing on the date of the making of the Loan and ending on the last day
of
the period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period selected
by
the Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two or three months, as the Borrower may select
by
notice to the Lender pursuant to Section 2.02; provided,
however,
that:
(i) the
Borrower may not
select any Interest Period that ends after the latest Termination Date;
and
(ii) whenever
the last
day of any Interest Period would otherwise occur on a day other than a Business
Day, the last day of such Interest Period shall be extended to occur on the
next
succeeding Business Day, provided,
that if such
extension would cause the last day of such Interest Period to occur in the
next
following calendar month, the last day of such Interest Period shall occur
on
the next preceding Business Day.
“JCP&L”
means Jersey
Central Power & Light Company, a New Jersey corporation.
“Junior
Subordinated Deferred Interest Debt Obligations”
means
subordinated
deferrable interest debt obligations of the Borrower (A) for which the maturity
date is subsequent to the Termination Date and (B) that are fully subordinated
in right of payment to the Indebtedness hereunder.
“Lending
Office”
means the office of
the Lender specified as its “Lending
Office”
on Schedule I hereto or, in the case of any Eligible Assignee that becomes
a lender hereunder, in the Assignment and Acceptance pursuant to which it became
a lender, or such other office of the Lender or such Eligible Assignee as such
Person may from time to time specify to the Borrower.
“Lender”
has the meaning set
forth in the preamble hereto.
“Lien”
means, with respect
to any asset, any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such asset. For the purposes of this
Agreement, a Person or any of its Subsidiaries shall be deemed to own, subject
to a Lien, any asset that it has acquired or holds subject to the interest
of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset.
“Loan”
means
the loan
made by the Lender to the Borrower pursuant to Section 2.01.
“Loan
Documents”
means this
Agreement and any Note.
6
“Mansfield
Sale/Leaseback”
means
the proposed
sale and leaseback by a Subsidiary of the Borrower of its owned portion of
▇▇▇▇
▇ of the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Plant currently scheduled to be consummated in the
second quarter of 2007.
“Margin
Stock”
has the meaning
assigned to that term in Regulation U issued by the Board of Governors of
the Federal Reserve System, and as amended and in effect from time to
time.
“Met-Ed”
means Metropolitan
Edison Company, a Pennsylvania corporation.
“Moody’s”
means ▇▇▇▇▇’▇
Investors Service, Inc. or any successor thereto.
“Multiemployer
Plan”
means a
“multiemployer plan” as defined in Section 4001(a)(3) of
ERISA.
“Nonrecourse
Indebtedness”
means
any
Indebtedness that finances the acquisition, development, ownership or operation
of an asset in respect of which the Person to which such Indebtedness is owed
has no recourse whatsoever to the Borrower or any of its Affiliates other
than:
|
(i)
|
recourse
to
the named obligor with respect to such Indebtedness (the “Debtor”)
for amounts
limited to the cash flow or net cash flow (other than historic cash
flow)
from the asset; and
|
|
(ii)
|
recourse
to
the Debtor for the purpose only of enabling amounts to be claimed
in
respect of such Indebtedness in an enforcement of any security interest
or
lien given by the Debtor over the asset or the income, cash flow
or other
proceeds deriving from the asset (or given by any shareholder or
the like
in the Debtor over its shares or like interest in the capital of
the
Debtor) to secure the Indebtedness, but only if the extent of the
recourse
to the Debtor is limited solely to the amount of any recoveries made
on
any such enforcement; and
|
|
(iii)
|
recourse
to
the Debtor generally or indirectly to any Affiliate of the Debtor,
under
any form of assurance, undertaking or support, which recourse is
limited
to a claim for damages (other than liquidated damages and damages
required
to be calculated in a specified way) for a breach of an obligation
(other
than a payment obligation or an obligation to comply or to procure
compliance by another with any financial ratios or other tests of
financial condition) by the Person against which such recourse is
available.
|
“Note”
means any
promissory note issued at the request of the Lender pursuant to
Section 2.11 in the form of Exhibit B hereto.
“OE”
means The Ohio
Edison Company, an Ohio corporation.
“OECD”
means
the
Organization for Economic Cooperation and Development.
7
“Organizational
Documents”
shall
mean, as
applicable to any Person, the charter, code of regulations, articles of
incorporation, by-laws, certificate of formation, operating agreement,
certificate of partnership, partnership agreement, certificate of limited
partnership, limited partnership agreement or other constitutive documents
of
such Person.
“Other
Taxes”
has the meaning set
forth in Section 2.10(b).
“Patriot
Act”
means
the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001),
as
in effect from time to time.
“PBGC”
means the Pension
Benefit Guaranty Corporation and any entity succeeding to any or all of its
functions under ERISA.
“Penelec”
means Pennsylvania
Electric Company, a Pennsylvania corporation.
“Penn”
means Pennsylvania
Power Company, a Pennsylvania corporation.
“Person”
means an
individual, partnership, corporation (including a business trust), limited
liability company, joint stock company, trust, unincorporated association,
joint
venture or other entity, or a government or any political subdivision or agency
thereof.
“Plan”
means, at any time,
an employee pension benefit plan that is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code and
is either (i) maintained by a member of the Controlled Group for employees
of a member of the Controlled Group or (ii) maintained pursuant to a
collective bargaining agreement or any other arrangement under which more than
one employer makes contributions and to which a member of the Controlled Group
is then making or accruing an obligation to make contributions or has within
the
preceding five plan years made contributions.
“S&P”
means Standard
& Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or
any successor thereto.
“SEC”
means the United
States Securities and Exchange Commission or any successor thereto.
“SEC
Order” means
the order
issued by the SEC that authorized the Borrower to obtain extensions of credit
until February 8, 2006, which authorization was extended through December 31,
2007, pursuant to the FERC PUHCA 2005 Filing.
“Significant
Subsidiaries”
means
(i) each regulated energy Subsidiary of the Borrower, including, but not
limited to, OE, Penn, CEI, TE, JCP&L, Met-Ed and Penelec, and any successor
to any of them, (ii) FES and ATSI, and (iii) each other Subsidiary of the
Borrower the annual revenues of which exceed $100,000,000 or the total assets
of
which exceed $50,000,000.
8
“Stranded
Cost Securitization Bonds”
means
any
instruments, pass-through certificates, notes, debentures, certificates of
participation, bonds, certificates of beneficial interest or other evidences
of
indebtedness or instruments evidencing a beneficial interest that are secured
by
or otherwise payable from non-bypassable cent per kilowatt hour charges
authorized pursuant to an order of a state commission regulating public
utilities to be applied and invoiced to customers of such utility. The charges
so applied and invoiced must be deducted and stated separately from the other
charges invoiced by such utility against its customers.
“Subsidiary”
means, with respect
to any Person, any corporation or other entity of which securities or other
ownership interests having ordinary voting power to elect a majority of the
Board of Directors or other persons performing similar functions are at the
time
directly or indirectly owned by such a Person, or one or more Subsidiaries,
or
by such Person and one or more of its Subsidiaries.
“Taxes”
has the meaning set
forth in Section 2.10(a).
“Termination
Date”
means June 1, 2007,
subject to the extension described in Section 2.12 hereof.
“Termination
Event”
means (i) a
Reportable Event described in Section 4043 of ERISA and the regulations
issued thereunder (other than a Reportable Event not subject to the provision
for 30-day notice to the PBGC under such regulations), or (ii) the
withdrawal of any member of the Controlled Group from a Plan during a plan
year
in which it was a “substantial
employer”
as
defined in
Section 4001(a)(2) of ERISA, or (iii) the filing of a notice of
intent to terminate a Plan or the treatment of a Plan amendment as a termination
under Section 4041 of ERISA, or (iv) the institution of proceedings to
terminate a Plan by the PBGC, or (v) any other event or condition that
might constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Plan.
“Total
Capitalization”
means,
with
respect to the Borrower at any date of determination the sum, without
duplication, of (i) Consolidated Debt of the Borrower,
(ii) the
capital stock
(but excluding treasury stock and capital stock subscribed and unissued) and
other equity accounts (including retained earnings and paid in capital but
excluding accumulated other comprehensive income and loss) of
the Borrower and
its Consolidated Subsidiaries, (iii) consolidated equity of the preference
stockholders of the Borrower and its Consolidated Subsidiaries, and
(iv) the aggregate principal amount of Trust Preferred Securities and
Junior
Subordinated Deferred Interest Debt Obligations.
9
“Trust
Preferred Securities”
means
(i) the
issued and outstanding preferred securities of Cleveland Electric Financing
Trust I and (ii) any other securities, however denominated, (A) issued by the
Borrower or any Consolidated Subsidiary of the Borrower, (B) that are not
subject to mandatory redemption or the underlying securities, if any, of which
are not subject to mandatory redemption, (C) that are perpetual or mature no
less than 30 years from the date of issuance, (D) the indebtedness issued in
connection with which, including any guaranty, is subordinate in right of
payment to the unsecured and unsubordinated indebtedness of the issuer of such
indebtedness or guaranty, and (E) the terms of which permit the deferral of
the
payment of interest or distributions thereon to a date occurring after the
Termination Date.
“Unfunded
Vested Liabilities”
means, with respect
to any Plan at any time, the amount (if any) by which (i) the present value
of all vested nonforfeitable benefits under such Plan exceeds (ii) the fair
market value of all Plan assets allocable to such benefits, all determined
as of
the then most recent valuation date for such Plan, but only to the extent that
such excess represents a potential liability of a member of the Controlled
Group
to the PBGC or the Plan under Title IV of ERISA.
“Unmatured
Default”
means
any event
that, with the giving of notice or the passage of time, or both, would
constitute an Event of Default.
SECTION
1.02. Computation
of Time Periods.
In
this Agreement in
the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including” and the words “to” and “until”
each means “to but excluding”.
SECTION
1.03. Accounting
Terms.
All
accounting terms
not specifically defined herein shall be construed in accordance with GAAP
consistent with those applied in the preparation of the financial statements
referred to in Section 4.01(g) hereof.
SECTION
1.04. Certain
References.
Unless
otherwise
indicated, references in this Agreement to articles, sections, paragraphs,
clauses, schedules and exhibits are to the same contained in or attached to
this
Agreement.
ARTICLE II
AMOUNT
AND
TERMS OF THE LOAN
SECTION
2.01. The
Loan.
The
Lender agrees,
on the terms and conditions hereinafter set forth, to make a single advance
to
the Borrower in U.S. dollars in the principal amount of $250,000,000 on the
date
of this Agreement.
10
SECTION
2.02. of
Interest Periods
On
the date of this
Agreement, on or before the making of the Loan by the Lender, the Borrower
shall
specify the duration of initial Interest Period applicable to the Loan, which
shall be subject to the limitations stated in the definition of “Interest
Period” in Section 1.01. Thereafter, on the third Business Day prior to the
expiration of the Interest Period then in effect, the Borrower shall notify
the
Lender of the duration of the next succeeding Interest Period, which
shall be
subject to the limitations stated in the definition of “Interest Period” in
Section 1.01.
SECTION
2.03. Repayment
of the Loan.
The
Borrower agrees
to repay the outstanding principal amount of the Loan to the Lender no later
than the Termination Date.
SECTION
2.04. Interest
on the Loan.
The
Borrower agrees
to pay interest on the unpaid principal amount of the Loan from the date of
this
Agreement until such principal amount shall be paid in full, at a
rate per annum
equal to the sum of the Eurodollar Rate for the Interest Period then in effect
plus
the Applicable
Margin, payable on the last day of each Interest Period, on the Termination
Date
and on the date the Loan or any portion thereof shall be prepaid in accordance
with Section 2.06.
SECTION
2.05. Additional
Interest on the Loan.
The
Borrower agrees
to pay to the Lender, so long as the Lender shall be required under regulations
of the Board of Governors of the Federal Reserve System to maintain reserves
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount of the Loan,
from the date of this Agreement until such principal amount is paid in full,
at
an interest rate per
annum
equal at all times
to the remainder obtained by subtracting (i) the Eurodollar Rate for the
Interest Period then in effect from (ii) the rate obtained by dividing such
Eurodollar Rate by a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage for such Interest Period, payable on each date on which interest
is
payable on the Loan hereunder; provided,
that the Lender
shall not be entitled to demand additional interest under this Section 2.05
more than 90 days following the last day of the Interest Period in respect
of which such demand is made; provided
further, however,
that the foregoing
proviso shall in no way limit the right of the Lender to demand or receive
such
additional interest to the extent that such additional interest relates to
the
retroactive application by the Board of Governors of the Federal Reserve System
of any regulation described above if such demand is made within 90 days
after the implementation of such retroactive regulation. Such additional
interest shall be determined by the Lender and notified to the Borrower, and
such determination shall be conclusive and binding for all purposes, absent
manifest error.
11
SECTION
2.06. Prepayments.
(a) Optional.
The Borrower may
at any time prepay the outstanding principal amount of the Loan in whole or
in
part, together with accrued interest to the date of such prepayment on the
principal amount prepaid, upon notice thereof given to the Lender not later
than
11:00 a.m. (New York time) on the second Business Day prior to any such
prepayment provided,
however,
that (i) each
partial prepayment of the Loan shall be in an aggregate principal amount not
less than $5,000,000 and (ii) the Borrower shall be obligated to reimburse
the Lender in respect of any amounts payable pursuant to
Section 7.04(b) on the date of such prepayment.
(b) Mandatory.
Promptly upon the
receipt by the Borrower or any of its Subsidiaries of cash proceeds with respect
to the Mansfield Sale/Leaseback (net of any costs and expenses incurred by
the
Borrower and its Affiliates in connection therewith, and the amount of all
taxes
(if any) payable by the Borrower and its Affiliates in connection therewith),
the Borrower shall prepay the Loan in the amount of such proceeds within five
Business Days after receipt thereof. In addition, in the event that, after
the
date of this Agreement, there is any increase in the aggregate commitments
of
the lenders under the Existing Credit Agreement that is available to be borrowed
pursuant to Section 2.06(b) thereof, and capable of being borrowed, by the
Borrower thereunder, the Borrower shall borrow such additional amounts under
the
Existing Credit Agreement and, upon receipt thereof, shall prepay the Loan
in an
amount equal to such additional amounts. Any prepayment of the Loan shall be
accompanied by accrued interest on the amount prepaid to the date of such
prepayment, and the Borrower shall be obligated to reimburse the Lender in
respect of any amounts payable pursuant to Section 7.04(b) on the date
of such prepayment.
SECTION
2.07. Increased
Costs.
(a) If,
due to either
(i) the introduction of or any change (other than any change by way of
imposition or increase of reserve requirements included in the Eurodollar Rate
Reserve Percentage) in or in the interpretation of any law or regulation, in
each case, after the date hereof, or (ii) the compliance with any guideline
or request from any central bank or other governmental authority (whether or
not
having the force of law) issued, promulgated or made, as the case may be, after
the date hereof, there shall be any increase in the cost to the Lender of
agreeing to make or making, funding or maintaining the Loan at the Eurodollar
Rate, then the Borrower shall from time to time, upon demand by the Lender,
pay
to the Lender additional amounts sufficient to compensate the Lender for such
increased cost. A certificate as to the amount of such increased cost and the
basis therefor, submitted to the Borrower by the Lender shall constitute such
demand and shall be conclusive and binding for all purposes, absent manifest
error.
12
(b) If
the Lender
determines that compliance with any law or regulation or any guideline or
request from any central bank or other governmental authority (whether or not
having the force of law), issued, promulgated or made (as the case may be)
after
the date hereof, affects or would affect the amount of capital required or
expected to be maintained by the Lender or any corporation controlling the
Lender and that the amount of such capital is increased by or based upon the
making or funding of the Loan hereunder, then, upon demand by the Lender, the
Borrower shall immediately pay to the Lender, from time to time as specified
by
the Lender, additional amounts sufficient to compensate the Lender or such
corporation in the light of such circumstances, to the extent that the Lender
determines such increase in capital to be allocable to the making or funding
of
the Loan hereunder. A certificate as to such amounts submitted to the Borrower
by the Lender shall constitute such demand and shall be conclusive and binding
for all purposes, absent manifest error.
SECTION
2.08. Illegality.
Notwithstanding
any
other provision of this Agreement, if the Lender shall notify the Borrower
that
the introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for the Lender to fund or maintain the
Loan at the Eurodollar Rate hereunder, the Loan shall forthwith bear interest
at
a rate per annum to be agreed between the Borrower and the Lender. Lender upon
becoming aware of circumstances that would permit the Lender to notify the
Borrower of any illegality under this Section 2.08 shall use its best
efforts (consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Applicable Lending Office if
the
making of such change would avoid or eliminate such illegality and would not,
in
the reasonable judgment of the Lender, be otherwise disadvantageous to the
Lender.
SECTION
2.09. Payments
and Computations.
(a) The
Borrower shall
make each payment hereunder and under any Note not later than 12:00 noon (New
York time) on the day when due in U.S. dollars to the Lender at its address
referred to in Section 7.02 in same day funds, without set-off,
counterclaim or defense. Upon the effective date specified in any Assignment
and
Acceptance, the Lender shall make all payments hereunder and under any Note
in
respect of the interest assigned thereby to the assignee thereunder, and the
parties to such Assignment and Acceptance shall make all appropriate adjustments
in such payments for periods prior to such effective date directly between
themselves.
(b) The
Borrower hereby
authorizes the Lender, if and to the extent payment owed to the Lender is not
made by the Borrower to the Lender when due hereunder or under any Note held
by
the Lender, to charge from time to time against any or all of the Borrower’s
accounts (other than any payroll account maintained by the Borrower with the
Lender if and to the extent that the Lender shall have expressly waived its
set-off rights in writing in respect of such payroll account) with the Lender
any amount so due.
13
(c) All
computations of
interest shall be made by the Lender, on the basis of a year of 360 days, for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest is payable. Each determination
by the Lender of an interest rate hereunder shall be conclusive and binding
for
all purposes, absent manifest error.
(d) Whenever
any payment
hereunder or under any Note shall be stated to be due on a day other than a
Business Day, such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the computation
of
payment of interest or facility fees, as the case may be; provided,
however,
if such extension
would cause payment of interest on or principal of the Loan to be made in the
next following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Any
amount payable
by the Borrower hereunder or under any Note that is not paid when due (whether
at stated maturity, by acceleration or otherwise) shall (to the fullest extent
permitted by law) bear interest from the date when due until paid in full at
a
rate per
annum
equal at all times
to the rate otherwise applicable hereunder plus
2% per
annum,
payable upon
demand.
(f) To
the extent that
any payment by the Borrower is made to the Lender, or the Lender exercises
its
right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by
the
Lender in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any proceeding under any bankruptcy, insolvency or
other similar law now or hereafter in effect or otherwise (a “Returned
Payment”),
then to the
extent of such recovery, the obligation or part thereof originally intended
to
be satisfied shall be revived and continued in full force and effect as if
such
payment had not been made or such setoff had not occurred.
SECTION
2.10. Taxes.
(a) Any
and all payments
by the Borrower hereunder and under any Note shall be made, in accordance with
Section 2.09, free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding,
in the case of the
Lender, such taxes, levies, imposts, deductions and charges in the nature of
franchise taxes or taxes measured by the gross receipts or net income of the
Lender, by any jurisdiction in which the Lender, is organized, located or
conducts business or any political subdivision thereof and by the jurisdiction
of the Lender’s Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being herein referred to as “Taxes”).
If the Borrower
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any Note to the Lender (i) the sum payable shall
be increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 2.10) the Lender receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
Applicable Law.
14
(b) In
addition, the
Borrower agrees to pay any present or future stamp or documentary taxes or
any
other excise or property taxes, charges or similar levies that arise from any
payment made hereunder or under any Note or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or any Note
(herein referred to as “Other
Taxes”).
(c) The
Borrower agrees
to indemnify the Lender for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.10) paid by the Lender and any
liability (including penalties, interest and expenses) arising therefrom or
with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within 30 days from the
date the Lender makes written demand therefor.
(d) Any
assignee of the
Lender that is organized under the laws of a jurisdiction outside the United
States shall provide the Lender and the Borrower with the forms prescribed
by
the Internal Revenue Service of the United States certifying that such assignee
is exempt from United States withholding taxes with respect to all payments
to
be made to such assignee hereunder and under any Note. If for any reason during
the term of this Agreement, any assignee becomes unable to submit the forms
referred to above or the information or representations contained therein are
no
longer accurate in any material respect, such assignee shall promptly notify
the
Borrower in writing to that effect. Unless the Lender and the Borrower have
received forms or other documents satisfactory to them indicating that payments
hereunder or under any Note are not subject to United States withholding tax,
the Borrower shall withhold taxes from such payments at the applicable statutory
rate in the case of payments to or for any Person organized under the laws
of a
jurisdiction outside the United States.
(e) The
Lender, or any
assignee claiming any additional amounts payable pursuant to this
Section 2.10 shall use its best efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of
its
Lending Office if the making of such a change would avoid the need for, or
reduce the amount of, any such additional amounts that may thereafter accrue
and
would not, in the reasonable judgment of such Person, be otherwise
disadvantageous to such Person.
(f) Without
prejudice to
the survival of any other agreement of the Borrower hereunder, the agreements
and obligations of the Borrower contained in this Section 2.10 shall
survive the payment in full of principal and interest hereunder and under any
Note.
SECTION
2.11. Noteless
Agreement; Evidence of Indebtedness.
(a) The
Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to the Lender hereunder, including the amounts
of principal and interest payable and paid to the Lender from time to time
hereunder.
(b) The
entries
maintained in the accounts maintained pursuant to subsection (a) above shall
be
prima facie evidence of the existence and amounts of the obligations therein
recorded; provided,
however,
that the failure
of the Lender to maintain such accounts or any error therein shall not in any
manner affect the obligation of the Borrower to repay such obligations in
accordance with their terms.
15
(c) The
Lender may
request that the Loan be evidenced by a Note. In such event, the Borrower shall
prepare, execute and deliver to the Lender a Note payable to the order of the
Lender. Thereafter, the Loan and interest thereon shall at all times (including
after any assignment pursuant to Section 7.07) be represented by one or
more Notes payable to the order of the payee named therein or any assignee
pursuant to Section 7.07, except to the extent that the Lender or any such
assignee subsequently returns any such Note for cancellation and requests that
the Loan once again be evidenced as described in subsection (a)
above.
SECTION
2.12. Extension
of Termination Date.
So
long as no Event
of Default or Unmatured Default has occurred and is continuing, the Borrower
shall have the right, no later than 10 days prior to the then-effective
Termination Date, to extend the Termination Date for a period of 30 days;
provided,
that (i) the
representations and warranties contained in Section 4.01 are correct in all
material respects on and as of the date of extension of the Termination Date,
before and after giving effect to such extension, as though made on and as
of
such date, and that, on or prior to the date of such extension, and (ii) the
Lender shall have received the following, each dated such date and in form
and
substance reasonably satisfactory to the Lender: (x) a certificate of a
duly authorized officer of the Borrower to the effect that as of the date of
extension of the Termination Date the statement set forth in clause (i) above
is
true, and (y) certified copies of the resolutions of the Board of Directors
of the Borrower authorizing such extension and the performance of this Agreement
on and after the date of extension of the Termination Date, and of all documents
evidencing other necessary corporate action and governmental and regulatory
approvals with respect to this Agreement and such extension of the Termination
Date.
ARTICLE III
CONDITIONS
OF LENDING
SECTION
3.01. Conditions
Precedent to the Making of the Loan.
The
obligation of
the Lender to make the Loan to the Borrower on the date of this Agreement is
subject to the conditions precedent that on or before such date:
(a) The
Lender shall
have received the following, each dated the same date (except for the financial
statements referred to in paragraph (iv)), in form and substance
satisfactory to the Lender:
(i) This
Agreement, duly
executed by each of the parties hereto, and any Note requested by the Lender
pursuant to Section 2.11(c), duly completed and executed by the Borrower
and payable to the order of the Lender;
(ii) Certified
copies of
the resolutions of the Board of Directors of the Borrower approving this
Agreement and the other Loan Documents and of all documents evidencing any
other
necessary corporate action with respect to this Agreement and the Loan
Documents;
16
(iii) A
certificate of the
Secretary or an Assistant Secretary of the Borrower certifying (A) the
names and true signatures of the officers of the Borrower authorized to sign
each Loan Document and the other documents to be delivered hereunder;
(B) that attached thereto are true and correct copies of the Organizational
Documents of the Borrower, in each case as in effect on such date; and
(C) that attached thereto are true and correct copies of all governmental
and regulatory authorizations and approvals (including the SEC Order) required
for the due execution, delivery and performance by the Borrower of this
Agreement and each other Loan Document;
(iv) Copies
of the
consolidated balance sheets of the Borrower and its Subsidiaries as of
December 31, 2006, and the related consolidated statements of income,
retained earnings and cash flows of the Borrower and its Subsidiaries for the
fiscal year then ended, certified by PricewaterhouseCoopers LLP;
(v) An
opinion of ▇▇▇▇
▇. Benz, Esq., counsel for the Borrower, substantially in the form of
Exhibit C hereto;
(vi) An
opinion of Akin
Gump ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Borrower,
substantially in the form of Exhibit D hereto; and
(vii) Such
other
certifications, opinions, financial or other information, approvals and
documents as the Lender may reasonably request, all in form and substance
satisfactory to the Lender.
(b) The
Lender shall
have received all documentation and information required by regulatory
authorities under applicable “know your customer” and anti-money laundering
rules and regulations, including without limitation the Patriot Act.
(c) The
representations
and warranties of the Borrower contained in Section 4.01 hereof are true
and correct on and as of the date of the making of the Loan, before and after
giving effect to the making of the Loan and to the application of the proceeds
therefrom.
ARTICLE IV
REPRESENTATIONS
AND WARRANTIES
SECTION
4.01. Representations
and Warranties of the Borrower.
The
Borrower
represents and warrants as follows:
(a) Corporate
Existence and Power.
It is a
corporation duly incorporated, validly existing and in good standing under
the
laws of the State of Ohio, is duly qualified to do business as a foreign
corporation in and is in good standing under the laws of each state in which
the
ownership of its properties or the conduct of its business makes such
qualification necessary except where the failure to be so qualified would not
have a material adverse effect on its business or financial condition or its
ability to perform its obligations under the Loan Documents, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now
conducted.
17
(b) Corporate
Authorization.
The execution,
delivery and performance by it of each Loan Document have been duly authorized
by all necessary corporate action on its part and do not, and will not, require
the consent or approval of its shareholders, or any trustee or holder of any
Indebtedness or other obligation of it, other than such consents and approvals
as have been duly obtained, given or accomplished.
(c) No
Violation, Etc.
Neither the
execution, delivery or performance by it of this Agreement or any other Loan
Document, nor the consummation by it of the transactions contemplated hereby
or
thereby, nor compliance by it with the provisions hereof or thereof, conflicts
or will conflict with, or results or will result in a breach or contravention
of
any of the provisions of its Organizational Documents, any Applicable Law,
or
any indenture, mortgage, lease or any other agreement or instrument to which
it
is party or by which its property is bound, or results or will result in the
creation or imposition of any Lien upon any of its property except as provided
herein. There is no provision of its Organizational Documents, or any Applicable
Law, or any such indenture, mortgage, lease or other agreement or instrument
that materially adversely affects, or in the future is likely (so far as it
can
now foresee) to materially adversely affect, its business, operations, affairs,
condition, properties or assets or its ability to perform its obligations under
this Agreement or any other Loan Document. The Borrower and each of its
Subsidiaries is in compliance with all laws (including, without limitation,
ERISA and Environmental Laws), regulations and orders of any Governmental
Authority applicable to it or its property and all indentures, agreements and
other instruments binding upon it or its property, except where the failure
to
do so, individually or in the aggregate, has not had and could not reasonably
be
expected to have a material adverse effect on (i) the business, assets,
operations, condition (financial or otherwise) or prospects of the Borrower
and
its Subsidiaries taken as a whole, or (ii) the legality, validity or
enforceability of any of the Loan Documents or the rights, remedies and benefits
available to the parties thereunder or the ability of the Borrower to perform
its obligations under the Loan Documents.
(d) Governmental
Actions.
No Governmental
Action is or will be required in connection with the execution, delivery or
performance by it, or the consummation by it of the transactions contemplated
by
this Agreement or any other Loan Document other than the SEC Order, which has
been duly issued and is in full force and effect.
(e) Execution
and Delivery.
This Agreement and
the other Loan Documents have been duly executed and delivered by it, and this
Agreement and each other Loan Document is the legal, valid and binding
obligation of it enforceable against it in accordance with its terms,
subject,
however,
to the application
by a court of general principles of equity and to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally.
18
(f) Litigation.
Except as
disclosed in the Borrower’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2006 and its Current Reports on Form 8-K filed in 2007
prior to the date hereof (copies of which have been furnished to the Lender),
there is no pending or threatened action or proceeding (including, without
limitation, any proceeding relating to or arising out of Environmental Laws)
against it or any of its Subsidiaries before any court, governmental agency
or
arbitrator that has a reasonable possibility of having a material adverse effect
on the business, condition (financial or otherwise), results of operations
or
prospects of it and its consolidated subsidiaries, taken as a whole, or on
the
ability of the Borrower to perform its obligations under this Agreement or
any
other Loan Document, and there has been no development in the matters disclosed
in such filings that has had such a material adverse effect.
(g) Financial
Statements; Material Adverse Change.
The consolidated
balance sheets of the Borrower and its Subsidiaries as at December 31,
2006, and the related consolidated statements of income, retained earnings
and
cash flows of the Borrower and its Subsidiaries for the fiscal year then ended,
certified by PricewaterhouseCoopers LLP, independent public accountants, copies
of each of which have been furnished to the Lender, in each case as amended
and
restated to the date hereof, present fairly the consolidated financial position
of the Borrower and its Subsidiaries as at such date and the consolidated
results of the operations of the Borrower and its Subsidiaries for the period
ended on such date, all in accordance with GAAP consistently applied. Except
as
disclosed in the Borrower’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2006 and its Current Reports on Form 8-K filed in 2007 prior to
the
date hereof (copies of which have been furnished to the Lender), there has
been
no material adverse change in the business, condition (financial or otherwise),
results of operations or prospects of the Borrower and its Consolidated
Subsidiaries, taken as a whole, since December 31, 2006.
(h) ERISA.
(i) No
Termination Event
has occurred or is reasonably expected to occur with respect to any
Plan.
(ii) Schedule B
(Actuarial Information) to the most recent annual report (Form 5500 Series)
with respect to each Plan, copies of which have been filed with the Internal
Revenue Service and furnished to the Lender, is complete and accurate and fairly
presents the funding status of such Plan, and since the date of such
Schedule B there has been no material adverse change in such funding
status.
(iii) Neither
it nor any
member of the Controlled Group has incurred nor reasonably expects to incur
any
withdrawal liability under ERISA to any Multiemployer Plan.
(i) Taxes.
It and each of its
Subsidiaries has filed all tax returns (federal, state and local) required
to be
filed and paid all taxes shown thereon to be due, including interest and
penalties, or provided adequate reserves for payment thereof in accordance
with
GAAP other than such taxes that the Borrower or any such Subsidiary is
contesting in good faith by appropriate legal proceedings.
19
(j) Use
of
Proceeds.
The proceeds of the
Loan will be used solely to fund repurchases of certain of the Borrower’s equity
securities or to repay other short-term borrowings incurred for such
purpose.
(k) Margin
Stock.
After applying the
proceeds of the Loan, not more than 25% of the value of the assets of the
Borrower and its Subsidiaries subject to the restrictions of
Section 5.03(a) or (b) will consist of or be represented by Margin Stock.
The Borrower is not engaged in the business of extending credit for the purpose
of purchasing or carrying Margin Stock, and no proceeds of the Loan will be
used
to purchase or carry any Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock.
(l) Investment
Company.
The Borrower is not
an “investment company” or a company “controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as amended, or an
“investment advisor” within the meaning of the Investment Advisers Act of 1940,
as amended.
(m) No
Event
of Default.
No event has
occurred and is continuing that constitutes an Event of Default or that would
constitute an Event of Default (including, without limitation, an Event of
Default under Section 6.01(e)) but for the requirement that notice be given
or time elapse or both.
(n) Solvency. (i) The
fair saleable value of its assets will exceed the amount that will be required
to be paid on or in respect of the probable liability on its existing debts
and
other liabilities (including contingent liabilities) as they mature;
(ii) its assets do not constitute unreasonably small capital to carry out
its business as now conducted or as proposed to be conducted; (iii) it does
not intend to incur debts beyond its ability to pay such debts as they mature
(taking into account the timing and amounts of cash to be received by it and
the
amounts to be payable on or in respect of its obligations); and (iv) it
does not believe that final judgments against it in actions for money damages
presently pending will be rendered at a time when, or in an amount such that,
it
will be unable to satisfy any such judgments promptly in accordance with their
terms (taking into account the maximum reasonable amount of such judgments
in
any such actions and the earliest reasonable time at which such judgments might
be rendered). Its cash flow, after taking into account all other anticipated
uses of its cash (including the payments on or in respect of debt referred
to in
clause (iii) above), will at all times be sufficient to pay all such
judgments promptly in accordance with their terms.
(o) No
Material Misstatements. The
reports,
financial statements and other written information furnished by or on behalf
of
the Borrower to the Lender pursuant to or in connection with the Loan Documents
and the transactions contemplated thereby do not contain, when taken as a whole,
any untrue statement of a material fact and do not omit, when taken as a whole,
to state any fact necessary to make the statements therein, in the light of
the
circumstances under which they were made, not misleading in any material
respect.
20
ARTICLE V
COVENANTS
OF
THE BORROWER
SECTION
5.01. Affirmative
Covenants of the Borrower.
So
long as any
amount payable by the Borrower hereunder shall remain unpaid, the Borrower
will:
(a) Preservation
of Corporate Existence, Etc.
(i) Without
limiting the right of the Borrower to merge with or into or consolidate with
or
into any other corporation or entity in accordance with the provisions of
Section 5.03(c) hereof, preserve and maintain its corporate existence
in the State of Ohio and qualify and remain qualified as a foreign corporation
in each jurisdiction in which such qualification is reasonably necessary in
view
of its business and operations or the ownership of its properties and
(ii) preserve, renew and keep in full force and effect the rights,
privileges and franchises necessary or desirable in the normal conduct of its
business.
(b) Compliance
with Laws, Etc.
Comply, and cause
each of its Subsidiaries to comply, in all material respects with all applicable
laws, rules, regulations, and orders of any Governmental Authority, the
noncompliance with which would materially and adversely affect the business
or
condition of the Borrower and its Subsidiaries, taken as a whole, such
compliance to include, without limitation, compliance with the Patriot Act,
regulations promulgated by the U.S. Treasury Department Office of Foreign Assets
Control, Environmental Laws and ERISA and paying before the same become
delinquent all material taxes, assessments and governmental charges imposed
upon
it or upon its property, except to the extent compliance with any of the
foregoing is then being contested in good faith by appropriate legal
proceedings.
(c) Maintenance
of Insurance, Etc.
Maintain insurance
with responsible and reputable insurance companies or associations or through
its own program of self-insurance in such amounts and covering such risks as
is
usually carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which the Borrower operates and furnish
to the Lender, within a reasonable time after written request therefor, such
information as to the insurance carried as the Lender may reasonably
request.
(d) Inspection
Rights.
At any reasonable
time and from time to time as the Lender may reasonably request, permit the
Lender or any agents or representatives thereof to examine and make copies
of
and abstracts from the records and books of account of, and visit the properties
of, the Borrower and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrower and any of its Subsidiaries with any
of
their respective officers or directors; provided,
however,
that the Borrower
reserves the right to restrict access to any of its Subsidiaries’ generating
facilities in accordance with reasonably adopted procedures relating to safety
and security. The Lender agrees to use reasonable efforts to ensure that any
information concerning the Borrower or any of its Subsidiaries obtained by
the
Lender pursuant to this subsection (d) or subsection (g) that is not
contained in a report or other document filed with the SEC, distributed by
the
Borrower to its security holders or otherwise generally available to the public,
will, to the extent permitted by law and except as may be required by valid
subpoena or in the normal course of the Lender’s business operations be treated
confidentially by the Lender and will not be distributed or otherwise made
available by the Lender to any Person, other than the Lender’s employees,
authorized agents or representatives (including, without limitation, attorneys
and accountants).
(e) Keeping
of Books.
Keep, and cause
each Subsidiary to keep, proper books of record and account in which entries
shall be made of all financial transactions and the assets and business of
the
Borrower and each of its Subsidiaries in accordance with GAAP.
21
(f) Maintenance
of Properties.
Maintain and
preserve, and cause each of its Subsidiaries to maintain and preserve, all
of
its properties that are used or that are useful in the conduct of its business
in good working order and condition, ordinary wear and tear excepted, it being
understood that this covenant relates only to the good working order and
condition of such properties and shall not be construed as a covenant of the
Borrower or any of its Subsidiaries not to dispose of such properties by sale,
lease, transfer or otherwise.
(g) Reporting
Requirements.
Furnish, or cause
to be furnished, to the Lender, the following:
(i) promptly
after the
occurrence of any Event of Default, the statement of an authorized officer
of
the Borrower setting forth details of such Event of Default and the action
that
the Borrower has taken or proposes to take with respect thereto;
(ii) as
soon as available
and in any event within 50 days after the close of the fiscal quarter of the
Borrower ended March 31, 2007, consolidated balance sheets of the Borrower
and
its Subsidiaries as at the end of such quarter and consolidated statements
of
income of the Borrower and its Subsidiaries for the period commencing at the
end
of the previous fiscal year and ending with the end of such quarter, fairly
presenting the financial condition of the Borrower and its Subsidiaries as
at
such date and the results of operations of the Borrower and its Subsidiaries
for
such period and setting forth in each case in comparative form the corresponding
figures for the corresponding period of the preceding fiscal year, all in
reasonable detail and duly certified (subject to year-end audit adjustments)
by
the chief financial officer, treasurer, assistant treasurer or controller of
the
Borrower as having been prepared in accordance with GAAP consistently
applied;
(iii) concurrently
with
the delivery of the financial statements specified in clause (ii) above a
certificate of the chief financial officer, treasurer, assistant treasurer
or
controller of the Borrower (A) stating whether he has any knowledge of the
occurrence at any time prior to the date of such certificate of an Event of
Default not theretofore reported pursuant to the provisions of clause
(i) of this subsection (g) or of the occurrence at any time prior to
such date of any such Event of Default, except Events of Default theretofore
reported pursuant to the provisions of clause (i) of this
subsection (g) and remedied, and, if so, stating the facts with respect
thereto, and (B) setting forth in a true and correct manner, the
calculation of the ratios contemplated by Section 5.02 hereof, as of the
date of the financial statements accompanying such certificate, to show the
Borrower’s compliance with or the status of the financial covenants contained in
Section 5.02 hereof;
(iv) promptly
after the
sending or filing thereof, copies of any reports that the Borrower sends to
any
of its securityholders, and copies of all reports on Form 10-K, Form 10-Q or
Form 8-K that the Borrower or any of its Subsidiaries files with the
SEC;
(v) as
soon as possible
and in any event (A) within 30 days after the Borrower or any member of the
Controlled Group knows or has reason to know that any Termination Event
described in clause (i) of the definition of Termination Event with respect
to any Plan has occurred and (B) within 10 days after the Borrower or any member
of the Controlled Group knows or has reason to know that any other Termination
Event with respect to any Plan has occurred, a statement of the chief financial
officer of the Borrower describing such Termination Event and the action, if
any, that the Borrower or such member of the Controlled Group, as the case
may
be, proposes to take with respect thereto;
22
(vi) promptly
and in any
event within two Business Days after receipt thereof by the Borrower or any
member of the Controlled Group from the PBGC, copies of each notice received
by
the Borrower or any such member of the Controlled Group of the PBGC’s intention
to terminate any Plan or to have a trustee appointed to administer any
Plan;
(vii) promptly
and in any
event within 30 days after the filing thereof with the Internal Revenue Service,
copies of each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) with respect to each Plan;
(viii) promptly
and in any
event within five Business Days after receipt thereof by the Borrower or any
member of the Controlled Group from a Multiemployer Plan sponsor, a copy of
each
notice received by the Borrower or any member of the Controlled Group concerning
the imposition of withdrawal liability pursuant to Section 4202 of ERISA;
and
(ix) such
other
information respecting the condition or operations, financial or otherwise,
of
the Borrower or any of its Subsidiaries, including, without limitation, copies
of all reports and registration statements that the Borrower or any Subsidiary
files with the SEC or any national securities exchange, as the Lender may from
time to time reasonably request.
(h) SEC
Order.
Maintain the SEC
Order in full force and effect and comply with all terms and conditions thereof
until all amounts outstanding under the Loan Documents shall have been repaid
or
paid (as the case may be).
SECTION
5.02. Debt
to
Capitalization Ratio.
So
long as any
amount payable by the Borrower hereunder shall remain unpaid, the
Borrower
will maintain a
Debt to Capitalization Ratio of no more than 0.65 to 1.00 (determined as of
the
last day of each fiscal quarter).
SECTION
5.03. Negative
Covenants of the Borrower.
So
long as any
amount payable by the Borrower hereunder shall remain unpaid, the Borrower
will
not:
(a) Sales,
Etc.
(i) Sell, lease,
transfer or otherwise dispose of any shares of common stock of any domestic
Significant Subsidiary, whether now owned or hereafter acquired by such
Borrower, or permit any Significant Subsidiary to do so or (ii) permit such
Borrower or any Subsidiary to sell, lease, transfer or otherwise dispose of
(whether in one transaction or a series of transactions) assets located in
the
United States of America representing in the aggregate more than 15% (determined
at the time of each such transaction) of the value of all of the consolidated
fixed assets of the Borrower, as reported on the most recent consolidated
balance sheet of the Borrower, to any entity other than any of its wholly owned
direct or indirect Subsidiaries or, in the case of TE, to Centerior Funding
Corporation; provided,
however,
that this provision
shall not restrict the Mansfield Sale/Leaseback.
23
(b) Liens,
Etc.
Create or suffer to
exist, or permit any Significant Subsidiary to create or suffer to exist, any
Lien upon or with respect to any of its properties (including, without
limitation, any shares of any class of equity security of any Significant
Subsidiary), in each case to secure or provide for the payment of Indebtedness,
other than (i) liens consisting of (A) pledges or deposits in the
ordinary course of business to secure obligations under worker’s compensation
laws or similar legislation, (B) deposits in the ordinary course of
business to secure, or in lieu of, surety, appeal, or customs bonds to which
the
Borrower or Significant Subsidiary is a party, (C) pledges or deposits in
the ordinary course of business to secure performance in connection with bids,
tenders or contracts (other than contracts for the payment of money), or
(D) materialmen’s, mechanics’, carriers’, workers’, repairmen’s or other
like Liens incurred in the ordinary course of business for sums not yet due
or
currently being contested in good faith by appropriate proceedings diligently
conducted, or deposits to obtain in the release of such Liens;
(ii) purchase money liens or purchase money security interests upon or in
any property acquired or held by the Borrower or Significant Subsidiary in
the
ordinary course of business, which secure the purchase price of such property
or
secure indebtedness incurred solely for the purpose of financing the acquisition
of such property; (iii) Liens existing on the property of any Person at the
time that such Person becomes a direct or indirect Significant Subsidiary of
the
Borrower; provided
that such Liens
were not created to secure the acquisition of such Person; (iv) Liens in
existence on the date of this Agreement; (v) Liens created by any First Mortgage
Indenture, so long as (A) under the terms thereof no “event of default”
(howsoever designated) in respect of any bonds issued thereunder will be
triggered by reference to an Event of Default or Unmatured Default and (B)
no
such Liens shall apply to assets acquired from such Borrower or any Significant
Subsidiary if such assets were free of Liens (other than as a result of a
release of such Liens in contemplation of such acquisition) immediately prior
to
any such acquisition; (vi) Liens on assets of ATSI to secure Indebtedness
of ATSI, provided,
however,
that the aggregate
principal amount of Indebtedness secured by such Liens shall not at any time
exceed 60% of the depreciated book value of the property subject to such Liens;
(vii) Liens securing Stranded Cost Securitization Bonds; (viii) Liens on
cash (in an aggregate amount not to exceed $270,000,000) pledged to secure
reimbursement obligations for letters of credit issued for the account of OE;
and (ix) Liens created for the sole purpose of extending, renewing or replacing
in whole or in part Indebtedness secured by any Lien referred to in the
foregoing clauses (i) through (viii); provided,
however,
that the principal
amount of Indebtedness secured thereby shall not exceed the principal amount
of
Indebtedness so secured at the time of such extension, renewal or replacement,
and that such extension, renewal or replacement, as the case may be, shall
be
limited to all or a part of the property or Indebtedness that secured the Lien
so extended, renewed or replaced (and any improvements on such property).
(c) Mergers,
Etc.
Merge with or into
or consolidate with or into any other Person, or permit any of its Subsidiaries
to do so unless (i) immediately after giving effect thereto, no event shall
occur and be continuing that constitutes an Event of Default, (ii) the
consolidation or merger shall not materially and adversely affect the ability
of
the Borrower (or its successor by merger or consolidation as contemplated by
clause (i) of this subsection (c)) to perform its obligations
hereunder or under any other Loan Document, and (iii) in the case of any
merger or consolidation to which the Borrower is a party, the corporation formed
by such consolidation or into which the Borrower shall be merged shall assume
the Borrower’s obligations under this Agreement and the other Loan Documents in
a writing satisfactory in form and substance to the Lender.
24
(d) Compliance
with ERISA.
(i) Enter
into any “prohibited transaction” (as defined in Section 4975 of the Code,
and in ERISA) involving any Plan that may result in any liability of the
Borrower to any Person that is material to the financial position or operations
of the Borrower or (ii) allow or suffer to exist any other event or
condition known to the Borrower that results in any liability of the Borrower
to
the PBGC that is material to the financial position or operations of the
Borrower. For purposes of this subsection (d), “liability” shall not
include termination insurance premiums payable under Section 4007 of
ERISA.
(e) Use
of
Proceeds. Use
the proceeds of
the Loan for any purpose other than to fund repurchases of certain of the
Borrower’s equity securities or to repay other short-term borrowings incurred
for such purpose.
ARTICLE VI
EVENTS
OF
DEFAULT
SECTION
6.01. Events
of Default.
If
any of the
following events shall occur and be continuing (each, an “Event
of
Default”):
(a) Any
principal of, or
interest on, the Loan, or any fees or other amounts payable hereunder shall
not
be paid by the Borrower when the same become due and payable; or
(b) Any
representation
or warranty made by the Borrower (or any of its officers) in any Loan Document
or in connection with any Loan Document shall prove to have been incorrect
or
misleading in any material respect when made; or
(c) (i) The
Borrower shall fail to perform or observe any covenant set forth in
Section 5.02 or Section 5.03 or (ii) the Borrower shall fail to
perform or observe any other term, covenant or agreement contained in this
Agreement or any other Loan Document and such failure shall remain unremedied
for 30 days after written notice thereof shall have been given to the
Borrower by the Lender; or
(d) Any
material
provision of this Agreement or any other Loan Document shall at any time and
for
any reason cease to be valid and binding upon the Borrower, except pursuant
to
the terms thereof, or shall be declared to be null and void, or the validity
or
enforceability thereof shall be contested by the Borrower or any Governmental
Authority, or the Borrower shall deny that it has any or further liability
or
obligation under this Agreement or any other Loan Document; or
25
(e) The
Borrower or any
Significant Subsidiary shall fail to pay any principal of or premium or interest
on any Indebtedness (other than Indebtedness owed by the Borrower under this
Agreement) that is outstanding in a principal amount in excess of $50,000,000
in
the aggregate when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified
in
the agreement or instrument relating to such Indebtedness; or any other event
shall occur or condition shall exist under any agreement or instrument relating
to any such Indebtedness and shall continue after the applicable grace period,
if any, specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the maturity
of
such Indebtedness; or any such Indebtedness shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof; or
(f) The
Borrower or any
Significant Subsidiary shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower or any Significant Subsidiary
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or
composition or arrangement with creditors, a readjustment of its debts, in
each
case under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official for
it
or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted or acquiesced in by it),
either such proceeding shall remain undismissed or unstayed for a period of
60 consecutive days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against, or
the
appointment of a receiver, trustee, custodian or other similar official for,
it
or for any substantial part of its property) shall occur; or the Borrower or
any
Significant Subsidiary shall take any corporate action to authorize or to
consent to any of the actions set forth above in this subsection (f);
or
(g) Any
judgment or
order for the payment of money exceeding any applicable insurance coverage
by
more than $50,000,000 shall be rendered by a court of final adjudication against
the Borrower or any Significant Subsidiary and either (i) valid enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 10 consecutive days during which
a stay of enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; or
26
(h) Any
Termination
Event with respect to a Plan shall have occurred, and, 30 days after notice
thereof shall have been given to the Borrower by the Lender, (i) such
Termination Event (if correctable) shall not have been corrected and
(ii) the then Unfunded Vested Liabilities of such Plan exceed $10,000,000
(or in the case of a Termination Event involving the withdrawal of a
“substantial
employer”
(as
defined in
Section 4001(a)(2) of ERISA), the withdrawing employer’s proportionate
share of such excess shall exceed such amount), or the Borrower or any member
of
the Controlled Group as employer under a Multiemployer Plan shall have made
a
complete or partial withdrawal from such Multiemployer Plan and the Plan sponsor
of such Multiemployer Plan shall have notified such withdrawing employer that
such employer has incurred a withdrawal liability in an amount exceeding
$10,000,000; or
(i) Any
change in
Applicable Law or any Governmental Action shall occur that has the effect of
making the transactions contemplated by this Agreement or any other Loan
Document unauthorized, illegal or otherwise contrary to Applicable Law with
respect to the Borrower; or
(j) (i) The
Borrower shall fail to own directly or indirectly 100% of the issued and
outstanding shares of common stock of each Significant Subsidiary; (ii) any
Person or two or more Persons acting in concert shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended), directly
or
indirectly, of securities of the Borrower (or other securities convertible
into
such securities) representing 30% or more of the combined voting power of all
securities of the Borrower entitled to vote in the election of directors;
(ii) commencing after the date of this Agreement, individuals who as of the
date of this Agreement were directors shall have ceased for any reason to
constitute a majority of the Board of Directors of the Borrower unless the
Persons replacing such individuals were nominated by the stockholders or the
Board of Directors of the Borrower in accordance with the Borrower’s
Organizational Documents; or (iii) 90 days shall have elapsed after any
Person or two or more Persons acting in concert shall have entered into a
contract or arrangement that upon consummation will result in its or their
acquisition of, or control over, securities of the Borrower (or other securities
convertible into such securities) representing 30% or more of the combined
voting power of all securities of the Borrower entitled to vote in the election
of directors (each a “Change
of Control”).
then,
and in any
such event, the Lender may by notice to the Borrower declare the Loan and all
other amounts payable under this Agreement and the other Loan Documents to
be
forthwith due and payable, whereupon the Loan and all such amounts shall become
and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower; provided,
however,
that in the event
of an actual or deemed entry of an order for relief with respect to the Borrower
or any Significant Subsidiary under the Bankruptcy Code, the Loan and all other
amounts payable under this Agreement shall automatically become and be due
and
payable, without presentment, demand, protest or any notice of any kind, all
of
which are hereby expressly waived by the Borrower.
27
ARTICLE VII
MISCELLANEOUS
SECTION
7.01. Amendments,
Etc.
No
amendment or
waiver of any provision of this Agreement or any Note, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless
the
same shall be in writing and signed by the Lender, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
SECTION
7.02. Notices,
Etc.
Unless
specifically
provided otherwise in this Agreement, all notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic
or
cable communication) and mailed, telecopied, telegraphed, cabled or delivered,
if to the Borrower, to it at its address at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, Attention: Treasurer, Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇; if to Lender, at its
Lending Office; or, as to each party, at such other address as shall be
designated by such party in a written notice to the other party. All such
notices and communications shall, when mailed, telecopied, telegraphed or
cabled, be effective when deposited in the mails, telecopied, delivered to
the
telegraph company or delivered to the cable company, respectively, except that
notices and communications to the Lender pursuant to Article II shall not be
effective until received by the Lender.
SECTION
7.03. No
Waiver; Remedies.
No
failure on the
part of the Lender to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION
7.04. Costs
and Expenses; Indemnification.
(a) The
Borrower agrees
to pay on demand all costs and expenses incurred by the Lender in connection
with the preparation, execution, delivery, modification and amendment of this
Agreement, any Note, and the other documents to be delivered hereunder,
including, without limitation, the reasonable fees and out-of-pocket expenses
of
counsel for the Lender with respect thereto and with respect to advising the
Lender as to its rights and responsibilities under this Agreement. The Borrower
further agrees to pay on demand all costs and expenses, if any (including,
without limitation, reasonable counsel fees and expenses of counsel), incurred
by the Lender in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement, any Note and the other
documents to be delivered hereunder, including, without limitation, counsel
fees
and expenses in connection with the enforcement of rights under this
Section 7.04(a).
28
(b) If
any payment of
principal of the Loan is made other than on the last day of an Interest Period,
as a result of a prepayment pursuant to Section 2.06 or acceleration of the
maturity of any amounts owing hereunder pursuant to Section 6.01, or for
any other reason, the Borrower shall, upon demand by the Lender, pay to the
Lender any amounts required to compensate the Lender for any additional losses,
costs or expenses that it may reasonably incur as a result of such payment,
including, without limitation, any loss, cost or expense incurred by reason
of
the liquidation or redeployment of deposits or other funds acquired by the
Lender to fund or maintain the Loan. The Borrower’s obligations under this
subsection (b) shall survive the repayment of all other amounts owing
to the Lender under this Agreement and any Note.
(c) The
Borrower hereby
agrees to indemnify and hold the Lender, its Affiliates and their respective
officers, directors, employees and professional advisors (each, an “Indemnified
Person”)
harmless from and
against any and all claims, damages, liabilities, costs or expenses (including
reasonable attorney’s fees and expenses, whether or not such Indemnified Person
is named as a party to any proceeding or is otherwise subjected to judicial
or
legal process arising from any such proceeding) that any of them may incur
or
that may be claimed against any of them by any Person (including the Borrower)
by reason of or in connection with or arising out of any investigation,
litigation or proceeding related to any use or proposed use by the Borrower
of
the proceeds of the Loan, except to the extent such claim, damage, liability,
cost or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Person’s gross
negligence or willful misconduct. The Borrower’s obligations under this
Section 7.04(c) shall survive the repayment of all amounts owing to
the Lender under this Agreement and any Note. If and to the extent that the
obligations of the Borrower under this Section 7.04(c) are
unenforceable for any reason, the Borrower agrees to make the maximum payment
in
satisfaction of such obligations that are not unenforceable that is permissible
under Applicable Law or, if less, such amount that may be ordered by a court
of
competent jurisdiction.
(d) To
the extent
permitted by law, the Borrower also agrees not to assert any claim against
any
Indemnified Person on any theory of liability, for special, indirect,
consequential or punitive damages (as
opposed to
actual or direct damages) in connection with, arising
out of, or
otherwise relating to this Agreement, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Loan.
SECTION
7.05. Right
of
Set-off.
Upon
the occurrence
and during the continuance of any Event of Default the Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted
by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final, excluding,
however,
any payroll
accounts maintained by the Borrower with the Lender if and to the extent that
the Lender shall have expressly waived its set-off rights in writing in respect
of such payroll account) at any time held and other indebtedness at any time
owing by the Lender to or for the credit or the account of the Borrower against
any and all of the obligations of the Borrower now or hereafter existing under
this Agreement and any Note, whether or not the Lender shall have made any
demand under this Agreement or such Note and although such obligations may
be
unmatured. The Lender agrees promptly to notify the Borrower after any such
set-off and application made by the Lender, provided
that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of the Lender under this Section 7.05 are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
which the Lender may have.
29
SECTION
7.06. Binding
Effect.
This
Agreement shall
become effective when it shall have been executed by the Borrower and the Lender
and thereafter shall be binding upon and inure to the benefit of the Borrower,
the Lender and their respective successors and permitted assigns, except that
the Borrower shall not have the right to assign its rights or obligations
hereunder or any interest herein without the prior written consent of the
Lender.
SECTION
7.07. Assignments
and Participations.
(a) The
Lender may, with
the prior written consent of the Borrower (which consent shall not unreasonably
be withheld or delayed and shall not be required if an Event of Default then
exists), assign to one or more banks or other entities all or a portion of
its
rights under this Agreement and the other Loan Documents (including, without
limitation, all or a portion of the Loan and any Note held by it); provided,
however,
that (i) the
amount of the Loan being assigned pursuant to each such assignment (determined
as of the date of the Assignment and Acceptance with respect to such assignment)
shall in no event be less than $5,000,000 and shall be an integral multiple
of
$1,000,000, and (ii) each such assignment shall be to an Eligible Assignee.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights
hereunder have been assigned to it pursuant to such Assignment and Acceptance,
have the rights of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights hereunder have been assigned by
it
pursuant to such Assignment and Acceptance, relinquish its rights under this
Agreement (and, in the case of an Assignment and Acceptance covering all or
the
remaining portion of the Lender’s rights under this Agreement, the Lender shall
cease to be a party hereto).
(b) By
executing and
delivering an Assignment and Acceptance, the Lender and the assignee thereunder
confirm to and agree with each other and the Borrower as follows: (i) other
than as provided in such Assignment and Acceptance, the 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
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) the Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of
its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy
of this Agreement, together with copies of the financial statements referred
to
in Section 4.01(g) and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Lender and based on such documents and information
as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement; and (v) such assignee
confirms that it is an Eligible Assignee.
30
(c) Upon
its receipt of
an Assignment and Acceptance executed by an assignee representing that it is
an
Eligible Assignee, if such Assignment and Acceptance has been completed and
is
in substantially the form of Exhibit A hereto, the Lender shall give prompt
notice thereof to the Borrower and the Borrower shall deliver any Note requested
pursuant to Section 2.11 in favor of such assignee or assignor (as the case
may
be), after giving effect to such assignment.
(d) The
Lender may sell
participations to one or more banks or other entities in or to all or a portion
of its rights under this Agreement and the other Loan Documents (including,
without limitation, all or a portion of the Loan and any Note held by it);
provided,
however,
that (i) the
Lender’s obligations under this Agreement shall remain unchanged, (ii) the
Lender shall remain the holder of any Note held by it for all purposes of this
Agreement, (iii) the Lender may not subject its ability to consent to any
modification of this Agreement or any Note to the prior consent of the bank
or
other entity to which such participation was sold, except in the case of
proposed waivers or modifications with respect to interest, principal and fees
payable hereunder and under any Note and with respect to any extension of the
Termination Date, and (iv) the Borrower shall continue to deal solely and
directly with the Lender in connection with the Lender’s rights under this
Agreement.
(e) The
Lender may, in
connection with any assignment or participation or proposed assignment or
participation pursuant to this Section 7.07, disclose to the assignee or
participant or proposed assignee or participant, any information relating to
the
Borrower furnished to the Lender by or on behalf of the Borrower; provided,
that prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any confidential information
relating to the Borrower received by it from the Lender.
(f) Notwithstanding
anything to the contrary set forth herein, the Lender may assign, as collateral
or otherwise, any of its rights hereunder and under any Note (including, without
limitation, its rights to receive payments of principal and interest hereunder
and under any Note) to (i) any Federal Reserve Bank or (ii) any
Affiliate of the Lender in either case, without notice to or consent of the
Borrower.
(g) If
the Lender shall
make demand for payment under Section 2.07(a), 2.07(b) or 2.10, or
shall deliver any notice to the Borrower pursuant to Section 2.08 resulting
in the suspension of certain obligations of the Lender with respect to funding
or maintaining the Loan at the Eurodollar Rate, then, within 30 days of such
demand (if, and only if, such payment demanded under Section 2.07(a),
2.07(b) or 2.10, as the case may be, shall have been made by the
Borrower) or such notice (if such suspension is still in effect), as the case
may be, the Borrower may demand that the Lender assign in accordance with this
Section 7.07 to one or more Eligible Assignees designated by the Borrower
all (but not less than all) of the Loan within the next 15 days. If any such
Eligible Assignee designated by the Borrower shall fail to consummate such
assignment on terms acceptable to the Lender, or if the Borrower shall fail
to
designate any such Eligible Assignee for all of the Loan, then the Lender may
assign the Loan to any other Eligible Assignee in accordance with this
Section 7.07 during such 15-day period; it being understood for purposes of
this Section 7.07(g) that such assignment shall be conclusively deemed
to be on terms acceptable to the Lender, and the Lender shall be compelled
to
consummate such assignment to an Eligible Assignee designated by the Borrower,
if such Eligible Assignee shall agree to such assignment in substantially the
form of Exhibit A hereto and shall offer compensation to the Lender in an
amount equal to the sum of the outstanding principal amount of the Loan plus
all
interest accrued thereon to the date of such payment plus all other amounts
payable by the Borrower to the Lender hereunder (whether or not then due) as
of
the date of such payment accrued in favor of the Lender hereunder.
Notwithstanding the foregoing, the Lender shall not make any assignment at
any
time pursuant to this subsection (h) if, at such time, (i) an Event of Default
or Unmatured Default has occurred and is continuing or (ii) the Borrower has
not
satisfied all of its obligations hereunder.
31
SECTION
7.08. Governing
Law.
THIS
AGREEMENT AND ANY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
SECTION
7.09. Consent
to Jurisdiction; Waiver of Jury Trial.
(a) To
the fullest
extent permitted by law, the Borrower hereby irrevocably (i) submits to the
non-exclusive jurisdiction of any New York State or Federal court sitting in
New
York City and any appellate court from any thereof in any action or proceeding
arising out of or relating to this Agreement or any other Loan Document and
(ii) agrees that all claims in respect of such action or proceeding may be
heard and determined in such New York State court or in such Federal court.
The
Borrower hereby irrevocably waives, to the fullest extent permitted by law,
the
defense of an inconvenient forum to the maintenance of such action or
proceeding. The Borrower also irrevocably consents, to the fullest extent
permitted by law, to the service of any and all process in any such action
or
proceeding by the mailing by certified mail of copies of such process to the
Borrower at its address specified in Section 7.02. The Borrower agrees, to
the fullest extent permitted by law, that a final judgment in any such 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.
(b) THE
BORROWER
AND THE LENDER HEREBY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR OTHER INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER OR
THEREUNDER.
SECTION
7.10. Severability.
Any
provision of
this Agreement that is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition, unenforceability or non-authorization without invalidating
the
remaining provisions hereof or affecting the validity, enforceability or
legality of such provision in any other jurisdiction.
SECTION
7.11. Entire
Agreement.
This
Agreement and
any Notes issued hereunder constitute the entire contract among the parties
relative to the subject matter hereof. Any previous agreement among the parties
with respect to the subject matter hereof is superseded by this Agreement,
except as expressly agreed in any such previous agreement. Except as is
expressly provided for herein, nothing in this Agreement, expressed or implied,
is intended to confer upon any party other than the parties hereto any rights,
remedies, obligations or liabilities under or by reason of this
Agreement.
SECTION
7.12. Execution
in Counterparts.
This
Agreement may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an
original and all of which taken together shall constitute one and the same
agreement.
32
SECTION
7.13. USA
PATRIOT Act Notice.
The
Lender hereby
notifies the Borrower pursuant to the requirements of the Patriot Act that
it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow the Lender to identify the Borrower in accordance
with the Patriot Act.
[Signatures
to
Follow]
33
IN
WITNESS
WHEREOF,
the parties hereto
have caused this Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
|
FIRSTENERGY
CORP.
By: _____________________________________________
Name:
Title:
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇
SENIOR FUNDING, INC.
as
Lender
By: _____________________________________________
Name:
Title:
|
SCHEDULE
1
Lending
Office
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Senior Funding, Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇
▇▇▇▇▇
Phone:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
EXHIBIT
A
Form
of
Assignment and Acceptance
ASSIGNMENT
AND
ACCEPTANCE
[Date]
Reference
is made to
the Credit Agreement, dated as of March 2, 2007 (as amended, modified or
supplemented from time to time, the “Credit
Agreement”),
between
FirstEnergy
Corp.,
an Ohio
corporation (the “Borrower”),
and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Senior Funding, Inc., a Delaware corporation (the “Lender”).
Capitalized
terms
defined in the Credit Agreement are used herein with the same
meaning.
[_____________]
(the
“Assignor”)
and [____________]
(the “Assignee”)
agree as
follows:
1. The
Assignor hereby
sells and assigns, without recourse, to the Assignee, and the Assignee hereby
purchases and assumes from the Assignor, without recourse to the Assignor,
all
or a portion of the Assignor’s rights under the Credit Agreement and the other
Loan Documents as of the Effective Date (as defined in Section 5 below) which
represents the percentage interest specified on Schedule 1 of all
outstanding rights of the Lender under the Credit Agreement (the “Assigned
Interest”).
After giving
effect to such sale and assignment, the amount of the outstanding Loan owing
to
the Assignee will be as set forth in Section 2 of Schedule 1.
2. On
the Effective
Date, the Assignee will pay to the Assignor, in same day funds, at such address
and account as the Assignor shall advise the Assignee, the principal amount
of
the Loan outstanding under the Loan Documents that is being assigned hereunder,
and the sale and assignment contemplated hereby shall thereupon become
effective. From and after the Effective Date, the Assignor agrees that the
Assignee shall be entitled to all rights, powers and privileges of the Assignor
under the Credit Agreement to the extent of the Assigned Interest, including
without limitation (i) the right to receive all payments in respect of the
Assigned Interest for the period from and after the Effective Date, whether
on
account of principal, interest, fees, indemnities in respect of claims arising
after the Effective Date (subject to Sections 7.04 and 7.07 of the Credit
Agreement), increased costs, additional amounts or otherwise; (ii) the
right to vote under the Credit Agreement based on the Assigned Interest;
(iii) the right to set-off and to appropriate and apply deposits of the
Borrower as set forth in the Credit Agreement; and (iv) the right to
receive notices, requests, demands and other communications. The Assignor
agrees
that it will promptly remit to the Assignee any amount received by it in
respect
of the Assigned Interest (whether from the Borrower, or otherwise) in the
same
funds in which such amount is received by the Assignor.
A-2
3. The
Assignor
(i) represents and warrants that it is the legal and beneficial owner of
the interest being assigned by it hereunder and that such interest is free
and
clear of any adverse claim; (ii) other than as provided in this Assignment
and Acceptance, makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto;
(iii) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or the performance
or
observance by the Borrower of any of its obligations under the Credit Agreement
or any other instrument or document furnished pursuant thereto; (iv) (if
applicable) attaches the Note and requests that the Borrower exchanges such
Note
for a new Note payable to the order of the Assignee in an amount equal to
the
outstanding principal amount of the Loan, or new Notes payable to the order
of
the Assignee in an amount equal to the principal amount of the Loan assumed
by
the Assignee pursuant hereto, and a new Note payable to the order of the
Assignor in an amount equal to the principal amount of the Loan retained
by the
Assignor under the Credit Agreement, respectively, as specified on
Schedule 1 hereto; and (v) makes no other representation or warranty with
respect to the Borrower, the Loan Documents or any other instrument or document
furnished pursuant thereto, except as expressly set forth in clause (i) of
this
Section 3.
4. The
Assignee
(i) confirms that it has received a copy of the Credit Agreement, together
with copies of the financial statements referred to in Section 4.01 thereof
and such other documents and information as it has deemed appropriate to
make
its own credit analysis and decision to enter into this Assignment and
Acceptance; (ii) agrees that it will, independently and without reliance
upon the Assignor and based on such documents and information as it shall
deem
appropriate at the time, continue to make its own credit decisions in taking
or
not taking action under the Credit Agreement; (iii) confirms that it is an
Eligible Assignee; [and] (iv) specifies as its Lending Office (and address
for notices) the office set forth beneath its name on the signature pages
hereof
[and (vi) attaches the forms prescribed by the Internal Revenue Service of
the United States certifying that it is exempt from United States withholding
taxes with respect to all payments to be made to the Assignee under the Credit
Agreement and the Note].*
5. Following
the
execution of this Assignment and Acceptance by the Assignor and the Assignee,
a
copy of it will be delivered to the Borrower. The effective date of this
Assignment and Acceptance shall be the date specified on Schedule 1 hereto
(the “Effective
Date”).
6. Upon
and as of the
Effective Date (i) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment and Acceptance, have the rights
of a Lender thereunder and (ii) the Assignor shall, to the extent provided
in this Assignment and Acceptance, relinquish its rights under the Credit
Agreement.
_____________________________
|
*
|
If
the
Assignee is organized under the laws of a jurisdiction outside
the United
States.
|
A-3
7. From
and after the
Effective Date, the Borrower shall make all payments under the Credit Agreement
and the Note in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and fees with respect thereto)
to the Assignee.
8. THIS
ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
9. This
Assignment and
Acceptance may be signed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be
deemed
to be an original and all of which taken together shall constitute one and
the
same agreement.
A-4
IN
WITNESS
WHEREOF,
the parties hereto
have caused this Assignment and Acceptance to be executed by their respective
officers thereunto duly authorized, as of the date first above written, such
execution being made on Schedule 1 hereto.
|
[NAME
OF
ASSIGNOR], as Assignor
By
_____________________________
Name:
Title:
|
|
|
[NAME
OF
ASSIGNOR], as Assignor
By
_____________________________
Name:
Title:
|
|
|
Lending
Office
(and
address
for
notices):
[Address]
|
Schedule 1
to
Assignment
and
Acceptance
Dated
__________
|
Section 1.
|
|
|
Total Outstanding Principal Amount of the Loan:
|
$________________
|
|
Amount of Assigned Share:
|
$________________
|
|
Percentage
Interest:
|
________________ %
|
|
Section 2.
|
|
|
Assignee’s
Portion of Outstanding Loan:
|
$
|
|
A
Note payable
to the order of the Assignee
Dated:
____________
Principal
amount
|
$
|
|
[A Note payable to the order of the Assignor
Dated:
_____________
Principal
amount:
|
$________________
|
|
Section 3.
|
|
|
Effective Date: _____________
|
|
EXHIBIT
B
Form
of
Note
PROMISSORY
NOTE
U.S.$250,000,000 _____,
2007
FOR
VALUE RECEIVED,
the undersigned, FIRSTENERGY
CORP.,
an Ohio corporation (the “Borrower”),
HEREBY
PROMISES TO
PAY to the order of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC., a Delaware corporation
(the “Lender”)
for the account of
its Lending Office (such term and other capitalized terms herein being used
as
defined in the Credit Agreement referred to below) the principal sum of
U.S.$250,000,000 or, if less, the aggregate principal amount of the Loan made
by
the Lender to the Borrower pursuant to the Credit Agreement outstanding on
the
Termination Date, payable on the Termination Date.
The
Borrower
promises to pay interest on the unpaid principal amount of the Loan from the
date hereof until such principal amount is paid in full, at such interest rates,
and payable at such times, as are specified in the Credit
Agreement.
Both
principal and
interest are payable in lawful money of the United States of America to the
Lender, at its Lending Office, in same day funds. The Loan, and all payments
made on account of principal thereof, shall be recorded by the Lender and,
prior
to any transfer hereof, endorsed on the grid attached hereto which is part
of
this Promissory Note.
This
Promissory Note
is one of the Notes referred to in, and is entitled to the benefits of, the
Credit Agreement, dated as of March 2, 2007 (the “Credit
Agreement”),
between the
Borrower and the Lender. The Credit Agreement, among other things contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior
to
the maturity hereof upon the terms and conditions therein specified.
The
Borrower hereby
waives presentment, demand, protest and notice of any kind. No failure to
exercise, and no delay in exercising, any rights hereunder on the part of the
holder hereof shall operate as a waiver of such rights.
THIS
PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS
OF THE STATE OF NEW YORK.
| FIRSTENERGY CORP. | ||
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Prepaid
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Amount
of
Note
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