__________________________________________________________________
__________________________________________________________________
LOAN AGREEMENT
Dated as of November 21, 1994
between
NEVADA POWER COMPANY
as Borrower,
The Banks herein named
as the Banks,
and
FIRST INTERSTATE BANK OF NEVADA, N.A.
as the Administrative Agent.
__________________________________________________________________
__________________________________________________________________
TABLE OF CONTENTS
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Page
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ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS . . . . . . 1
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1.1 Defined Terms . . . . . . . . . . . . . . . . . . 1
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1.2 Use of Defined Terms . . . . . . . . . . . . . . . 24
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1.3 Accounting Terms . . . . . . . . . . . . . . . . . 24
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1.4 Rounding . . . . . . . . . . . . . . . . . . . . . 24
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1.5 Exhibits and Schedules . . . . . . . . . . . . . . 25
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1.6 References to "Borrower and its Subsidiaries" . . 25
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1.7 Miscellaneous Terms . . . . . . . . . . . . . . . 25
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ARTICLE 2
LOANS . . . . . . . . . . . . . 26
2.1 Committed Loans and Swing Line Loans - General . . 26
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2.2 Competitive Advances . . . . . . . . . . . . . . . 28
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2.3 Swing Line Loans . . . . . . . . . . . . . . . . . 31
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2.4 Base Rate Loans . . . . . . . . . . . . . . . . . 31
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2.5 CD Rate Loans . . . . . . . . . . . . . . . . . . 31
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2.6 Eurodollar Rate Loans . . . . . . . . . . . . . . 32
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2.7 Voluntary Reduction of the Commitment . . . . . . 32
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2.8 Administrative Agent's Right to Assume Funds
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Available for Advances . . . . . . . . . . . . . 33
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ARTICLE 3
PAYMENTS AND FEES . . . . . . . . . . 34
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3.1 Principal and Interest . . . . . . . . . . . . . . 34
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3.2 Commitment Fees . . . . . . . . . . . . . . . . . 36
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3.3 Agency and Arrangement Fees . . . . . . . . . . . 37
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3.4 Increased Commitment Costs . . . . . . . . . . . . 37
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3.5 CD Fees and Costs . . . . . . . . . . . . . . . . 38
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3.6 Eurodollar Fees and Costs . . . . . . . . . . . . 41
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3.7 Default Rate . . . . . . . . . . . . . . . . . . . 44
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3.8 Computation of Interest and Fees . . . . . . . . . 44
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3.9 Non-Banking Days . . . . . . . . . . . . . . . . . 44
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3.10 Manner and Treatment of Payments . . . . . . . . 45
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3.11 Funding Sources . . . . . . . . . . . . . . . . . 46
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3.12 Failure to Charge Not Subsequent Waiver . . . . . 46
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3.13 Administrative Agent's Right to Assume Payments
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Will be Made by Borrower . . . . . . . . . . . . 47
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3.14 Fee Determination Detail . . . . . . . . . . . . 47
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3.15 Survivability . . . . . . . . . . . . . . . . . . 47
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES . . . . . . . 48
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4.1 Existence and Qualification; Power; Compliance
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With Laws . . . . . . . . . . . . . . . . . . . 48
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4.2 Authority; Compliance With Other Agreements and
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Instruments and Government Regulations . . . . . 48
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4.3 No Governmental Approvals Required . . . . . . . . 49
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4.4 Subsidiaries . . . . . . . . . . . . . . . . . . . 49
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4.5 Financial Statements . . . . . . . . . . . . . . . 49
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4.6 No Other Liabilities; No Material Adverse
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Effect . . . . . . . . . . . . . . . . . . . . . 50
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4.7 Title to and Location of Property . . . . . . . . 50
---------------------------------
4.8 Intangible Assets . . . . . . . . . . . . . . . . 50
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4.9 Governmental Regulation . . . . . . . . . . . . . 50
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4.10 Litigation . . . . . . . . . . . . . . . . . . . 50
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4.11 Binding Obligations . . . . . . . . . . . . . . . 51
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4.12 No Default . . . . . . . . . . . . . . . . . . . 51
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4.13 Pension Plans . . . . . . . . . . . . . . . . . 51
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4.14 Regulations G, U and X . . . . . . . . . . . . . 51
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4.15 Disclosure . . . . . . . . . . . . . . . . . . . 51
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4.16 Tax Liability . . . . . . . . . . . . . . . . . . 52
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4.17 Pari Passu Status . . . . . . . . . . . . . . . . 52
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4.18 Hazardous Materials . . . . . . . . . . . . . . . 52
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ARTICLE 5
AFFIRMATIVE COVENANTS
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(OTHER THAN INFORMATION AND
--------------------------
REPORTING REQUIREMENTS) . . . . . . . . 53
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5.1 Payment of Taxes and Other Potential Liens . . . . 53
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5.2 Preservation of Existence . . . . . . . . . . . . 53
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5.3 Maintenance of Properties . . . . . . . . . . . . 53
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5.4 Maintenance of Insurance . . . . . . . . . . . . . 53
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5.5 Compliance With Laws . . . . . . . . . . . . . . . 54
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5.6 Inspection Rights . . . . . . . . . . . . . . . . 54
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5.7 Keeping of Records and Books of Account . . . . . 54
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5.8 Compliance With Agreements . . . . . . . . . . . . 54
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5.9 Use of Proceeds . . . . . . . . . . . . . . . . . 54
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5.10 Hazardous Materials Laws . . . . . . . . . . . . 55
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ARTICLE 6
NEGATIVE COVENANTS . . . . . . . . . . 56
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6.1 Disposition of Property . . . . . . . . . . . . . 56
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6.2 Mergers . . . . . . . . . . . . . . . . . . . . . 56
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6.3 Investments and Acquisitions . . . . . . . . . . . 56
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6.4 Hostile Tender Offers . . . . . . . . . . . . . . 56
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6.5 Distributions . . . . . . . . . . . . . . . . . . 57
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6.6 ERISA Compliance . . . . . . . . . . . . . . . . . 57
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6.7 Change in Nature of Business . . . . . . . . . . . 57
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6.8 Indebtedness and Contingent Obligations . . . . . 57
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6.9 Transactions with Affiliates . . . . . . . . . . . 57
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6.10 Common Equity . . . . . . . . . . . . . . . . . . 58
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6.11 Total Debt to Total Capitalization . . . . . . . 58
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6.12 Amendments to Certain Agreements . . . . . . . . 58
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ARTICLE 7
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INFORMATION AND REPORTING REQUIREMENTS . . . . . 59
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7.1 Financial and Business Information . . . . . . . . 59
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ARTICLE 8
CONDITIONS . . . . . . . . . . . 61
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8.1 Initial Advances and Swing Line Loans . . . . . . 61
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8.2 Any Advance or Swing Line Loan . . . . . . . . . . 63
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ARTICLE 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT . 64
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9.1 Events of Default . . . . . . . . . . . . . . . . 64
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9.2 Remedies Upon Event of Default . . . . . . . . . . 66
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ARTICLE 10
THE ADMINISTRATIVE AGENT . . . . . . . . 69
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10.1 Appointment and Authorization . . . . . . . . . . 69
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10.2 Administrative Agent and Affiliates . . . . . . . 69
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10.3 Proportionate Interest of the Banks in any
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Collateral . . . . . . . . . . . . . . . . . . . 69
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10.4 Banks' Credit Decisions . . . . . . . . . . . . . 70
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10.5 Action by Administrative Agent; Etc. . . . . . . 70
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10.6 Liability of Administrative Agent and Arranger . 71
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10.7 Indemnification . . . . . . . . . . . . . . . . . 73
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10.8 Successor Administrative Agent . . . . . . . . . 73
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10.9 No Obligations of Borrower . . . . . . . . . . . 74
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10.10 The Swing Line . . . . . . . . . . . . . . . . . 74
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ARTICLE 11
MISCELLANEOUS . . . . . . . . . . . 76
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11.1 Cumulative Remedies; No Waiver . . . . . . . . . 76
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11.2 Amendments; Consents . . . . . . . . . . . . . . 76
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11.3 Costs, Expenses and Taxes . . . . . . . . . . . . 77
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11.4 Nature of Banks' Obligations . . . . . . . . . . 77
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11.5 Survival of Representations and Warranties . . . 78
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11.6 Notices . . . . . . . . . . . . . . . . . . . . . 78
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11.7 Execution of Loan Documents; Counterparts . . . . 78
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11.8 Binding Effect; Assignment . . . . . . . . . . . 79
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11.9 Setoff Rights . . . . . . . . . . . . . . . . . . 82
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11.10 Sharing of Setoffs . . . . . . . . . . . . . . . 82
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11.11 Indemnity by Borrower . . . . . . . . . . . . . 83
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11.12 Nonliability of the Banks . . . . . . . . . . . 83
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11.13 No Third Parties Benefited . . . . . . . . . . . 85
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11.14 Termination of Existing Loan Documents . . . . . 85
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11.15 Further Assurances . . . . . . . . . . . . . . . 85
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11.16 Integration . . . . . . . . . . . . . . . . . . 78
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11.17 Governing Law . . . . . . . . . . . . . . . . . 78
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11.18 Severability of Provisions . . . . . . . . . . . 79
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11.19 Independent Covenants . . . . . . . . . . . . . 79
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11.20 Headings . . . . . . . . . . . . . . . . . . . . 79
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11.21 Time of the Essence . . . . . . . . . . . . . . 79
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11.22 Purported Oral Amendments . . . . . . . . . . . 79
11.23 Jury Trial Waiver . . . . . . . . . . . . . . . 79
Exhibits
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A - Commitment Assignment and Acceptance
B - Committed Advance Note
C - Competitive Advance Note
D - Competitive Bid
E - Competitive Bid Request
F - Compliance Certificate
G - Opinion of Counsel
H - Request for Loan
I - Swing Line Note
Schedules
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1.1 Pro Rata Shares of the Main Commitment
4.4 Subsidiaries and other Investments
4.10 Litigation
4.13 ERISA
4.17 Existing Liens and Rights of Others
4.18 Hazardous Materials
6.8 Existing Indebtedness and Contingent Obligations
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LOAN AGREEMENT
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Dated as of November 21, 1994
This LOAN AGREEMENT ("Agreement") is entered into by
and between Nevada Power Company, a Nevada corporation
("Borrower"), and each lender whose name is set forth on the
signature pages hereof or which may hereafter execute and
deliver a Commitment Assignment and Acceptance with respect to
this Agreement pursuant to Section 11.8 (collectively, the
"Banks" and individually, a "Bank"), and First Interstate Bank
of Nevada, N.A., as Administrative Agent. In consideration of
the mutual covenants and agreements herein contained, the
parties hereto covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
--------------------------------
1.1 Defined Terms. As used in this Agreement, the
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following terms shall have the meanings set forth below:
"Acquisition" means any transaction, or any
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series of related transactions, by which Borrower and/or
any of its Subsidiaries directly or indirectly
(i) acquires any going business or all or substantially
all of the assets of any firm, partnership, joint ven-
ture, corporation or division thereof, whether through
purchase of assets, merger or otherwise, or (ii) acquires
(in one transaction or as the most recent transaction in a
series of transactions) control of at least a majority in
ordinary voting power of the securities of a corporation
which have ordinary voting power for the election of
directors, or (iii) acquires control of a 50% or more
ownership interest in any partnership or joint venture.
"Administrative Agent" means First Interstate
--------------------
Bank of Nevada, N.A., when acting in its capacity as the
Administrative Agent under any of the Loan Documents, and
any successor Administrative Agent.
"Administrative Agent's Office" means the
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Administrative Agent's address as set forth on the
signature pages of this Agreement, or such other address
as the Administrative Agent hereafter may designate by
written notice to Borrower and the Banks.
"Advance" means any Advance made or to be made
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by any Bank to Borrower as provided in Article 2, and
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includes each Base Rate Advance, each Eurodollar Rate
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-1-
Advance, each CD Rate Advance, and each Competitive
Advance.
"Affiliate" means, as to any Person, any other
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Person which directly or indirectly controls, or is under
common control with, or is controlled by, such Person.
As used in this definition, "control" (and the correlative
terms, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to
direct or cause the direction of management or policies
(whether through ownership of securities or partnership or
other ownership interests, by contract or otherwise);
provided that, in any event, any Person that owns, directly
--------
or indirectly, 5% or more of the securities having ordinary
voting power for the election of directors or other
governing body of a corporation having 100 or more record
owners of such securities (other than securities having such
power only by reason of the happening of a contingency), or
5% or more of the partnership or other ownership interests
of any other Person having 100 or more owners of such
partnership or other ownership interests (other than as a
limited partner of such other Person), will be deemed to
control such corporation or other Person.
"Agreement" means this Loan Agreement, either
---------
as originally executed or as it may from time to time be
supplemented, modified, amended, restated or extended.
"Arranger" means First Interstate Bank, Ltd.
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"Bank" means any of the banks signatory to
----
this Agreement, their successors and, upon the effective
date after registration with the Administrative Agent
pursuant to Section 11.8 of a Commitment Assignment and
----
Acceptance executed by an Eligible Assignee, such Eligible
Assignee.
"Banking Day" means any Monday, Tuesday,
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Wednesday, Thursday or Friday, other than a day on which
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banks are authorized or required to be closed in Nevada or
New York.
"Base Rate" means, as of any date of
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determination, the higher of (a) the Prime Rate or (b) the
------
Federal Funds Rate plus one half of one percent per annum.
----
"Base Rate Advance" means a Committed Advance
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made hereunder and designated as a Base Rate Advance in
accordance with Article 2.
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-2-
"Base Rate Loan" means a Committed Loan made
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hereunder and designated as a Base Rate Loan in accordance
with Article 2.
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"Base Rate Spread" means an additional
----------------
component of interest to be added to the Base Rate in
determining the interest rate payable with respect to Base
Rate Loans. As of each date of determination when the
aggregate principal Indebtedness evidenced by the Committed
Advance Notes and the Swing Line Note is more than 50% of
the then applicable Commitment, the Base Rate Spread shall
be .0625%. As of each other date of determination, the Base
Rate Spread shall be 0.00%.
"Borrower" means Nevada Power Company, a
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Nevada corporation, and its successors and permitted assigns.
"Capital Lease" means, as to any Person, a
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lease of any Property by that Person as lessee that is, or
should be in accordance with Financial Accounting Standards
Board Statement No. 13, recorded as a "capital lease" on the
balance sheet of that Person prepared in accordance with
GAAP.
"Cash" means, when used in connection with
----
any Person, all monetary and nonmonetary items owned by
that Person that are treated as cash in accordance with
GAAP, consistently applied.
"Cash Equivalents" means, when used in
----------------
connection with any Person, that Person's Investments in:
(a) Government Securities due within one year
after the date of the making of the Investment;
(b) readily marketable direct obligations of any
State of the United States of America or any
political subdivision of any such State given on
the date of such investment a credit rating of at
least Aa by Moody's Investors Service, Inc. or AA
by Standard & Poor's Corporation, in each case due
within one year after the date of the making of the
Investment;
(c) certificates of deposit issued by, bank deposits
in, eurodollar deposits through, bankers' accep-
tances of, and reverse repurchase agreements
covering Government Securities executed by, any
Bank or any other bank, savings and loan or savings
bank doing business in and incorporated under the
Laws of the United States of America
-3-
or any State thereof and having on the date of such
Investment combined capital, surplus and undivided
profits of at least $250,000,000, in each case due
within one year after the date of the making of the
Investment;
(d) certificates of deposit issued by, bank
deposits in, eurodollar deposits through, bankers'
acceptances of, and reverse repurchase agreements
covering Government Securities executed by, any
branch or office located in the United States of
America of a bank incorporated under the Laws of
any jurisdiction outside the United States of
America having on the date of such
Investment combined capital, surplus and undivided
profits of at least $500,000,000, in each case due
within one year after the date of the making of the
Investment; and
(e) readily marketable commercial paper of
corporations doing business in and incorporated
under the Laws of the United States of America or
any State thereof given on the date of such
Investment the highest credit rating by Moody's
Investors Service, Inc. and Standard & Poor's
Corporation, in each case due within 270 days after
the date of the making of the Investment.
"CD Assessment Rate" means, with respect to
------------------
any CD Rate Loan, the percentage representing the maximum
per annum cost to the Administrative Agent (disregarding any
offsetting amounts that may be available to the
Administrative Agent to decrease such cost to the extent
that such offsetting amounts arose out of transactions other
than those contemplated by this Agreement) of providing
insurance for new nonpersonal time deposits (including,
---------
without limitation, insurance provided by the Federal
Deposit Insurance Corporation for such deposits) as of the
Banking Day prior to the first day of the applicable
CD Period. The determination by the Administrative Agent of
any applicable CD Assessment Rate shall be conclusive in the
absence of manifest error.
"CD Banking Day" means any Banking Day on
--------------
which dealings are conducted by New York City certificate of
deposit dealers.
"CD Base Rate" means, with respect to any
------------
CD Rate Loan, the rate per annum determined by the
Administrative Agent to be equal to the average (rounded
upward to the next 1/100 of 1%) of the bid (secondary)
-4-
rates quoted to the Administrative Agent by two recognized
New York City certificate of deposit dealers, selected by the
Administrative Agent, at or about 8:00 a.m. on the Banking
Day prior first day of the applicable CD Period, for the
purchase at face value of certificates of deposit issued by
the Administrative Agent in an aggregate amount
approximately equal to the amount of such CD Rate Loan and
for a period of time comparable to the number of days in the
applicable CD Period. The determination of the CD Base Rate
by the Administrative Agent shall be conclusive in the
absence of manifest error.
"CD Period" means, as to each CD Rate Loan,
---------
the period commencing on the date specified by Borrower pur-
suant to Section 2.1(c) and ending 30 days, 60 days, 90 days
-----
or 180 days thereafter, as specified by Borrower in the
applicable Request for Loan or Request for Redesignation of
Loans, provided that:
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(a) The first day of any CD Period
shall be a CD Banking Day;
(b) Any CD Period that would otherwise
end on a day that is not a CD Banking Day shall be extended
to the next succeeding CD Banking Day; and
(c) No CD Period shall extend beyond
the Maturity Date.
"CD Rate" means, with respect to any CD Rate
-------
Loan, the rate (rounded upward to the next 1/100 of 1%)
determined to be equal to the sum of:
(a) The CD Base Rate divided by [1
----------
minus the CD Reserve Percentage]; plus
----- ----
(b) The CD Assessment Rate.
"CD Rate Advance" means a Committed Advance
---------------
made hereunder and designated as a CD Rate Advance in
accordance with Article 2.
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"CD Rate Loan" means a Committed Loan made
------------
hereunder and designated or redesignated as a CD Rate Loan
in accordance with Article 2.
---------
"CD Rate Spread" means an additional
--------------
component of interest (which may vary over the term of any
CD Rate Loan) to be added to the CD Rate in determining the
interest rate payable with respect to CD Rate Loans. As of
each date of determination, the CD Rate Spread equals
-5-
the interest rate per annum set forth below opposite the
rating which is the lower of the credit ratings assigned to
the First Mortgage Bonds by Moody's Investors Service, Inc.
and Standard & Poor's Corporation, on that date:
Credit Rating CD Rate Spread
------------- --------------
S&P Moody's
--- -------
A- or A3 (or higher) .3750%
BBB+ or Baa1 .5000%
BBB or Baa2 .5250%
BBB- or Baa3 .6750%
BB+ or Ba1 (or lower) .8750%
provided that, as of each date of determination when
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the aggregate principal Indebtedness evidenced by the
Committed Advance Notes and the Swing Line Note is more than
50% of the then applicable Commitment, the CD Rate Spread at
each pricing level set forth above shall be increased by
.0625% per annum.
"CD Reserve Percentage" means, with respect
---------------------
to any CD Rate Loan, the percentage representing the maximum
aggregate incremental reserve, asset or special deposit
requirements of the Administrative Agent (disregarding any
offsetting amounts that may be available to the
Administrative Agent to decrease such requirements to the
extent that such offsetting amounts arose out of
transactions other than those contemplated by this
Agreement) under Regulation D and any other applicable Law
or regulation with respect to new nonpersonal time deposits
in an aggregate amount equal to the amount of such CD Rate
Loan and for a time period comparable to the number of days
in the applicable CD Period. The determination by the
Administrative Agent of any applicable CD Reserve Percentage
shall be conclusive in the absence of manifest error.
"Certificate of a Responsible Official" means
-------------------------------------
a certificate signed by a Responsible Official of the Person
providing the certificate.
"Closing Date" means the time and Banking Day
------------
on which the conditions set forth in Section 8.1 are
---
satisfied.
"Code" means the Internal Revenue Code of 1986,
----
as amended or replaced and as in effect from time to time.
-6-
"Commitment" means, the sum of the Main
----------
Commitment and the Swing Line Commitment.
"Commitment Assignment and Acceptance" means
------------------------------------
a Commitment Assignment and Acceptance executed by a Bank
and an Eligible Assignee substantially in the form of
Exhibit A and registered with the Administrative Agent
---------
pursuant to Section 11.8.
----
"Committed Advance" means an Advance made to
-----------------
Borrower by any Bank in accordance with its Pro Rata Share
of the Main Commitment pursuant to Section 2.1.
---
"Committed Advance Note" means any of the
----------------------
promissory notes made by Borrower in favor of a Bank
evidencing Committed Advances under that Bank's Pro Rata
Share of the Main Commitment, substantially in the form of
Exhibit B, either as originally executed or as the same may
---------
from time to time be supplemented, modified, amended,
renewed, extended or supplanted.
"Committed Loans" means Loans that are
---------------
comprised of Committed Advances.
"Common Stock" means the $1.00 par value
------------
common stock of Borrower.
"Competitive Advance" means an Advance made
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to Borrower by any Bank pursuant to a Competitive Bid under
Section 2.2 (and not in accordance with that Bank's Pro Rata
---
Share of the Main Commitment).
"Competitive Advance Note" means any of the
------------------------
promissory notes made by Borrower in favor of a Bank to
evidence Competitive Advances made by that Bank
substantially in the form of Exhibit C, either as originally
---------
executed or as the same may from time to time be
supplemented, modified, amended, renewed or extended.
"Competitive Bid" means (a) a written bid to
---------------
provide a Competitive Advance submitted to the
Administrative Agent substantially in the form of Exhibit D,
---------
and properly completed to provide all information required
to be included therein or (b), at the election of any Bank,
a bid to provide a Competitive Advance submitted to the
Administrative Agent by that Bank by telephone which, if so
made, shall be made by a Responsible Official of that Bank
and deemed to have been made incorporating the substance of
Exhibit D.
---------
-7-
"Competitive Bid Request" means (a) a written
-----------------------
request submitted by Borrower to the Administrative Agent to
provide a Competitive Bid, substantially in the form of
Exhibit E, signed by a Responsible Official of Borrower and
---------
properly completed to provide all information required to be
included therein or (b), at the election of Borrower, a
telephonic request by Borrower to the Administrative Agent
to provide a Competitive Bid which, if so made, shall be
made by a Responsible Official of Borrower and deemed to
have been made incorporating the substance of Exhibit E.
---------
"Compliance Certificate" means a certificate
----------------------
in the form of Exhibit F, properly completed and signed by a
---------
Senior Officer of Borrower.
"Contingent Obligation" means, as to any Per-
---------------------
son, any (a) direct or indirect guarantee of Indebtedness
of, or other obligation performable by, any other Person,
including any endorsement (other than for collection or
---------
deposit in the ordinary course of business), co-making or
sale with recourse of the obligations of any other Person,
or (b) assurance given to an obligee with respect to the
performance of an obligation by, or the financial condition
of, any other Person, whether direct, indirect or
contingent, including any purchase or repurchase agreement
---------
covering such obligation or any collateral security
therefor, any agreement to provide funds (by means of loans,
capital contributions or otherwise) to such other Person,
any agreement to support the solvency or level of any
balance sheet item to such other Person, or any "keep-well",
"take-or-pay", "through put" or other arrangement of what-
ever nature having the effect of assuring or holding harm-
less any obligee against loss with respect to any obligation
of such other Person, or (c) any obligation of a partnership
or joint venture of which such Person is a partner or joint
venturer. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable
amount of the related primary obligation (unless the
Contingent Obligation is limited by its terms to a lesser
amount, in which case to the extent of such amount) or, if
not stated or determinable, the maximum reasonably antici-
pated liability in respect thereof as determined by the
Person in good faith.
"Contractual Obligation" means, as to any
----------------------
Person, any provision of any outstanding Securities issued
by that Person or of any material agreement, instrument or
undertaking to which that Person is a party or by which it
or any of its Property is bound.
-8-
"Debtor Relief Laws" means the Bankruptcy
------------------
Code of the United States of America, as amended from time
to time, and all other applicable liquidation, conservator-
ship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws
from time to time in effect affecting the rights of cred-
itors generally.
"Default" means any Event of Default or any
-------
event that, with the giving of any applicable notice or
passage of time specified in Section 9.1, or both, would be
---
an Event of Default.
"Default Rate" means the interest rate
------------
described in Section 3.7.
---
"Designated Deposit Account" means a demand
--------------------------
deposit account to be maintained by Borrower with the
Administrative Agent, as from time to time designated by
Borrower by written notification to the Administrative
Agent.
"Designated Employee" means any natural
-------------------
Person designated by Borrower as an employee of Borrower
authorized to make requests for Loans under this Agreement
on behalf of Borrower pursuant to a writing delivered to
Administrative Agent which conforms with Section 11.2.
----
"Designated Eurodollar Market" means, with
----------------------------
respect to any Eurodollar Rate Loan, the London interbank
market.
"Disposition" means the sale, transfer or
-----------
other disposition in any single transaction or series of
related transactions of any asset, or group of related
assets, of Borrower or any of its Subsidiaries that has or
have at the date of the Disposition either a book value or
fair market value (which shall be deemed to be equal to the
sales price for such asset or assets upon a sale to a Person
that is not an Affiliate of Borrower) equal to or greater
than $50,000,000, other than (i) the sale or other
----------
disposition of inventory in the ordinary course of business,
(ii) the sale or other disposition of equipment that is
replaced by equipment performing substantially the same
function not later than thirty (30) days after such sale or
disposition, and (iii) the sale or other disposition of Cash
Equivalents in the ordinary course of business.
"Distribution" means, with respect to any shares
------------
of capital stock or any warrant or right to acquire shares
-9-
of capital stock or any other equity security issued
by a Person, (a) the retirement, redemption, purchase, or
other acquisition for value (other than for common stock of
such Person) by such Person of any such security, (b) the
declaration or (without duplication) payment by such Person
of any dividend in Cash or in Property (other than in common
stock of such Person) on or with respect to any such
security, (c) any Investment by such Person in the holder of
any such security where such Investment is made in lieu of,
or to avoid characterization as, a Distribution described in
clauses (a) or (b) above, and (d) any other payment by such
--- ---
Person constituting a distribution under applicable Laws
with respect to such security.
"dollars" or "$" means United States dollars.
------- -
"Eligible Assignee" means (a) with respect to
-----------------
any Bank, any Affiliate of that Bank, (b) any other Person
(including any Bank) approved in writing by Borrower, which
---------
approval shall not be unreasonably withheld.
"ERISA" means the Employee Retirement Income
-----
Security Act of 1974, and any regulations issued pursuant
thereto, as amended or replaced and as in effect from time
to time.
"ERISA Affiliate" means, with respect to any
---------------
Person, any other Person (or any trade or business, whether
or not incorporated) that is under common control with that
Person within the meaning of Section 414 of the Code.
"Eurodollar Banking Day" means any Banking
----------------------
Day on which dealings in dollar deposits are conducted by
and among banks in the Designated Eurodollar Market.
"Eurodollar Base Rate" means, with respect to
--------------------
any Eurodollar Rate Loan, the interest rate per annum
(determined solely by the Administrative Agent and rounded
upward to the next 1/100 of 1%) at which deposits in dollars
are offered to prime banks by major banks in the Designated
Eurodollar Market at or about 11:00 a.m. local time in the
Designated Eurodollar Market, two (2) Eurodollar Banking
Days before the first day of the applicable Eurodollar
Period in an aggregate amount approximately equal to the
amount of such Eurodollar Rate Loan and for a period of time
comparable to the number of days in the applicable
Eurodollar Period. The determination of the Eurodollar Rate
by the Administrative Agent shall be conclusive in the
absence of manifest error.
-10-
"Eurodollar Lending Office" means, as to each
-------------------------
Bank, its office or branch so designated by written notice
to Borrower and the Administrative Agent as its Eurodollar
Lending Office. If no Eurodollar Lending Office is desig-
nated by a Bank, its Eurodollar Lending Office shall be its
office at its address for purposes of notices hereunder.
"Eurodollar Obligations" means eurocurrency
----------------------
liabilities, as defined in Regulation D.
"Eurodollar Period" means, as to each
-----------------
Eurodollar Rate Loan, the period commencing on the date
specified by Borrower pursuant to Section 2.1(c) and ending
------
1, 2, 3 or 6 months thereafter, as specified by Borrower in
the applicable Request for Loan; provided that:
--------
(a) The first day of any Eurodollar Period shall
be a Eurodollar Banking Day;
(b) Any Eurodollar Period that would otherwise
end on a day that is not a Eurodollar Banking Day
shall be extended to the next succeeding Eurodollar
Banking Day unless such Eurodollar Banking Day
falls in another calendar month, in which case such
Eurodollar Period shall end on the next preceding
Eurodollar Banking Day;
(c) No Eurodollar Period shall extend beyond the
Maturity Date.
"Eurodollar Rate" means, with respect to any
---------------
Eurodollar Rate Loan, the interest rate (rounded upward to
the next 1/100 of 1%) determined to be equal to the
Eurodollar Base Rate divided by [1 minus the Eurodollar
------- -- -----
Reserve Percentage].
"Eurodollar Rate Advance" means an Advance
-----------------------
made hereunder and designated as a Eurodollar Rate Advance
in accordance with Article 2.
---------
"Eurodollar Rate Loan" means a Committed Loan
--------------------
made hereunder and designated as a Eurodollar Rate Loan in
accordance with Article 2.
---------
"Eurodollar Rate Spread" means an additional
----------------------
component of interest (which may vary over the term of any
Eurodollar Rate Loan) to be added to the Eurodollar Rate in
determining the interest rate payable with respect to
Eurodollar Rate Loans. As of each date of determination,
the Eurodollar Rate Spread equals the interest rate per
-11-
annum set forth below opposite the rating which is the lower
of the credit ratings assigned to the First Mortgage Bonds
by Moody's Investors Service, Inc. and Standard & Poor's
Corporation, on that date:
Credit Rating Eurodollar Rate Spread
------------- ----------------------
S&P Moody's
--- -------
A- or A3 (or higher) .2500%
BBB+ or Baa1 .3750%
BBB or Baa2 .4000%
BBB- or Baa3 .5500%
BB+ or Ba1 or lower .7500%
provided that, as of each date of determination when
--------
the aggregate principal Indebtedness evidenced by the
Committed Advance Notes and the Swing Line Note is more than
50% of the then applicable Commitment, the Eurodollar Rate
Spread at each pricing level set forth above shall be
increased by .0625% per annum.
"Eurodollar Reserve Percentage" means, with
-----------------------------
respect to any Eurodollar Rate Loan, the percentage appli-
cable as of the date of determination of the Eurodollar Base
Rate representing the aggregate reserve requirements of the
Administrative Agent (disregarding any offsetting amounts
that may be available to the Administrative Agent to
decrease such requirements to the extent that such
offsetting amounts arose out of transactions other than
those contemplated by this Agreement) under Regulation D and
any other applicable Laws with respect to Eurodollar
Obligations in an aggregate amount equal to the amount of
such Eurodollar Rate Loan and for a time period comparable
to the number of months in the applicable Eurodollar Period.
The determination by the Administrative Agent of any
applicable Eurodollar Reserve Percentage shall be presumed
correct in the absence of manifest error.
"Event of Default" shall have the meaning
----------------
provided in Section 9.1.
---
"Existing Loan Documents" means the loan
-----------------------
documents executed in connection with that certain Loan
Agreement dated as of February 13, 1992 among Borrower, the
Banks (as therein defined) therein named and First
Interstate Bank of Nevada, N.A., as Administrative Agent, as
amended.
"Federal Funds Rate" means, as of any date of
------------------
determination, the interest rate per annum equal to the
-12-
weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day
(or, if such day is not a Banking Day, for the next
preceding Banking Day) by the Federal Reserve Bank of New
York in its statistical release H-15 or, if such rate is not
so published for any day which is a Banking Day, the average
of the quotations for such day on such transactions, as
received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"First Mortgage Bonds" means those certain
--------------------
First Mortgage Bonds of Borrower issued pursuant to the
Indenture.
"Fiscal Quarter" means the fiscal quarter of
--------------
Borrower consisting of a three month fiscal period ending on
each March 31, June 30, September 30 and December 31.
"Fiscal Year" means the fiscal year of
-----------
Borrower consisting of a twelve month fiscal period ending
on each December 31.
"GAAP" means, as of any date of
----
determination, accounting principles set forth as "generally
accepted" in then currently effective Statements of the
Auditing Standards Board of the American Institute of
Certified Public Accountants, or, if no such Statements are
then in effect, that are then approved by such other entity
as may be approved by a significant segment of the
accounting profession in the United States of America. The
term "consistently applied," as used in connection
--------------------
therewith, means that the accounting principles applied are
consistent in all material respects to those applied at
prior dates or for prior periods.
"Government Securities" means readily market-
---------------------
able direct full faith and credit obligations of the United
States of America or obligations unconditionally guaranteed
by the full faith and credit of the United States of America.
"Governmental Agency" means (a) any foreign,
-------------------
federal, state, county or municipal government, or political
subdivision thereof, (b) any governmental or
quasi-governmental agency, authority, board, bureau,
commission, department, instrumentality or public body,
(c) any court or administrative tribunal or (d) with respect
to any Person, any arbitration tribunal or other
-13-
non-governmental authority to whose jurisdiction that Person
has consented.
"Hazardous Materials" means substances
-------------------
defined as hazardous substances pursuant to the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. 9601 et seq., or as
hazardous, toxic or pollutant pursuant to the Hazardous
Materials Transportation Act, 49 U.S.C. 1801, et seq., the
Resource Conservation and Recovery Act, 42 U.S.C. 6901,
et seq., or any other applicable Law governing environmental
health and hygiene, in each case as such Laws are amended
from time to time.
"Hazardous Materials Laws" means all federal,
------------------------
state or local laws, ordinances, rules or regulations
governing the disposal of Hazardous Materials applicable to
any of the Property.
"Indebtedness" means, as to any Person,
------------
(a) all indebtedness of such Person for borrowed money,
(b) that portion of the obligations of such Person under
Capital Leases which is properly recorded as a liability on
a balance sheet of that Person prepared in accordance with
Generally Accepted Accounting Principles, (c) any obligation
of such Person that is evidenced by a promissory note or
other instrument representing an extension of credit to such
Person, whether or not for borrowed money, (d) any
obligation of such Person for the deferred purchase price of
Property or services (other than trade or other accounts
----------
payable in the ordinary course of business in accordance
with customary terms), (e) any obligation of such Person
that is secured by a Lien on assets of such Person, whether
or not that Person has assumed such obligation or whether or
not such obligation is non-recourse to the credit of such
Person, but only to the extent of the fair market value of
the assets so subject to the Lien, (f) obligations of such
Person arising under acceptance facilities or under
facilities for the discount of accounts receivable of such
Person and (g) obligations of such Person for unreimbursed
draws under letters of credit issued for the account of such
Person.
"Indenture" means that certain Indenture of
---------
Mortgage and Deed of Trust dated October 1, 1953 between
Borrower (under its prior name, Southern Nevada Power Co.)
and First Interstate Bank of Nevada, N.A. (under its prior
name, First National Bank of Nevada, Reno, Nevada), as
Trustee, as amended as of the Closing Date.
-14-
"Intangible Assets" means assets that are
-----------------
considered intangible assets under GAAP, including (a) any
---------
write-up in book value of any asset subsequent to its
acquisition and (b) customer lists, goodwill, computer
software, copyrights, trade names, trademarks, patents,
unamortized deferred charges, unamortized debt discount,
capitalized research and development costs and other
intangible assets.
"Interest Differential" means, with respect
---------------------
to any prepayment of a CD Rate Loan or a Eurodollar Rate
Loan on a day other than the last day of the applicable
Interest Period and with respect to the failure to borrow a
CD Rate Loan or a Eurodollar Rate Loan on the date or in the
amount specified in a Request for Loan, (a) the per annum
interest rate payable with respect to that CD Rate Loan or
Eurodollar Rate Loan as of the date of the prepayment or
failure to borrow, minus (b) the CD Rate or the Eurodollar
-----
Rate, as applicable, on or as near as practicable to, the
date of the prepayment or failure to borrow for a CD Rate
Loan or Eurodollar Rate Loan commencing on such date and
ending on the last day of the applicable Interest Period.
The determination of the Interest Differential by the
Administrative Agent shall be conclusive in the absence of
manifest error.
"Interest Period" means (a) with respect to
---------------
any CD Rate Loan, the related CD Period and (b) with respect
to any Eurodollar Rate Loan, the related Eurodollar Period.
"Investment" means, when used in connection
----------
with any Person, any investment by or of that Person,
whether by means of purchase or other acquisition of capital
stock or other Securities of any other Person or by means of
loan, advance, capital contribution, guaranty or other debt
or equity participation or interest, or otherwise, in any
other Person, including any partnership and joint venture
---------
interests of such Person in any other Person. "Investment"
shall include a repurchase by Borrower of its Common Stock.
The amount of any Investment shall be the amount actually
invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
"Laws" means, collectively, all foreign,
----
federal, state and local statutes, treaties, rules,
regulations, ordinances, codes and administrative or
controlling precedents of any Governmental Agency.
-15-
"Lien" means any mortgage, deed of trust,
----
pledge, hypothecation, assignment for security, security
interest, encumbrance, lien or charge of any kind, whether
voluntarily incurred or arising by operation of Law or
otherwise, affecting any Property, including any agreement
---------
to grant any of the foregoing, any conditional sale or other
title retention agreement, any lease in the nature of a
security interest, and/or the filing of or agreement to give
any financing statement under the Uniform Commercial Code or
comparable Law of any jurisdiction with respect to any
Property.
"Loan" means any group of Advances made at
----
any one time by the Banks under the Main Commitment pursuant
to Article 2.
---------
"Loan Documents" means, collectively, this
--------------
Agreement, the Notes, any Request for Loan, any Competitive
Bid Request and any other certificates, documents or
agreements of any type or nature heretofore or hereafter
executed and delivered by Borrower to the Administrative
Agent or to any Bank in furtherance of this Agreement, in
each case either as originally executed or as the same may
from time to time be supplemented, modified, amended,
restated, extended or supplanted.
"Main Commitment" means, subject to Section
---------------
2.7, $105,000,000, provided, that the amount of the Main
--- --------
Commitment shall increase on the date of any Event of
Default by the amount of the Swing Line Commitment
concurrently with the elimination of the Swing Line
Commitment. The respective Pro Rata Shares of the Banks
with respect to the Main Commitment as of the date hereof
are set forth in Schedule 1.1.
------------
"Majority Banks" means, as of any date of
--------------
determination, Banks whose aggregate Pro Rata Share or Swing
Line Commitment is at least 66 2/3% of the Commitment then
in effect or, if the Commitment is not then in effect, Banks
holding Notes evidencing at least 66 2/3% of the aggregate
Indebtedness evidenced by the Notes.
"Material Adverse Effect" means any set of
-----------------------
circumstances or events which (a) has or could reasonably be
expected to have any material adverse effect whatsoever upon
the validity or enforceability of any Loan Document, (b) is
or could reasonably be expected to be material and adverse
to the condition (financial or otherwise) or business
operations of Borrower and its Subsidiaries, taken as a
whole, or to the prospects of Borrower and its Subsidiaries,
taken as a whole, (c) materially impairs or could
-16-
reasonably be expected to materially impair the ability of
Borrower and its Subsidiaries, taken as a whole, to perform
its Obligations or (d) materially impairs or could
reasonably be expected to materially impair the ability of
any of the Banks to enforce any of its legal remedies
pursuant to the Loan Documents.
"Maturity Date" means the third anniversary
-------------
of the Closing Date, November 21, 1997.
"Maximum Competitive Advance" means, with
---------------------------
respect to any Competitive Bid made by a Bank, the amount
set forth therein as the maximum Competitive Advance which
that Bank is willing to make in response to the related
Competitive Bid Request.
"Multiemployer Plan" means any employee
------------------
benefit plan of a type described in Section 4001(a)(3) of
ERISA.
"Negative Pledge" means any covenant binding
---------------
on Borrower that prohibits the creation of Liens on any
Property of Borrower.
"Notes" means, collectively, the Competitive
-----
Advance Notes, the Committed Advance Notes and the Swing
Line Note.
"Obligations" means all present and future
-----------
obligations of every kind or nature of Borrower at any time
and from time to time owed to the Administrative Agent or
the Banks or any one or more of them under any one or more
of the Loan Documents, whether due or to become due, matured
or unmatured, liquidated or unliquidated, or contingent or
noncontingent, including obligations of performance as well
---------
as obligations of payment, and including interest that
---------
accrues after the commencement of any proceeding under any
Debtor Relief Law by or against Borrower or any Subsidiary
of Borrower.
"Opinion of Counsel" means the favorable
------------------
written legal opinion of Richard L. Hinckley, general
counsel to Borrower, substantially in the form of Exhibit G,
---------
together with copies of any officer's certificate or legal
opinion of another counsel or law firm relied upon by such
counsel in its opinion.
"Party" means any Person other than the
-----
Administrative Agent and the Banks, which now or hereafter
is a party to any of the Loan Documents.
-17-
"PBGC" means the Pension Benefit Guaranty
----
Corporation or any successor thereto established under
ERISA.
"Pension Plan" means any "employee pension
------------
benefit plan" that is subject to Title IV of ERISA and which
is maintained for employees of Borrower or any of its ERISA
Affiliates.
"Permitted Encumbrances" means:
----------------------
(a) inchoate Liens incident to construction
or maintenance of real property, or Liens incident to con-
struction or maintenance of real property, now or hereafter
filed of record for which adequate reserves have been set
aside and which are being contested in good faith by
appropriate proceedings and have not proceeded to judgment;
(b) Liens for taxes and assessments on real
property which are not yet past due, or Liens for taxes and
assessments on real property for which adequate reserves
have been set aside and are being contested in good faith by
appropriate proceedings and have not proceeded to judgment;
(c) easements, exceptions, reservations, or
other agreements granted or entered into after the date
hereof for the purpose of pipelines, conduits, cables, wire
communication lines, power lines and substations, streets,
trails, walkways, drainage, irrigation, water, and sewerage
purposes, dikes, canals, ditches, the removal of oil, gas,
coal, or other minerals, and other like purposes affecting
real property which in the aggregate do not materially
burden or impair the fair market value or use of such real
property for the purposes for which it is or may reasonably
be expected to be held;
(d) rights reserved to or vested in any
Governmental Agency by Law to control or regulate, or
obligations or duties under Law to any Governmental Agency
with respect to, the use of any real property;
(e) rights reserved to or vested in any
Governmental Agency by Law to control or regulate, or
obligations or duties under Law to any Governmental Agency
with respect to, any right, power, franchise, grant,
license, or permit;
-18-
(f) present or future zoning laws and ordi-
nances or other laws and ordinances restricting the
occupancy, use, or enjoyment of real property;
(g) statutory Liens, other than those
described in clauses (a) or (b) above, arising in the
ordinary course of business with respect to obligations
which are not delinquent or are being contested in good
faith by appropriate proceedings, provided that, if
--------
delinquent, adequate reserves have been set aside with
respect thereto and, by reason of nonpayment, no Property is
subject to a material risk of loss or forfeiture;
(h) Liens consisting of pledges or deposits
to secure obligations under workers' compensation laws or
similar legislation, including Liens of judgments thereunder
which are not currently dischargeable;
(i) Liens consisting of pledges or deposits
of Property to secure performance in connection with operat-
ing leases made in the ordinary course of business to which
Borrower or a Subsidiary is a party as lessee, provided the
--------
aggregate value of all such pledges and deposits in
connection with any such lease does not at any time exceed
16-2/3% of the annual fixed rentals payable under such
lease;
(j) Liens consisting of deposits of Property
to secure statutory obligations of Borrower or a Subsidiary
of Borrower in the ordinary course of its business; and
(k) Liens consisting of deposits of Property
to secure (or in lieu of) surety, appeal or customs bonds in
proceedings to which Borrower or a Subsidiary of Borrower is
a party in the ordinary course of its business
"Permitted Right of Others" means a Right of
-------------------------
Others consisting of (a) an interest (other than a legal or
equitable co-ownership interest, an option or right to
acquire a legal or equitable coownership interest and any
interest of a ground lessor under a ground lease) that does
not materially impair the value or use of Property for the
purposes for which it is or may reasonably be expected to be
held, (b) an option or right to acquire a Lien that would be
a Permitted Encumbrance, and (c) the reversionary interest
of a landlord under a lease of Property.
-19-
"Person" means any entity, whether an indi-
------
vidual, trustee, corporation, general partnership, limited
partnership, joint stock company, trust, estate, unincorpo-
rated organization, business association, tribe, firm, joint
venture, Governmental Agency, or otherwise.
"Preferred Stock" means each of (a) the
---------------
Cumulative Preferred Stock $20.00 par value 5.40% Series
Preferred Stock of Borrower, (b) the Cumulative Preferred
Stock $20.00 par value 5.20% Series Preferred Stock of
Borrower, (c) the Cumulative Preferred Stock $20.00 par
value 4.70% Preferred Stock of Borrower, and (d) the
Cumulative Preferred Stock $20.00 par value Auction Series A
of Borrower.
"Prime Rate" means the floating commercial
----------
loan rate of the Administrative Agent, announced from time
to time as its "prime rate", which interest rate may not
necessarily be the lowest interest rate at which the
Administrative Agent is willing to extend credit facilities.
"Property" means any interest in any kind of
--------
property or asset, whether real, personal or mixed, or tan-
gible or intangible.
"Pro Rata Share" means, with respect to each
--------------
Bank, the percentage of the Main Commitment set forth
opposite the name of that Bank on Schedule 1.1. Upon the
------------
occurrence of an Event of Default and increase in the amount
of the Main Commitment by the amount of the former Swing
Line Commitment, (i) the Pro Rata Share of the Bank which is
the Swing Line Bank shall ratably increase so that it
includes the former Swing Line Commitment, and (ii) the Pro
Rata Share of each other Bank shall ratably decrease.
"Quarterly Payment Date" means December 31,
----------------------
1994 and each subsequent March 31, June 30, September 30 and
December 31, through the Maturity Date.
"Regulations D, G, T, U and X" mean,
----------------------------
respectively, Regulations D, G, T, U and X, as at any time
amended, of the Board of Governors of the Federal Reserve
System, or any other regulation in substance substituted
therefor.
"Request for Loan" means a written request
----------------
for a Loan or a Swing Line Loan substantially in the form of
-20-
Exhibit H, signed by a Responsible Official of Borrower and
---------
properly completed to provide all information required to be
included therein.
"Requirement of Law" means, as to any Person,
------------------
the articles or certificate of incorporation and bylaws or
other organizational or governing documents of such Person,
and any Law, or judgment, award, decree, writ or determi-
nation of a Governmental Agency, in each case applicable to
or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"Responsible Official" means (a) when used
--------------------
with reference to a Person other than an individual, any
corporate officer of such Person, general partner of such
Person, corporate officer of a corporate general partner of
such Person, or corporate officer of a corporate general
partner of a partnership that is a general partner of such
Person, or any other responsible official thereof duly
acting on behalf thereof, and (ba when used with reference
to a Person who is an individual, such Person or his
authorized agent acting through a power of attorney. Any
document or certificate hereunder that is signed or executed
by a Responsible Official of a Person shall be conclusively
presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of that Person.
"Right of Others" means, as to any Property
---------------
in which a Person has an interest, (a) any legal or
equitable right, title or other interest (other than a Lien)
----------
held by any other Person in or with respect to that
Property, and (b) any option or right (including any option
---------
or right to acquire a Lien) held by any other Person to
acquire any such right, title or other interest in or with
respect to that Property.
"Securities" means any capital stock, share,
----------
voting trust certificate, bond, debenture, note or other
evidence of indebtedness, limited partnership interest, or
any warrant, option or other right to purchase or acquire
any of the foregoing.
"Senior Officer" means the (a) chief
--------------
executive officer, (b) chief operating officer, (c) chief
financial officer, (d) vice president, or (e) treasurer, in
each case whatever the title nomenclature may be, of the
Person designated.
-21-
"Special CD Circumstance" means the
-----------------------
application or adoption of any Law or interpretation, or any
change therein or thereof, or any change in the
interpretation or administration thereof by any Governmental
Agency, central bank or comparable authority charged with
the interpretation or administration thereof, or compliance
by any Bank with any request or directive (whether or not
having the force of Law) of any such Governmental Agency,
central bank or comparable authority, or the existence or
occurrence of circumstances affecting the certificate of
deposit market generally that are beyond the reasonable
control of the Banks.
"Special Eurodollar Circumstance" means
-------------------------------
(a) the adoption of any Law by any Governmental Agency,
central branch or comparable authority with respect to
activities in the Designated Eurodollar Market, or (b) any
change in the interpretation or administration of any
existing Law by any Governmental Agency, central bank or
comparable authority charged with the interpretation or
administration thereof, or (ca compliance by any Bank or its
Eurodollar Lending Office with any request or directive
(whether or not having the force of Law) of any such
Governmental Agency, central bank or comparable authority,
or (d) the existence or occurrence of circumstances
affecting the Designated Eurodollar Market generally that
are beyond the reasonable control of the Banks.
"Subsidiary" means, as of any date of deter-
----------
mination and with respect to any Person, any corporation,
partnership or joint venture, whether now existing or
hereafter organized or acquired: (a) in the case of a
corporation, of which a majority of the securities having
ordinary voting power for the election of directors or other
governing body (other than securities having such power only
by reason of the happening of a contingency) are at the time
beneficially owned by such Person and/or one or more
Subsidiaries of such Person, or (b) in the case of a part-
nership or joint venture, of which such Person or a Sub-
sidiary of such Person is a general partner or joint ven-
turer or of which a majority of the partnership or other
ownership interests are at the time beneficially owned by
such Person and/or one or more of its Subsidiaries.
"Swing Line Bank" means First Interstate Bank
---------------
of Nevada, N.A.
"Swing Line Commitment" means (a) prior to
---------------------
the occurrence of an Event of Default, a $20,000,000 lending
commitment extended by the Swing Line Bank pursuant to
-22-
this Agreement in which each of the Banks shall have a
partial unfunded pro rata participation in accordance with
Section 10.10, and (b) thereafter $0.
-------------
"Swing Line Note" means a promissory note in
---------------
the form of Exhibit I made by Borrower in favor of the Swing
---------
Line Bank to evidence the Swing Line Loans, either as
originally executed or as it may from time to time be
supplemented, modified, amended, restated or extended.
"Swing Line Loan" means a loan made by the
---------------
Swing Line Bank hereunder in accordance with Section 2.3.
---
"Termination Event" means (a) a "reportable
-----------------
event" as defined in Section 4043 of ERISA (other than a
----------
"reportable event" that is not subject to the provision for
30 day notice to the PBGC), (b) the withdrawal of Borrower
or any of its ERISA Affiliates from a Pension Plan during
any plan year in which it was a "substantial employer" as
defined in Section 4001(a)(2) of ERISA, (ca the filing of a
notice of intent to terminate a Pension Plan or the
treatment of an amendment to a Pension Plan as a termination
thereof pursuant to Section 4041 of ERISA, (d) the
institution of proceedings to terminate a Pension Plan by
the PBGC or (e) any other event or condition which might
reasonably be expected to constitute grounds under ERISA for
the termination of, or the apportionment of a trustee to
administer, any Pension Plan.
"Total Capitalization" means, as of any date
--------------------
of determination, the sum of (a) Total Common Shareholders
---
Equity as of that date, plus (b) the book value of the
----
Preferred Stock as of that date, plus (c) the principal
----
amount as of that date of Borrower's Indebtedness for
borrowed money having an initial maturity in excess of one
year from the date of its incurrence.
"Total Common Shareholders Equity" means, as
--------------------------------
of any date of determination, the sum of (a) the book value
---
of the Common Stock of Borrower as of that date, determined
in accordance with GAAP, plus (b) the retained earnings of
----
Borrower as of that date, determined in accordance with
GAAP, plus (c) the premium on the capital stock of Borrower
----
which should, in accordance with GAAP, be reflected on the
balance sheet of Borrower as of that date, minus (y) the
-----
book value of treasury stock which should, in accordance
with GAAP, be reflected on the balance sheet of Borrower as
of that date, and minus (z) the amount of unamortized
-----
capital stock expense which should, in accordance with GAAP,
be reflected on the
-23-
balance sheet of Borrower as of that Date ; provided that
--------
there shall be excluded from Total Common Shareholders Equity
any amount attributable to Common Stock that is, directly or
indirectly, required to be redeemed or repurchased by
Borrower at a specified date or upon the occurrence of
specified events or at the election of the holder thereof.
"Total Debt" means, as of any date of
----------
determination, Borrower's Indebtedness for borrowed money on
that date, minus the amount of all cash and securities
-----
deposited in trust as security for such Indebtedness with
the lenders thereof on that date.
"type", when used with respect to any Loan or
----
Advance, means the designation of whether such Loan or
Advance is a Base Rate Loan or Advance, a Eurodollar Rate
Loan or Advance or a CD Rate Advance.
1.2 Use of Defined Terms. Any defined term used in the
--------------------
plural shall refer to all members of the relevant class, and any
defined term used in the singular shall refer to any one or more
of the members of the relevant class.
1.3 Accounting Terms. All accounting terms not specifically
----------------
defined in this Agreement shall be construed in conformity with,
and all financial data required to be submitted by this
Agreement shall be prepared in conformity with, GAAP applied
on a consistent basis, except as otherwise specifically
------
prescribed herein. In the event that GAAP changes during
the term of this Agreement such that the financial covenants
contained in Sections 6.10 through 6.11 would then be
---- ----
calculated in a different manner or with different
components, (a) Borrower and the Banks agree to promptly
amend this Agreement in such respects as are necessary to
conform those covenants as criteria for evaluating
Borrower's financial condition to substantially the same
criteria as were effective prior to such change in GAAP and
(b) unless and until such an amendment to the Loan Documents
is effected, Borrower shall report its performance with
respect to the affected covenants in accordance with GAAP as
in effect prior to such changes.
1.4 Rounding. Any financial ratios required to be
--------
maintained by Borrower pursuant to this Agreement shall be
calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number
of places by which such ratio is expressed in this Agreement and
rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by
which such ratio is expressed in this Agreement.
-24-
1.5 Exhibits and Schedules. All Exhibits and Schedules to
----------------------
this Agreement, either as originally existing or as the same may
from time to time be supplemented, modified or amended, are
incorporated herein by this reference. A matter disclosed
on any Schedule shall be deemed disclosed on all Schedules.
1.6 References to "Borrower and its Subsidiaries". Any
--------------------------------------------
reference herein to "Borrower and its Subsidiaries" or the like
shall refer solely to Borrower during such times, if any, as
Borrower shall have no Subsidiaries.
1.7 Miscellaneous Terms. The term "or" is disjunctive; the
-------------------
term "and" is conjunctive. The term "shall" is mandatory; the
term "may" is permissive. Masculine terms also apply to females;
feminine terms also apply to males. The term "including" is
by way of example and not limitation. Each reference to an
hour or time of the day set forth in any Loan Document shall
be deemed to be a reference to the hour or time of the day
in Las Vegas, Nevada.
-25-
ARTICLE 2
LOANS
2.1 Committed Loans and Swing Line Loans - General.
----------------------------------------------
(a) Subject to the terms and conditions set
forth in this Agreement, at any time and from time to time
from the Closing Date through the Maturity Date, each Bank
shall, pro rata according to its Pro Rata Share of the then
applicable Main Commitment, make Committed Advances to
Borrower under the Main Commitment in such amounts as
Borrower may request that do not exceed in the aggregate at
any one time outstanding the amount of that Bank's Pro Rata
Share of the then applicable Main Commitment; provided that
--------
giving effect to the Committed Loan of which such Advance is
a part, the outstanding principal amount of the Committed
Loans plus the outstanding principal amount of the
----
Competitive Advances shall not exceed the Main Commitment.
Subject to the limitations set forth herein, Borrower may
borrow and repay under the Commitment without premium or
penalty.
(b) Subject to the terms and conditions set
forth in this Agreement, at any time and from time to time
from the Closing Date through the Maturity Date, the Swing
Line Bank shall make Swing Line Loans to Borrower under the
Swing Line Commitment in such amounts as Borrower may
request that do not exceed in the aggregate at any one time
outstanding the amount of the Swing Line Commitment; pro-
---
vided that (i) giving effect to the requested Swing Line
-----
Loan, the outstanding principal amount of the Swing Line
Loans shall not exceed the Swing Line Commitment, and (ii)
Borrower shall not request the making of a Swing Line Loan
after the occurrence of any Event of Default. Subject to
the limitations set forth herein, Borrower may borrow and
repay under the Swing Line Commitment without premium or
penalty.
(c) Subject to the next sentence, each
Committed Loan and each Swing Line Loan shall be made
pursuant to a Request for Loan which shall specify the
requested (i) date of such Loan or Swing Line Loan,
(ii) type of Loan, (iii) amount of such Loan or Swing Line
Loan, and (iv) Interest Period for such Loan. Unless the
Administrative Agent has notified, in its sole and absolute
discretion, Borrower to the contrary, a Committed Loan or
Swing Line Loan may be requested by telephone, telecopier or
telex by a Responsible Official of Borrower or by any
Designated Employee, in which case Borrower shall promptly
confirm such request by transmitting a telecopy of, or at
Administrative Agent's request by
-26-
mailing, a Request for Loan conforming to the preceding sentence
to Administrative Agent.
(d) Promptly following receipt of a Request
for Loan, the Administrative Agent shall notify each Bank
(or, in the case of a Request for Loan specifying a Swing
Line Loan, the Swing Line Bank) by telephone, telecopier or
telex of the date and type of the Committed Loan or Swing
Line Loan, the applicable Interest Period, and that Bank's
Pro Rata Share of the Loan. Not later than 9:00 a.m., on
the date specified for any Committed Loan, each Bank shall
make its Pro Rata Share of the Committed Loan available to
the Administrative Agent at the Administrative Agent's
Office in immediately available funds. Upon fulfillment of
the applicable conditions set forth in Article 8, all
---------
Committed Advances and Swing Line Loans shall be credited in
immediately available funds to the Designated Deposit
Account.
(e) Unless the Majority Banks otherwise con-
sent, each Loan under the Main Commitment shall be an
integral multiple of $1,000,000 but not less than
$5,000,000. Unless the Swing Line Bank otherwise consents,
each Swing Line Loan shall be in an integral multiple of
$100,000 but not less than $500,000.
(f) The Committed Advances made by each Bank
under its Pro Rata Share of the Main Commitment shall be
evidenced by that Bank's Committed Advance Note. The Swing
Line Loans shall be evidenced by the Swing Line Note.
(g) A Request for Loan shall be irrevocable
upon the Administrative Agent's first notification thereof.
(h) If no Request for Loan (or telephonic or
other request for a Committed Loan or Swing Line Loan
referred to in the second sentence of Section 2.1(c), if
------
applicable) has been made within the requisite notice
periods set forth in Sections 2.3, 2.4 and 2.5 in connection
--- --- ---
with a Committed Loan which, if made, would not increase the
outstanding principal Indebtedness outstanding under the
Main Commitment, then Borrower shall be deemed to have
requested a Base Rate Loan in an amount equal to the amount
necessary to cause such outstanding principal Indebtedness
to remain the same and, subject to Section 8.2 the Banks
---
shall make the Advances necessary to make such Committed
Loan notwithstanding Sections 2.1(c) and 2.4.
------ ---
-27-
(i) If a Committed Loan is to be made on the
same date that another Committed Loan is due and payable,
Borrower or the Banks, as the case may be, shall make
available to the Administrative Agent the net amount of
funds giving effect to both such Committed Loans and the
effect for purposes of this Agreement shall be the same as
if separate transfers of funds had been made with respect to
each such Committed Loan.
2.2 Competitive Advances.
--------------------
(a) Subject to the terms and conditions hereof,
at any time and from time to time from the Closing Date
through the Maturity Date, each Bank may in its sole and
absolute discretion make Competitive Advances to Borrower in
such principal amounts as Borrower may request pursuant to a
Competitive Bid Request, provided that giving effect to the
--------
requested Competitive Advance, the outstanding principal
amount of the Committed Loans plus the outstanding principal
----
amount of the Competitive Advances shall not exceed the Main
Commitment.
(b) Borrower shall request Competitive Advances
by submitting a Competitive Bid Request to the
Administrative Agent, which Competitive Bid Request shall
specify the relevant date, amount and maturity for the
proposed Competitive Advance and shall state that a
Competitive Bid is requested on the basis of either an
absolute, all-in rate (an "All-In Bid") or the basis of a
margin over the Eurodollar Rate (a "Eurodollar Bid"). Any
Competitive Bid Request made by telephone shall promptly be
confirmed by the delivery to Administrative Agent in person
or by telecopier of a written Competitive Bid Request. The
Competitive Bid Request must be received by the
Administrative Agent not later than 9:00 a.m. on a Banking
Day that is (i) in the case of each All-In Bid, at least two
(2) Banking Days prior, and (ii) in the case of each
Eurodollar Bid, at least four (4) Banking Days prior, to the
date of the proposed Competitive Advance.
(c) Unless the Administrative Agent otherwise
agrees, in its sole and absolute discretion, no Competitive
Bid Request shall be made by Borrower if Borrower has,
within the immediately preceding five (5) Banking Days,
submitted another Competitive Bid Request.
(d) Each Competitive Bid Request must be made for
a Competitive Advance of at least $5,000,000 and shall be in
an integral multiple of $1,000,000.
-28-
(e) No Competitive Bid Request shall be made for
a Competitive Advance with a maturity of less than 14 days
or more than 180 days, or with a maturity date subsequent to
the Maturity Date.
(f) The Administrative Agent shall, promptly
after receipt of a Competitive Bid Request, notify the Banks
thereof by telephone and provide the Banks a copy thereof by
telecopier. Any Bank may, by written notice to the
Administrative Agent, advise the Administrative Agent that
it elects not to be so notified of Competitive Bid Requests,
in which case the Administrative Agent shall not notify such
Bank of the Competitive Bid Request.
(g) Each Bank receiving a Competitive Bid Request
may, in its sole and absolute discretion, make or not make a
Competitive Bid responsive to the Competitive Bid Request.
Each Competitive Bid shall be submitted to the
Administrative Agent not later than 9:00 a.m. (i) in the
case of each Absolute Bid on the Business Day of the
proposed Competitive Advance and (ii) in the case of each
Eurodollar Bid, on the date which is three Business Days
prior to the date of the requested Competitive Advance. Any
Competitive Bid received by the Administrative Agent after
9:00 a.m. on such dates shall be disregarded for purposes of
this Agreement. Any Competitive Bid made by telephone shall
promptly be confirmed by the delivery to the Administrative
Agent in person or by telecopier of a written Competitive
Bid.
(h) Each Competitive Bid shall specify the fixed
interest rate for the offered Maximum Competitive Advance
set forth in the Competitive Bid. The Maximum Competitive
Advance offered by a Bank in a Competitive Bid may be less
than the Competitive Advance requested by Borrower in the
Competitive Bid Request, but shall be an integral multiple
of $1,000,000. Any Competitive Bid which offers an interest
rate other than a fixed interest rate, is in a form other
-----
than set forth in Exhibit D or which otherwise contains any
---- ---------
term, condition or provision not contained in the
Competitive Bid Request shall be disregarded for purposes of
this Agreement. A Competitive Bid once submitted to the
Administrative Agent shall be irrevocable until 10:00 a.m.
on the date upon which Borrower must accept or reject such
Competitive Bid (as set forth in (j) below), and shall
expire by its terms at such time unless accepted by Borrower
prior thereto.
(i) Promptly after 9:00 a.m. on the date upon
which it receives Competitive Bids, the Administrative Agent
shall notify Borrower of the names of any Banks which have
-29-
providing Competitive Bids at or before 9:00 a.m. on that
date, provided that if the Bank which serves as the
--------
Administrative Agent intends to make a Competitive Bid, it
shall do so by notifying Borrower prior to 8:45 a.m. on that
date. In each case, the Administrative Agent shall inform
Borrower of the Maximum Competitive Advance and fixed
interest rate set forth by each Bank in their Competitive
Bid. The Administrative Agent shall promptly confirm such
notifications in writing delivered in person or by
telecopier to Borrower.
(j) Borrower may, in its sole and absolute
discretion, reject any or all of the Competitive Bids. If
Borrower accepts any Competitive Bid, the following shall
apply: (a) Borrower must accept all Competitive Bids at all
lower interest rates before accepting any portion of a
Competitive Bid at a higher interest rate, (b) if two or
more Banks have submitted a Competitive Bid at the same
interest rate, then Borrower must accept either all of such
Competitive Bids or accept such Competitive Bids in the same
proportion as the Maximum Competitive Advance of each Bank
bears to the aggregate Maximum Competitive Advances of all
such Banks, and (c) Borrower may not accept Competitive Bids
for an aggregate amount in excess of the requested
Competitive Advance set forth in the Competitive Bid
Request. Acceptance of a Competitive Bid by Borrower shall
be irrevocable upon communication thereof to the
Administrative Agent. The Administrative Agent shall
promptly notify each of the Banks whose Competitive Bid has
been accepted by Borrower by telephone, which notification
shall promptly be confirmed in writing delivered in person
or by telecopier to such Banks. Any Competitive Bid not
accepted by Borrower by 10:00 a.m. on the date of the
proposed Competitive Bid shall be deemed rejected.
(k) A Bank whose Competitive Bid has been
accepted by Borrower shall make the Competitive Advance in
accordance with the Competitive Bid Request and with its
Competitive Bid, subject to the applicable conditions set
forth in this Agreement by making funds immediately
available to the Administrative Agent at the Administrative
Agent's Office in the amount of such Competitive Advance not
later than 12 noon on the date of such acceptance. The
Administrative Agent shall then promptly credit the
Competitive Advance in immediately available funds to the
Designated Deposit Account.
(l) The Administrative Agent shall notify
Borrower and the Banks promptly after any Competitive
Advance is made of the amounts and maturity of such
Competitive
-30-
Advances and the identity of the Banks making such
Competitive Advances.
(m) The Competitive Advances made by a Bank shall
be evidenced by that Bank's Competitive Advance Note.
(n) Borrower shall pay to the Administrative
Agent a fee with respect to each Competitive Bid Request
submitted to the Administrative Agent, in the amounts and at
the times set forth in a letter agreement between Borrower
and Administrative Agent.
2.3 Swing Line Loans. Each request by Borrower for a Swing
----------------
Line Loan shall be made pursuant to a Request for Loan (or
telephonic or other request for a Loan referred to in the second
sentence of Section 2.1(c), if applicable) received by the
------
Administrative Agent, at the Administrative Agent's Office,
not later than 11:00 a.m. on the day of the requested Swing
Line Loan.
2.4 Base Rate Loans. Each request by Borrower for a Base
---------------
Rate Loan shall be made pursuant to a Request for Loan (or
telephonic or other request for a Loan referred to in the second
sentence of Section 2.1(c), if applicable) received by the
------
Administrative Agent, at the Administrative Agent's Office,
not later than 9:00 a.m. on the day prior to the date of the
requested Base Rate Loan. All Loans shall constitute Base
Rate Loans unless properly designated as CD Rate Loans or
Eurodollar Rate Loans.
2.5 CD Rate Loans.
-------------
(a) Each request by Borrower for a CD Rate
Loan shall be made pursuant to a Request for Loan (or
telephonic or other request for a Loan referred to in the
second sentence of Section 2.1(c), if applicable) received
------
by the Administrative Agent, at the Administrative Agent's
Office, not later than 9:00 a.m. at least one CD Banking Day
before the first day of the applicable CD Period.
(b) Prior to the first day of the applicable
CD Period, the Administrative Agent shall determine the
applicable CD Rate (which determination shall be conclusive
in the absence of manifest error) and promptly shall give
notice of the same to Borrower and the Banks by telephone,
telecopier or telex.
(c) Unless all of the Banks otherwise
consent, no CD Rate Loan may be requested during the contin-
uance of a Default or Event of Default.
-31-
(d) Unless the Majority Banks otherwise
consent, no more than eight (8) CD Rate Loans and Eurodollar
Loans, in the aggregate, shall be outstanding at any one
time.
(e) Nothing contained herein shall require
any Bank to fund any CD Rate Advance by acceptance of a non-
personal time deposit or issuance of a certificate of
deposit.
2.6 Eurodollar Rate Loans.
---------------------
(a) Each request by Borrower for a
Eurodollar Rate Loan shall be made pursuant to a Request for
Loan (or telephonic or other request for a Loan referred to
in the second sentence of Section 2.1(c), if applicable)
------
received by the Administrative Agent, at the Administrative
Agent's Office, not later than 9:00 a.m. at least three (3)
Eurodollar Banking Days before the first day of the
applicable Eurodollar Period.
(b) Prior to the first day of the applicable
Eurodollar Period, the Administrative Agent shall determine
the applicable Eurodollar Rate (which determination shall be
conclusive in the absence of manifest error) and promptly
shall give notice of the same to Borrower and the Banks by
telephone, telecopier or telex.
(c) Unless all of the Banks otherwise
consent, no Eurodollar Rate Loan may be requested during the
continuance of a Default or Event of Default.
(d) Unless the Majority Banks otherwise
consent, no more than eight (8) CD Rate Loans and Eurodollar
Loans, in the aggregate, shall be outstanding at any one
time.
(e) Nothing contained herein shall require
any Bank to fund any Eurodollar Rate Advance in the
Designated Eurodollar Market.
2.7 Voluntary Reduction of the Commitment. Borrower
-------------------------------------
shall have the right, at any time and from time to time,
without penalty or charge, upon at least three (3) Banking
Days' prior written notice to the Administrative Agent,
voluntarily to reduce, permanently and irrevocably, in
aggregate principal amounts in an integral multiple of
$5,000,000 which are not less than $25,000,000, all or a
portion of the then undisbursed portion of the Commitment;
provided that any such reduction shall be accompanied by
--------
payment of all accrued and unpaid commitment fees with
respect to the portion of the Commitment
-32-
being reduced. Any such reduction may be allocated between the
Main Commitment and the Swing Line Commitment by Borrower in
amounts which are integral multiples of $1,000,000.
2.8 Administrative Agent's Right to Assume Funds
--------------------------------------------
Available for Advances. Unless the Administrative Agent shall
----------------------
have been notified by any Bank no later than the Banking Day prior
to the funding by the Administrative Agent of any Loan that such
Bank does not intend to make available to the Administrative Agent
such Bank's Pro Rata Share of the total amount of such Loan (and
provided that the Administrative Agent has given such Bank
--------
notice of such Loan in accordance with Section 2.1(d)), the
-------
Administrative Agent may assume that such Bank has made such
amount available to the Administrative Agent on the date of
the Loan and the Administrative Agent may, in reliance upon
such assumption, make available to Borrower a corresponding
amount. If the Administrative Agent has made funds
available to Borrower based on such assumption and such cor-
responding amount is not in fact made available to the
Administrative Agent by such Bank, the Administrative Agent
shall be entitled to recover such corresponding amount on
demand from such Bank. If such Bank does not pay such
corresponding amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent promptly
shall notify Borrower and Borrower shall pay such
corresponding amount to the Administrative Agent. The
Administrative Agent also shall be entitled to recover from
such Bank interest on such corresponding amount in respect
of each day from the date such corresponding amount was made
available by the Administrative Agent to Borrower to the
date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to the
Federal Funds Rate.
-33-
ARTICLE 3
PAYMENTS AND FEES
-----------------
3.1 Principal and Interest.
----------------------
(a) Interest shall be payable on the out-
standing daily unpaid principal amount of each Advance and
each Swing Line Loan from the date thereof until payment in
full is made and shall accrue and be payable at the rates
set forth herein before and after default, before and after
maturity, before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief
Law, with interest on overdue interest to bear interest at
the Default Rate to the fullest extent permitted by
applicable Laws.
(b) Interest accrued on each Base Rate Loan
through the last day of each calendar month shall be due and
payable on the fifth Banking Day following that day.
Interest accrued on each Swing Line Loan through the last
day of each calendar month shall be due and payable on that
day. Except as otherwise provided in Section 3.7, the
------ ---
unpaid principal amount of each Base Rate Loan and each
Swing Line Loan shall bear interest at a fluctuating rate
per annum equal to the Base Rate plus the Base Rate Spread.
----
Each change in the interest rate applicable to Base Rate
Loans and Swing Line Loans shall take effect simultaneously
with the corresponding changes in the Base Rate and the Base
Rate Spread. Each change in the Base Rate or the Base Rate
Spread shall be effective as of 12:01 a.m. on the Banking
Day on which such change the Base Rate or the Base Rate
Spread is announced, unless otherwise specified in such
announcement, in which case the change shall be effective as
so specified.
(c) Interest accrued on each CD Rate Loan
which is for a term of 90 days or less shall be due and
payable on the last day of the related CD Period. Interest
accrued on each other CD Rate Loan shall be due and payable
each Quarterly Payment Date and on the last day of the
related CD Period. Except as otherwise provided in
------
Section 3.7, the unpaid principal amount of any CD Rate Loan
---
shall bear interest at a rate per annum equal to the CD Rate
for that CD Rate Loan plus, the applicable CD Rate Spread.
----
(d) Interest accrued on each Eurodollar Rate
Loan which is for a term of three months or less shall be
due and payable on the last day of the related Eurodollar
Period. Interest accrued on each other Eurodollar Rate Loan
shall be due and payable each Quarterly Payment Date
-34-
and on the last day of the related Eurodollar Period. Except as
------
otherwise provided in Section 3.7, the unpaid principal
---
amount of any Eurodollar Rate Loan shall bear interest at a
rate per annum equal to the Eurodollar Rate for that
Eurodollar Rate Loan plus, the applicable Eurodollar
----
Rate Spread.
(e) Interest accrued on each Competitive
Advance shall be due and payable on the maturity date of the
Competitive Advance. Except as otherwise provided in
Section 3.7, the unpaid principal amount of each Competitive
---
Advance shall bear interest at the fixed interest rate
specified in the related Competitive Bid.
(f) If not sooner paid, the principal
Indebtedness evidenced by the Notes shall be payable as
follows:
(i) the principal amount of each CD
Rate Loan and each Eurodollar Rate Loan shall be payable
immediately on the last day of the Interest Period for such
Loan;
(ii) the principal amount of each
Competitive Advance shall be payable on the maturity date
specified in the related Competitive Bid;
(iii) the principal Indebtedness
evidenced by the Notes shall be payable immediately in
immediately available funds, to the extent that the
outstanding principal amount of the Loans at any time
exceeds the Commitment;
(iv) the principal Indebtedness
evidenced by the Committed Notes shall be payable
immediately in immediately available funds, to the extent
that the principal amount of the Loans made under the Main
Commitment plus the principal amount of any outstanding
----
Competitive Advances at any time exceeds the Main
Commitment;
(v) the principal Indebtedness amount
of each Competitive Advance shall be payable immediately in
immediately available funds on the last day of the interest
period for that Competitive Advance; and
(vi) the principal Indebtedness
evidenced by the Swing Line Note shall be payable
immediately in immediately available funds, to the extent
that the principal amount of the outstanding Swing Line
Loans at any time exceed the Swing Line Commitment; and
-35-
(vii) the principal Indebtedness
evidenced by the Notes shall in any event be payable
immediately in immediately available funds on the Maturity
Date.
(g) Subject to clause (h) of this Section,
the Notes may, at any time and from time to time,
voluntarily be paid or prepaid in whole or in part without
premium or penalty, except that with respect to any
------
voluntary prepayment under this subsection, (i) any partial
prepayment of Loans under the Main Commitment shall be in an
integral multiple of $1,000,000, but not less than
$5,000,000, (ii) any partial prepayment of the Loans under
the Swing Line Commitment shall be in an integral multiple
of $100,000, but not less than $500,000, (iii) the
Administrative Agent shall have received written notice of
any prepayment at least one (1) Banking Day, in the case of
a Base Rate Loan, and five (5) Banking Days, in the case of
a CD Rate Loan or a Eurodollar Rate Loan, before the date of
prepayment, which notice shall identify the date and amount
of the prepayment and the Loan(s) being prepaid, (iv) each
prepayment of principal in respect of a CD Rate Loan or a
Eurodollar Rate Loan shall be accompanied by payment of
interest accrued through the date of payment on the amount
of principal paid and (v) in any event, any payment or
prepayment of all or any part of any CD Rate Loan or
Eurodollar Rate Loan on a day other than the last day of the
applicable Interest Period shall be subject to
Sections 3.5(d) and 3.6(d).
------ ------
(h) No Competitive Advance Note may be
prepaid without the prior written consent of the Bank making
such Competitive Advance.
3.2 Commitment Fees. On each Quarterly Payment Date and on
---------------
the earlier of the Maturity Date and the date upon which the
Obligations are paid in full and the Commitment terminated,
Borrower shall pay to the Administrative Agent, for the account of
each Bank according to its Pro Rata Share of the Main Commitment,
commitment fees equal to the average daily difference
between the principal Indebtedness evidenced by the
Committed Advance Notes (other than Indebtedness consisting
of Swing Line Loans) and the Main Commitment times a
-----
percentage, equal for each relevant period to the percentage
set forth opposite the credit rating which is the lower of
the credit ratings assigned to the First Mortgage Bonds by
Moody's Investors Service, Inc. and Standard & Poor's
Corporation, during that period:
Credit Rating Percentage
------------- ----------
-36-
S&P Moody's
--- -------
A- or A3 (or higher) .1500%
BBB+ or Baa1 .1875%
BBB or Baa2 .2000%
BBB- or Baa3 .2500%
BB+ or Ba1 (or lower) .3750%
On each Quarterly Payment Date and on the earlier of the
Maturity Date and the date upon which the Obligations are
paid in full and the Swing Line Commitment is terminated,
Borrower shall also pay to the Swing Line Bank for the
account of the Swing Line Bank a commitment fee equal to the
difference between the average daily principal amount of the
Swing Line Loans and the Swing Line Commitment times the
-----
percentage set forth above.
3.3 Agency and Arrangement Fees. On the date of this
---------------------------
Agreement Borrower shall pay to the Administrative Agent, for the
sole account of the Administrative Agent, agency and arrangement
fees in the amounts heretofore agreed upon by letter
agreement between Borrower and Administrative Agent. The
agency and arrangement fees are for the sole account of the
Administrative Agent and are fully earned upon receipt and
are non-refundable.
3.4 Increased Commitment Costs. If any Bank determines in
--------------------------
good faith that compliance with any Law or regulation
enacted or promulgated after the Closing Date, or with any
guideline or request from any central bank or other
Governmental Agency issued or made after the Closing Date
(whether or not having the force of Law) has or would have
the effect of reducing the rate of return on the capital of
such Bank or any corporation controlling such Bank as a
consequence of, or with reference to, such Bank's portion of
the Commitment or its making or maintaining of Advances or
Swing Line Loans, below the rate which the Bank or such
other corporation could have achieved but for such
compliance (taking into account the policies of such Bank or
corporation with regard to capital), then the Borrower shall
from time to time, upon demand by such Bank (with a copy of
such demand to the Administrative Agent), immediately pay to
such Bank additional amounts sufficient to compensate such
Bank or other corporation for such reduction. A certificate
as to such amounts, submitted to the Borrower and the
Administrative Agent by such Bank, shall be conclusive and
binding for all purposes, absent manifest error. Each Bank
agrees promptly to notify the Borrower and the
Administrative Agent of any circumstances that would cause
the Borrower to pay additional amounts pursuant to this
Section, provided that the
--------
-37-
failure to give such notice shall not affect the Borrower's
obligation to pay such additional amounts hereunder.
3.5 CD Fees and Costs.
-----------------
(a) If, after the date hereof, the existence
or occurrence of any Special CD Circumstance:
(1) shall subject any Bank to any tax,
duty or other charge or cost with respect to any CD Rate
Advance, its Notes or its obligation to make CD Rate
Advances, or shall change the basis of taxation of
payments to any Bank of the principal of or interest on
any CD Rate Advance or any other amounts due under this
Agreement in respect of any CD Rate Advance, its Notes
or its obligation to make CD Rate Advances (except for
------
changes in the rate of tax on the overall net income,
gross income or gross receipts of such Bank imposed by
the jurisdiction in which such Bank's principal
executive office is located);
(2) shall impose, modify or deem appli-
cable any reserve (including, without limitation, any
---------
reserve imposed by the Board of Governors of the Federal
Reserve System), special deposit or similar requirements
not already fully taken into account by the CD
Assessment Rate and the CD Reserve Percentage against
assets of, deposits with or for the account of, or
credit extended by, any Bank; or
(3) shall impose on any Bank or the
certificate of deposit market any other condition
affecting any CD Rate Advance, its Notes, its obligation
to make CD Rate Advances or this Agreement, or shall
otherwise affect any of the same;
and the result of any of the foregoing, as determined
by such Bank, increases the cost to such Bank of making or
maintaining any CD Rate Advance or in respect of any CD Rate
Advance, its Notes or its obligation to make CD Rate
Advances or reduces the amount of any sum received or
receivable by such Bank with respect to any CD Rate Advance,
its Notes or its obligation to make CD Rate Advances
(assuming such Bank had funded 100% of its CD Rate Advance
by accepting a nonpersonal time deposit for a corresponding
amount and term), then, upon demand by such Bank (with a
copy to the Administrative Agent), Borrower shall pay to
such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction
(determined as though such Bank had funded 100%
-38-
of its CD Rate Advance by accepting a nonpersonal time
deposit for a corresponding amount and term). Borrower
hereby indemnifies each Bank against, and agrees to hold each
Bank harmless from and reimburse each Bank on demand for,
all costs, expenses, claims, penalties, liabilities, losses,
legal fees and damages incurred or sustained by each Bank in
connection with this Agreement, or any of the rights,
obligations or transactions provided for or contemplated
herein, as a result of the existence or occurrence of any
Special CD Circumstance. A statement of any Bank claiming
compensation under this subsection shall be conclusive in the
absence of manifest error. Each Bank agrees to endeavor
promptly to notify Borrower of any event of which it has
actual knowledge, occurring after the Closing Date, which
will entitle such Bank to compensation pursuant to this
Section. If any Bank claims compensation under this Section,
Borrower may at any time, upon at least four (4) CD Banking
Days prior notice to the Administrative Agent and such Bank,
and upon payment in full of the amounts provided for in this
Section plus any prepayment fee required by Section 3.5(d),
---- ------
pay in full the affected CD Rate Advances of such Bank or
request that such CD Rate Advances be converted to Base Rate
Advances.
(b) If, after the date hereof, the existence
or occurrence of any Special CD Circumstance shall, in the
opinion of any Bank, make it unlawful, impossible or
impracticable for such Bank to make, maintain or fund its
portion of any CD Rate Loan, or materially restrict the
authority of such Bank to purchase or sell, or to take
deposits of, nonpersonal time deposits, or to determine or
charge interest rates based upon the CD Rate, and such Bank
shall so notify the Administrative Agent, then such Bank's
obligation to make CD Rate Advances shall be suspended for
the duration of such illegality, impossibility or imprac-
ticability and the Administrative Agent forthwith shall give
notice thereof to the other Banks and Borrower. Upon
receipt of such notice, the outstanding principal amount of
such Bank's CD Rate Advances, together with accrued interest
thereon, automatically shall be converted to Base Rate
Advances on either (1) the last day of the CD Period(s)
applicable to such CD Rate Advances if such Bank may
lawfully continue to maintain and fund CD Rate Advances to
such day(s) or (2) immediately if such Bank may not lawfully
continue to fund and maintain such CD Rate Advances to such
day(s), provided that in such event the conversion shall not
--------
be subject to payment of a prepayment fee under
Section 3.5(d). In the event that any Bank is unable, for
------
the reasons set forth above, to make, maintain or fund its
portion of any CD Rate Loan, such Bank shall fund such
amount as a Base Rate Advance,
-39-
and such amount shall be treated in all respects as a Base
Rate Advance.
(c) If, with respect to any proposed CD Rate
Loan:
(1) the Administrative Agent reasonably
determines that, by reason of circumstances affecting
the certificate of deposit market generally that are
beyond the reasonable control of the Banks, nonpersonal
time deposits (in the applicable amounts) are not being
offered to each of the Banks in the certificate of
deposit market for the applicable CD Period; or
(2) the Majority Banks advise the
Administrative Agent that the CD Rate as determined by
the Administrative Agent (i does not represent the
effective pricing to such Banks for nonpersonal time
deposits in the certificate of deposit market in the
relevant amount for the applicable CD Period, or (ii)
will not adequately and fairly reflect the cost to such
Banks of making the applicable CD Rate Advances;
then the Administrative Agent forthwith shall give
notice thereof to Borrower and the Banks, whereupon until
the Administrative Agent notifies Borrower that the
circumstances giving rise to such suspension no longer
exist, the obligation of the Banks to make any future CD
Rate Advances shall be suspended. If at the time of such
notice there is then pending a Request for Loan that
specifies a CD Rate Loan, such Request for Loan shall be
deemed to specify a Base Rate Loan.
(d) Upon payment or prepayment of any CD
Rate Advance, or conversion of a CD Rate Advance to a Base
Rate Advance (other than as the result of a conversion under
Section 3.5(b)), on a day other than the last day in the
-------
applicable CD Period (whether voluntarily, involuntarily, by
reason of acceleration, or otherwise), Borrower shall pay to
the appropriate Bank a prepayment fee calculated as follows
(and determined as though 100% of the CD Rate Advance had
been funded by acceptance of a nonpersonal time deposit for
a corresponding amount and term):
(1) principal amount of the CD Rate
Advance, times [number of days between the date of
-----
prepayment or conversion and the last day in the applicable
CD Period], divided by 360, times the applicable Interest
---------- -----
Differential; plus
----
-40-
(2) all out-of-pocket expenses incurred
by the Bank and reasonably attributable to such payment
or prepayment;
provided that no prepayment fee shall be payable (and
--------
no credit or rebate shall be required) if the product of the
foregoing formula is not positive. Each Bank's determina-
tion of the amount of any prepayment fee payable under this
Section 3.5(d) shall be conclusive in the absence of
------
manifest error.
3.6 Eurodollar Fees and Costs.
-------------------------
(a) If, after the date hereof, the existence
or occurrence of any Special Eurodollar Circumstance:
(1) shall subject any Bank or its Euro-
dollar Lending Office to any tax, duty or other charge
or cost with respect to any Eurodollar Rate Advance, its
Notes or its obligation to make Eurodollar Rate
Advances, or shall change the basis of taxation of
payments to any Bank of the principal of or interest on
any Eurodollar Rate Advance or any other amounts due
under this Agreement in respect of any Eurodollar Rate
Advance, its Notes or its obligation to make Eurodollar
Rate Advances (except for changes in any tax on the
------
overall net income, gross income or gross receipts of
such Bank or its Eurodollar Lending Office);
(2) shall impose, modify or deem appli-
cable any reserve (including, without limitation, any
---------
reserve imposed by the Board of Governors of the Federal
Reserve System), special deposit or similar requirements
against assets of, deposits with or for the account of,
or credit extended by, any Bank or its Eurodollar
Lending Office; or
(3) shall impose on any Bank or its
Eurodollar Lending Office or the Designated Eurodollar
Market any other condition affecting any Eurodollar Rate
Advance, its Notes, its obligation to make Eurodollar
Rate Advances or this Agreement, or shall otherwise
affect any of the same;
and the result of any of the foregoing, as determined
by such Bank, increases the cost to such Bank or its
Eurodollar Lending Office of making or maintaining any Euro-
dollar Rate Advance or in respect of any Eurodollar Rate
Advance, its Notes or its obligation to make
-41-
Eurodollar Rate Advances or reduces the amount of any sum
received or receivable by such Bank or its Eurodollar
Lending Office with respect to any Eurodollar Rate Advance,
its Notes or its obligation to make Eurodollar Rate Advances
(assuming such Bank's Eurodollar Lending Office had funded
100% of its Eurodollar Rate Advance in the Designated
Eurodollar Market), then, upon demand by such Bank (with a
copy to the Administrative Agent), Borrower shall pay to
such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction
(determined as though such Bank's Eurodollar Lending Office
had funded 100% of its Eurodollar Rate Advance in the
Designated Eurodollar Market). A statement of any Bank
claiming compensation under this subsection shall be
conclusive in the absence of manifest error. Each Bank
agrees to endeavor promptly to notify Borrower of any event
of which it has actual knowledge, occurring after the Closing
Date, which will entitle such Bank to compensation pursuant
to this Section, and agrees to designate a different
Eurodollar Lending Office if such designation will avoid the
need for or reduce the amount of such compensation and will
not, in the judgment of such Bank, otherwise be
disadvantageous to such Bank. If any Bank claims
compensation under this Section, Borrower may at any time,
upon at least four (4) Eurodollar Banking Days' prior notice
to the Administrative Agent and Banks and upon payment in
full of the amounts provided for in this Section through the
date of such payment plus any prepayment fee required by
----
Section 3.6 (d), pay in full all Eurodollar Rate Advances or
-------
request that all Eurodollar Rate Advances be converted to
Base Rate Advances.
(b) If, after the date hereof, the existence
or occurrence of any Special Eurodollar Circumstance shall,
in the opinion of any Bank, make it unlawful, impossible or
impracticable for such Bank or its Eurodollar Lending Office
to make, maintain or fund its portion of any Eurodollar Rate
Loan, or materially restrict the authority of such Bank to
purchase or sell, or to take deposits of, dollars in the
Designated Eurodollar Market, or to determine or charge
interest rates based upon the Eurodollar Rate, and such Bank
shall so notify the Administrative Agent and the other
Banks, then the Banks' obligation to make Eurodollar Rate
Advances shall be suspended for the duration of such
illegality, impossibility or impracticability and the
Administrative Agent forthwith shall give notice thereof to
Borrower. Upon receipt of such notice, the outstanding
principal amount of all Eurodollar Rate Advances, together
with accrued interest thereon, automatically shall be
converted to Base Rate Advances
-42-
with Interest Periods corresponding to the Eurodollar Loans
of which such Eurodollar Rate Advances were a part on either
(1) the last day of the Eurodollar Period(s) applicable to
such Eurodollar Rate Advances if the affected Bank may
lawfully continue to maintain and fund such Eurodollar Rate
Advances to such day(s) or (2) immediately if the affected
Bank may not lawfully continue to fund and maintain such
Eurodollar Rate Advances to such day(s), provided that in
--------
such event the conversion shall not be subject to payment of
a prepayment fee under Section 3.6(d).
------
(c) If, with respect to any proposed
Eurodollar Rate Loan:
(1) the Administrative Agent reasonably
determines that, by reason of circumstances affecting
the Designated Eurodollar Market generally that are
beyond the reasonable control of the Banks, deposits in
dollars (in the applicable amounts) are not being
offered to each of the Banks in the Designated
Eurodollar Market for the applicable Eurodollar Period;
or
(2) the Majority Banks advise the
Administrative Agent that the Eurodollar Rate as
determined by the Administrative Agent (i) does not
represent the effective pricing to such Banks for
deposits in dollars in the Designated Eurodollar Market
in the relevant amount for the applicable Eurodollar
Period, or (ii) will not adequately and fairly reflect
the cost to such Banks of making the applicable
Eurodollar Rate Advances;
then the Administrative Agent forthwith shall give
notice thereof to Borrower and the Banks, whereupon until
the Administrative Agent notifies Borrower that the
circumstances giving rise to such suspension no longer
exist, the obligation of the Banks to make any future
Eurodollar Rate Advances shall be suspended. If at the time
of such notice there is then pending a Request for Loan that
specifies a Eurodollar Rate Loan, such Request for Loan
shall be deemed to specify a Base Rate Loan.
(d) Upon payment or prepayment of any
Eurodollar Rate Advance, (other than as the result of a
conversion required under Section 3.6(b)), on a day other
-------
than the last day in the applicable Eurodollar Period
(whether voluntarily, involuntarily, by reason of acceler-
ation, or otherwise), or upon the failure of Borrower to
borrow on the date or in the amount specified for a
Eurodollar Rate
-43-
Loan in any Request for Loan, Borrower shall
pay to the appropriate Bank a prepayment fee or failure to
borrow fee, as the case may be, calculated as follows (and
determined as though 100% of the Eurodollar Rate Advance had
been funded in the Designated Eurodollar Market):
(1) principal amount of the Eurodollar
Rate Advance, times [number of days between the date of
-----
prepayment and the last day in the applicable Eurodollar
Period], divided by 360, times the applicable Interest
---------- -----
Differential; plus
----
(2) all actual out-of-pocket expenses
(other than those taken into account in the calculation
of the Interest Differential) incurred by the Bank
(excluding allocations of any expense internal to that
---------
Bank) and reasonably attributable to such payment or
prepayment;
provided that no prepayment fee or failure to borrow
--------
fee shall be payable (and no credit or rebate shall be
required) if the product of the foregoing formula is not a
positive number. Each Bank's determination of the amount of
any prepayment fee or failure to borrow fee payable under
this Section 3.6(d) shall be conclusive in the absence of
------
manifest error.
3.7 Default Rate. From and after the occurrence of any
------------
Event of Default the Loans and the Swing Line Loans shall bear
interest at a fluctuating interest rate per annum at all times
equal to the sum of the Base Rate plus 3% per annum, to the
--- ----
fullest extent permitted by applicable Laws. Accrued and unpaid
interest on past due amounts (including, without limitation,
---------
interest on past due interest) shall be compounded
quarterly, on the last day of each calendar quarter, to the
fullest extent permitted by applicable Laws.
3.8 Computation of Interest and Fees. Computation of
--------------------------------
interest on Base Rate Loans, Swing Line Loans, Eurodollar Rate
Loans, CD Rate Loans, Competitive Advances and on commitment fees
shall be calculated on the basis of a year of 360 days and
the actual number of days elapsed. Borrower acknowledges
that this calculation method will result in a higher yield
to the Banks than a method based on a year of 365 or 366
days. Any Loan or Swing Line Loan that is repaid on the
same day on which it is made shall bear interest for one
day.
3.9 Non-Banking Days. If any payment to be made by Borrower
----------------
or any other Party under any Loan Document shall come due on a day
other than a Banking Day, payment shall instead be
-44-
considered due on the next succeeding Banking Day and the
extension of time shall be reflected in computing interest.
3.10 Manner and Treatment of Payments.
--------------------------------
(a) Each payment hereunder or on the Notes
or under any other Loan Document shall be made to the
Administrative Agent for the account of each of the Banks,
or the Administrative Agent, as the case may be, in immedi-
ately available funds not later than 9:00 a.m. (or, in the
case of payments with respect to Swing Line Loans, not later
than 12:00 noon) on the day of payment (which must be a
Banking Day). All payments received after 9:00 a.m. (or, in
the case of payments with respect to Swing Line Loans, not
later than 12:00 noon) on any particular Banking Day, shall
be deemed received on the next succeeding Banking Day. The
amount of all payments received by the Administrative Agent
for the account of each Bank shall be promptly paid by the
Administrative Agent to the applicable Bank in immediately
available funds. Should the Administrative Agent fail to
remit to any Bank any funds actually received by the
Administrative Agent and due to that Bank on the same
Banking Day upon which such funds are deemed received by the
Administrative Agent as set forth above, that Bank shall be
entitled to recover interest on such funds from the
Administrative Agent at a rate per annum equal to the
Federal Funds Rate. All payments shall be made in lawful
money of the United States of America.
(b) Each payment or prepayment on account of
any Committed Loan shall be applied pro rata according to
the outstanding Committed Advances made by each Bank
comprising such Committed Loan. Each payment or prepayment
of a Competitive Advance shall be applied to the Competitive
Advance Note held by the Bank which made such Competitive
Advance.
(c) Each Bank shall use its best efforts to
keep a record of Advances and Swing Line Loans made by it
and payments received by it with respect to its Notes and
such record shall be presumptive evidence of the amounts
owing. Notwithstanding the foregoing sentence, no Bank
shall be liable to any Party for any failure to keep such a
record.
(d) Each payment of any amount payable by
Borrower or any other Party under this Agreement or any
other Loan Document shall be made free and clear of, and
without reduction by reason of, any taxes, assessments or
other charges imposed by any Governmental Agency, central
-45-
bank or comparable authority (other than taxes on income or
gross receipts generally applicable to banks). To the
extent that Borrower is obligated by applicable Laws to make
any deduction or withholding on account of taxes,
assessments or other charges imposed by any Governmental
Agency from any amount payable to any Bank under any Loan
Document, Borrower shall (i) make such deduction or with-
holding and pay the same to the relevant Governmental Agency
and (ii) pay such additional amount to that Bank as is
necessary to result in that Bank's receiving a net after-tax
(or after-assessment or after-charge) amount equal to the
amount to which that Bank would have been entitled under the
Loan Document absent such deduction or withholding. If and
when receipt of such payment results in an excess payment or
credit to that Bank on account of such taxes, assessments or
other charges, that Bank shall refund such excess to
Borrower.
(e) Each Bank which is organized outside the
United States of America shall promptly deliver to Borrower
and the Administrative Agent a completed Internal Revenue
Service Form 4224 and any other certificate or statement or
exemption required by applicable Laws, properly completed
and duly executed by such Bank, to establish that such
payment is (1) not subject to withholding under the Code
because such payment is effectively connected with the
conduct by such Bank of a trade or business in the United
States of America or (2) totally exempt from United States
tax under a provision of an applicable tax treaty. Unless
Borrower and the Administrative Agent have received such
Form or other documents satisfactory to them indicating that
payments hereunder or under the Notes are not subject to
United States withholding tax or are subject to such tax at
a rate reduced by an applicable tax treaty, the
Administrative Agent shall withhold the taxes from such
payment at the applicable statutory rate in the case of
payments to or for any Bank organized under the Laws of a
jurisdiction outside the United States of America and
Section 3.10(d) shall not apply thereto.
-------
3.11 Funding Sources. Nothing in this Agreement shall be
---------------
deemed to obligate any Bank to obtain the funds for any Loan,
Swing Line Loan or Advance in any particular place or manner or to
constitute a representation by any Bank that it has obtained
or will obtain the funds for any Loan, Swing Line Loan or
Advance in any particular place or manner.
3.12 Failure to Charge Not Subsequent Waiver. Any
---------------------------------------
decision by the Administrative Agent or any Bank not to require
payment of any interest (including interest arising under
---------
-46-
Section 3.7), fee, cost or other amount payable under
---
any Loan Document, or to calculate any amount payable by a
particular method, on any occasion shall in no way limit or
be deemed a waiver of the Administrative Agent's or such
Bank's right to require full payment of any interest
(including interest arising under Section 3.7), fee, cost or
--------- ---
other amount payable under any Loan Document, or to
calculate an amount payable by another method, on any other
or subsequent occasion.
3.13 Administrative Agent's Right to Assume Payments
-----------------------------------------------
Will be Made by Borrower. Unless the Administrative Agent shall
------------------------
have been notified by Borrower prior to the date on which any
payment to be made by Borrower hereunder is due that Borrower does
not intend to remit such payment, the Administrative Agent may, in
its discretion, assume that Borrower has remitted such payment
when so due and the Administrative Agent may, in its
discretion and in reliance upon such assumption, make
available to each Bank on such payment date an amount equal
to such Bank's share of such assumed payment. If Borrower
has not in fact remitted such payment to the Administrative
Agent, each Bank shall forthwith on demand repay to the
Administrative Agent the amount of such assumed payment made
available to such Bank, together with interest thereon in
respect of each day from and including the date such amount
was made available by the Administrative Agent to such Bank
to the date such amount is repaid to the Administrative
Agent at a rate per annum equal to the actual cost to the
Administrative Agent of funding such amount as notified by
the Administrative Agent to such Bank.
3.14 Fee Determination Detail. The Administrative Agent,
------------------------
and any Bank, shall provide reasonable detail to Borrower
regarding the manner in which the amount of any payment to the
Banks, or that Bank, under Article 3 has been determined.
---------
3.15 Survivability. All of Borrower's obligations under
-------------
Sections 3.4, 3.5 and 3.6 shall survive the date on which all
--- --- ---
Loans and the Swing Line Loans are fully paid.
-47-
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
------------------------------
Borrower represents and warrants to the Banks that:
4.1 Existence and Qualification; Power; Compliance
----------------------------------------------
With Laws. Borrower is a corporation duly formed, validly
---------
existing and in good standing under the Laws of Nevada. Borrower
is duly qualified to transact business, and is in good standing,
in Nevada and each other jurisdiction in which the conduct of its
business or the ownership or leasing of its Properties makes such
qualification or registration necessary, except where the
------
failure so to qualify or register and to be in good standing
would not constitute a Material Adverse Effect. Borrower
has all requisite corporate power and authority to conduct
its business, to own and lease its Properties and to execute
and deliver each Loan Document to which it is a Party and to
perform the Obligations. All outstanding shares of capital
stock of Borrower are duly authorized, validly issued, fully
paid, nonassessable and issued in compliance with all applicable
state and federal securities and other Laws. Borrower is in
compliance with all Laws and other legal requirements applicable
to its business, has obtained all authorizations, consents,
approvals, orders, licenses and permits from, and has accomplished
all filings, registrations and qualifications with, or obtained
exemptions from any of the foregoing from, any Governmental
Agency that are necessary for the transaction of its
business, except where the failure so to comply, file,
------
register, qualify or obtain exemptions does not constitute a
Material Adverse Effect.
4.2 Authority; Compliance With Other Agreements and
-----------------------------------------------
Instruments and Government Regulations. The execution, delivery
--------------------------------------
and performance of the Loan Documents by Borrower have been duly
authorized by all necessary corporate action, and do not:
(a) Require any consent or approval not
heretofore obtained of any partner, director, stockholder,
security holder or creditor of Borrower;
(b) Violate or conflict with any provision
of Borrower's certificate of incorporation or bylaws;
(c) Result in or require the creation or
imposition of any Lien or Right of Others upon or with
respect to any Property now owned or leased or hereafter
acquired by Borrower;
(d) Violate any Requirement of Law
applicable to Borrower;
-48-
(e) result in a breach of or default under,
or would, with the giving of notice or the lapse of time or
both, constitute a breach of or default under, or cause or
permit the acceleration of any obligation owed under, any
indenture or loan or credit agreement or any other Con-
tractual Obligation to which Borrower is a party or by which
Borrower or any of its Property is bound or affected;
and Borrower is not in violation of, or default under, any
Requirement of Law or Contractual Obligation, or any indenture,
loan or credit agreement described in Section 4.2(e), in any
------
respect that constitutes a Material Adverse Effect.
4.3 No Governmental Approvals Required. Subject to the
----------------------------------
representations of the Banks contained in Section 11.8, no
----
authorization, consent, approval, order, license or permit
from, or filing, registration or qualification with, any
Governmental Agency is required to authorize or permit under
applicable Laws the execution, delivery and performance of
the Loan Documents by Borrower.
4.4 Subsidiaries.
------------
(a) Schedule 4.4 hereto correctly sets forth
------------
the names, the form of legal entity, number of shares of
capital stock issued and outstanding, jurisdictions of
organization and chief executive offices of all Subsidiaries
of Borrower. Except as described in Schedule 4.4, Borrower
------------
does not own any capital stock or equity interest in any
Person.
(b) Each Subsidiary of Borrower is in compliance
with all Laws and other requirements applicable to its
business and has obtained all authorizations, consents,
approvals, orders, licenses, and permits from, and each such
Subsidiary has accomplished all filings, registrations, and
qualifications with, or obtained exemptions from any of the
foregoing from, any Governmental Agency that are necessary
for the transaction of its business, except where the
------
failure so to comply, file, register, qualify or obtain
exemptions does not constitute a Material Adverse Effect.
4.5 Financial Statements. Borrower has furnished to the
--------------------
Banks (a) the audited consolidated financial statements of
Borrower and its Subsidiaries as at December 31, 1993 and for the
Fiscal Year then ended and (b) the unaudited consolidated
financial statements of Borrower and its Subsidiaries as at
September 30, 1994 and for the three Fiscal Quarters then
ended. Such financial statements fairly present the financial
-49-
condition and the results of operations of
Borrower and its Subsidiaries as at such dates and for such
periods in accordance with GAAP, consistently applied.
4.6 No Other Liabilities; No Material Adverse Effect.
------------------------------------------------
Borrower and its Subsidiaries do not have
any material liability or material contingent liability not
reflected or disclosed in the balance sheet or notes thereto
described in Section 4.5(b), other than liabilities and
------
contingent liabilities arising in the ordinary course of
business subsequent to September 30, 1994. No event or
circumstance has occurred that constitutes a Material
Adverse Effect with respect to Borrower and its Subsidiaries
since September 30, 1994 or the Closing Date.
4.7 Title to and Location of Property. Borrower and its
---------------------------------
Subsidiaries have good and valid title to all the Property
reflected in the balance sheet described in Section 4.5(b),
------
other than Property subsequently sold or disposed of in the
ordinary course of business, free and clear of all Liens and
Rights of Others, other than (i) Liens and Rights of Others
----------
permitted by Section 6.8.
---
4.8 Intangible Assets. Borrower owns, or possesses the
-----------------
right to use to the extent necessary in its business, all
trademarks, trade names, copyrights, patents, patent rights,
computer software, licenses and other Intangible Assets that are
used in the conduct of its business as now operated and which are
material to the condition (financial or otherwise), business
or operations of Borrower, and no such Intangible Asset, to
the best knowledge of Borrower, conflicts with the valid
trademark, trade name, copyright, patent, patent right or
Intangible Asset of any other Person to the extent that such
conflict constitutes a Material Adverse Effect.
4.9 Governmental Regulation. Borrower and its Subsidiaries
-----------------------
have obtained all approvals necessary under the Public
Utility Holding Company Act of 1935 and the Federal Power
Act to permit the execution, delivery and performance of the
Obligations under the Loan Documents. Neither Borrower nor
any of its Subsidiaries is subject to regulation under the
Interstate Commerce Act, the Investment Company Act of 1940
or to any other Law limiting or regulating its ability to
incur Indebtedness for money borrowed.
4.10 Litigation. Except for (a) any matter fully covered
---------- ------
(subject to applicable deductibles and retentions) by insurance
for which the insurance carrier has assumed full responsibility,
(b) any matter, or series of related matters, involving a claim
against Borrower or any of its Subsidiaries of less than
$5,000,000, (c) matters described in public documents filed
-50-
with Governmental Agencies and previously delivered to the
Banks, and (d) matters set forth in Schedule 4.10, there are
-------------
no actions, suits, proceedings or investigations pending as
to which Borrower or any of its Subsidiaries have been
served or have received notice or, to the best knowledge of
Borrower, threatened against or affecting Borrower or any of
its Subsidiaries or any Property of any of them before any
Governmental Agency. Except for matters set forth in
------
Schedule 4.10, there is no reasonable basis, to the best
-------------
knowledge of Borrower, for any action, suit, proceeding or
investigation against or affecting Borrower or any of its
Subsidiaries or any Property of any of them before any
Governmental Agency which would constitute a Material
Adverse Effect.
4.11 Binding Obligations. Each of the Loan Documents will,
-------------------
when executed and delivered by Borrower, constitute the legal,
valid and binding obligation of Borrower, enforceable
against Borrower in accordance with its terms, except as
------
enforcement may be limited by Debtor Relief Laws or
equitable principles relating to the granting of specific
performance and other equitable remedies as a matter of
judicial discretion.
4.12 No Default. No event has occurred and is continuing
----------
that is a Default or Event of Default.
4.13 Pension Plans. Schedule 4.13 correctly lists each
------------- -------------
Pension Plan which, as of the Closing Date, Borrower or any of its
ERISA Affiliates maintains or to which, as of the Closing Date,
Borrower or any ERISA Affiliate contributes or is required
to contribute. As of the Closing Date, all contributions
required to be made under any such Pension Plan have been
made to such plan or have been reflected as a liability on
the consolidated balance sheet described in Section 4.5(b).
------
There is no "accumulated funding deficiency" within the
meaning of Section 302 of ERISA or any liability to the PBGC
with respect to any Pension Plan other than a Multiemployer
Plan.
4.14 Regulations G, U and X. No part of the proceeds of any
----------------------
Advance or Swing Line Loan hereunder will be used to
purchase or carry, or to extend credit to others for the
purpose of purchasing or carrying, any "margin stock" (as
such term is defined in Regulation G) in violation of
Regulations G, U or X. Neither Borrower nor any of its
Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit
for the purpose of purchasing or carrying any such "margin
stock."
4.15 Disclosure. No written statement made by a Responsible
----------
Official of Borrower to the Administrative Agent, the Arranger,
the Swing Line Bank or any Bank in connection with this Agreement,
or in connection with any Advance or Swing Line
-51-
Loan, contains any untrue statement of a material fact or omits a
material fact necessary to make the statement made not misleading
in light of all the circumstances existing at the date the
statement was made. Borrower has not intentionally withheld from
the Banks any information with respect to any circumstance or
event which constitutes a Material Adverse Effect.
4.16 Tax Liability. Borrower and its Subsidiaries have filed
-------------
all tax returns which are required to be filed, and have paid, or
made provision for the payment of, all taxes with respect to the
periods, Property or transactions covered by said returns,
or pursuant to any assessment received by Borrower or any of
its Subsidiaries, except (a) taxes for which Borrower has
------
been fully indemnified and (b) such taxes, if any, as are
being contested in good faith by appropriate proceedings and
as to which adequate reserves have been established and
maintained. To the best knowledge of Borrower, there is no
tax assessment contemplated or proposed by any Governmental
Agency against Borrower or any of its Subsidiaries that
would constitute a Material Adverse Effect.
4.17 Pari Passu Status. No Indebtedness of Borrower is
-----------------
entitled to priority of payment over the Obligations, whether by
contract or by operation of law, provided that it is
--------
acknowledged that the First Mortgage Bonds have the benefit
of the collateral described in the Indenture. The Property
of Borrower is not subject to any Lien or Negative Pledge
not described on Schedule 4.17 or Schedule 6.8, other than
------------- ------------
Liens in favor of the Trustee under the Indenture securing
the obligations of Borrower under the Indenture.
4.18 Hazardous Materials. Except as described in Schedule
-------------------
4.18, (a) neither of Borrower nor any Subsidiary at any time has
----
disposed of, discharged, released or threatened the release
of any Hazardous Materials on, from or under the Property in
violation of any Hazardous Materials Law that would
individually or in the aggregate constitute a Material
Adverse Effect, (b) to the best knowledge of Borrower, no
condition exists that violates any Hazardous Material Law
affecting any Property except for such violations that would
not individually or in the aggregate have a Material Adverse
Effect, (c) no Property or any portion thereof is or has
been utilized by Borrower or any Subsidiary as a site for
the manufacture of any Hazardous Materials and (d) to the
extent that any Hazardous Materials are used, generated or
stored by Borrower or any Subsidiary on any Property, or
transported to or from such Property by Borrower or any
Subsidiary, such use, generation, storage and transportation
are in compliance in all material respects with all
Hazardous Materials Laws.
-52-
ARTICLE 5
AFFIRMATIVE COVENANTS
---------------------
(OTHER THAN INFORMATION AND
--------------------------
REPORTING REQUIREMENTS)
----------------------
So long as any Advance or Swing Line Loan remains
unpaid, or any other Obligation remains unpaid or
unperformed, or any portion of the Commitment remains in
force, Borrower shall, and shall cause each of its
Subsidiaries to, unless the Administrative Agent (with the
approval of the Majority Banks) otherwise consents in
writing:
5.1 Payment of Taxes and Other Potential Liens. Pay
------------------------------------------
and discharge promptly all taxes, assessments and
governmental charges or levies imposed upon any of them,
upon their respective Property or any part thereof, upon
their respective income or profits or any part thereof or
upon any right or interest of the Administrative Agent or
any Bank under any Loan Document, except that Borrower and
------
its Subsidiaries shall not be required to pay or cause to be
paid (a) any income or gross receipts tax or any other tax
on or measured by income generally applicable to banks or
(b) any tax, assessment, charge or levy that is not yet past
due, or is being contested in good faith by appropriate
proceedings, so long as the relevant entity has established
and maintains adequate reserves for the payment of the same
and by reason of such nonpayment and contest no material
item or portion of Property of Borrower and its
Subsidiaries, taken as a whole, is in jeopardy of being
seized, levied upon or forfeited.
5.2 Preservation of Existence. Preserve and maintain their
-------------------------
respective existences in the jurisdiction of their formation
and all authorizations, rights, franchises, privileges,
consents, approvals, orders, licenses, permits, or
registrations from any Governmental Agency that are
necessary for the transaction of their respective business,
and qualify and remain qualified to transact business in
each jurisdiction in which such qualification is necessary
in view of their respective business or the ownership or
leasing of their respective Properties except that a merger
------
permitted under Section 6.2 shall not constitute a violation
---
of this covenant.
5.3 Maintenance of Properties. Maintain, preserve and
-------------------------
protect all of their respective depreciable Properties in good
order and condition, subject to wear and tear in the ordinary
course of business, and not permit any waste of their
respective Properties.
5.4 Maintenance of Insurance. Maintain liability, casualty
------------------------
and other insurance (subject to customary deductibles and
retentions), with responsible insurance companies in such
-53-
amounts and against such risks as is carried by responsible
companies engaged in similar businesses and owning similar
assets in the general areas in which Borrower and its
Subsidiaries operate.
5.5 Compliance With Laws. Comply with all Requirements of
--------------------
Laws noncompliance with which constitutes a Material Adverse
Effect, except that Borrower and its Subsidiaries need not
------
comply with a Requirement of Law then being contested by any
of them in good faith by appropriate proceedings.
5.6 Inspection Rights. At any time during regular business
-----------------
hours and as often as requested (but not so as to materially
interfere with the business of Borrower or any of its
Subsidiaries), permit the Administrative Agent or any authorized
employee, agent or representative thereof, to examine, audit and
make copies and abstracts from the records and books of account
of, and to visit and inspect the Properties of, Borrower and
its Subsidiaries and to discuss the affairs, finances and
accounts of Borrower and its Subsidiaries with any of their
officers, key employees, accountants, customers or vendors.
Following the occurrence of any Default, (if in any event
the Administrative Agent does not obtain information
reasonably satisfactory to a Bank as a result of any
examination, audit, visit, inspection or discussion referred
to above) each Bank shall, upon written notice to
Administrative Agent, be permitted to exercise each of the
rights granted to the Administrative Agent by this Section.
5.7 Keeping of Records and Books of Account. Keep ade-
---------------------------------------
quate records and books of account reflecting all financial
transactions in conformity with GAAP, consistently applied,
and in material conformity with all applicable requirements
of any Governmental Agency having regulatory jurisdiction
over Borrower or any of its Subsidiaries.
5.8 Compliance With Agreements. Promptly and fully comply
--------------------------
with all Contractual Obligations under all material
agreements, indentures, leases and/or instruments to which
any one or more of them is a party, whether such material
agreements, indentures, leases or instruments are with a
Bank or another Person, except that Borrower and its
------
Subsidiaries need not comply with Contractual Obligations
(a) under any such agreements, indentures, leases or
instruments then being contested by any of them in good
faith by appropriate proceedings or (b) if the failure to
comply with such agreements, indentures, leases or
instruments does not constitute a Material Adverse Effect.
-54-
5.9 Use of Proceeds. Use the proceeds of Advances and Swing
---------------
Line Loans only for proper corporate purposes of Borrower.
5.10 Hazardous Materials Laws. Keep and maintain all
------------------------
Property and each portion thereof in compliance in all material
respects with all applicable Hazardous Materials Laws and
promptly notify the Administrative Agent in writing
(attaching a copy of any pertinent written material) of
(a) any and all material enforcement, cleanup, removal or
other governmental or regulatory actions instituted,
completed or threatened in writing by a Governmental Agency
pursuant to any applicable Hazardous Materials Laws, (b) any
and all material claims made or threatened in writing by any
Person against Borrower relating to damage, contribution,
cost recovery, compensation, loss or injury resulting from
any Hazardous Materials and (c) discovery by any Senior
Officer of Borrower of any material occurrence or condition
on any real property adjoining or in the vicinity of any
Property that could reasonably be expected to cause such
Property or any part thereof to be subject to any
restrictions on ownership, occupancy, transferability or use
of such Property under any applicable Hazardous Materials
Laws.
-55-
ARTICLE 6
NEGATIVE COVENANTS
------------------
So long as any Advance or Swing Line Loan remains
unpaid, or any other Obligation remains unpaid or
unperformed, or any portion of the Commitment remains in
force, Borrower shall not, and shall not permit any of its
Subsidiaries to, unless the Administrative Agent (with the
approval of the Majority Banks or, if required pursuant to
Section 11.2, all of the Banks) otherwise consents in
----
writing:
6.1 Disposition of Property. Make any Dispositions of its
-----------------------
Property, whether now owned or hereafter acquired, other than
-----
Dispositions of Property having an aggregate value of not
more than $100,000,000 during any Fiscal Year.
6.2 Mergers. Merge, consolidate or amalgamate with or into
-------
any Person, except:
------
(a) mergers, consolidations or amalgamations
of a Subsidiary of Borrower into Borrower;
(b) mergers, consolidations or amalgamations
in furtherance of Investments and Acquisitions permitted by
this Agreement;
provided, in each case, that (y) no Default or Event of
--------
Default occurs by reason of the consummation of such merger,
consolidation or amalgamation, and (z) Borrower is the
survivor of such merger, consolidation or amalgamation, or
Borrower's survivor expressly assumes the Obligations of
Borrower to the Administrative Agent and the Banks pursuant
to a written instrument which is in form and substance
acceptable to the Administrative Agent and the Majority
Banks.
6.3 Investments and Acquisitions. Make any Acquisition or
----------------------------
enter into any agreement to make any Acquisition, or make or
suffer to exist any Investment, except:
------
(a) Investments existing on the Closing Date
and disclosed in Schedule 4.4;
------------
(b) Investments consisting of Cash
Equivalents; and
(c) other Acquisitions and Investments in an
aggregate amount not in excess of $50,000,000.
6.4 Hostile Tender Offers. Make any offer to purchase or
---------------------
acquire, or consummate a purchase or acquisition of, 5% or more of
the capital stock of any corporation or other business
-56-
entity if the board of directors of such corporation or business
entity has notified Borrower that it opposes such offer or
purchase.
6.5 Distributions. Make any Distribution which would result
-------------
in a Default or, in any event following the occurrence of any
Event of Default, whether from capital, income or otherwise, and
whether in Cash or other Property.
6.6 ERISA Compliance. (a) Permit any Pension Plan, other
---------------- -----
than a Multiemployer Plan, to incur any material "accumulated
----
funding deficiency," as such term is defined in Section 302
of ERISA, whether or not waived, or (b in a manner which
could result in the imposition of a material Lien on any
Property of Borrower or any of its Subsidiaries pursuant to
Section 4068 of ERISA, (i) permit any Pension Plan
maintained by any of them to suffer a Termination Event or
(ii) incur withdrawal liability under any Multiemployer
Plan.
6.7 Change in Nature of Business. Make any material change
----------------------------
in the nature of the business of Borrower and its Subsidiaries,
taken as a whole, as at present conducted.
6.8 Indebtedness and Contingent Obligations. Create,
---------------------------------------
incur, assume or suffer to exist any Indebtedness or
Contingent Obligation, except:
------
(a) Indebtedness and Contingent Obligations
in favor of the Banks or the Administrative Agent under the
Loan Documents;
(b) Existing Indebtedness and Contingent
Obligations disclosed in Schedule 6.8 and, subject to
------------
Section 6.12, Indebtedness or Contingent Obligations which
----
refinance or replace such Indebtedness or Contingent
Obligations, provided, in each case, that the principal
--------
amount thereof is not increased;
(c) other unsecured Indebtedness in an
aggregate principal amount not to exceed $100,000,000
outstanding at any time; and
(d) Indebtedness pursuant to any series of
First Mortgage Bonds hereafter issued in accordance with the
terms of the Indenture.
6.9 Transactions with Affiliates. Enter into any
----------------------------
transaction of any kind with any Affiliate of Borrower other than
----- ----
(a) transactions between or among Borrower and its wholly-
owned Subsidiaries or between or among its wholly-owned Sub-
sidiaries and (b) transactions on terms at least as
favorable
-57-
to Borrower or its Subsidiaries as would be the case in an
arm's-length transaction between unrelated parties of equal
bargaining power.
6.10 Common Equity. Permit Total Common Shareholders
-------------
Equity, as of the last day of any Fiscal Quarter, to be less than
$575,000,000, plus thirty-three and one third percent (33 1/3%) of
----
the net cash proceeds to Borrower of any permanent equity capital
of Borrower issued following the Closing Date.
6.11 Total Debt to Total Capitalization. Permit the ratio
----------------------------------
of Total Debt to Total Capitalization, as of the last day of
any Fiscal Quarter, to be greater than 0.65 to 1.00.
6.12 Amendments to Certain Agreements. Amend the Indenture
--------------------------------
in a manner which is adverse to the interests of the Banks or,
in any event, to change the definition or means of
application of the definition of "Excluded Property" used
therein.
-58-
ARTICLE 7
INFORMATION AND REPORTING REQUIREMENTS
--------------------------------------
7.1 Financial and Business Information. So long as any
----------------------------------
Advance or Swing Line Loan remains unpaid, or any other
Obligation remains unpaid or unperformed, or any portion of
the Commitment remains in force, Borrower shall, unless the
Administrative Agent (with the approval of the Majority
Banks) otherwise consents in writing, deliver to the Banks,
at Borrower's sole expense:
(a) As soon as practicable, and in any event
concurrently with its submission to the Securities and
Exchange Commission, Borrower's quarterly report on form 10-
Q, together with a certificate executed by a Senior Officer
of Borrower stating that no Default or Event of Default has
occurred as of the date of such quarterly report;
(b) As soon as practicable, and in any event
concurrently with its submission to the Securities and
Exchange Commission, Borrower's annual report on form 10-K,
together with a certificate executed by a Senior Officer of
Borrower stating that no Default or Event of Default has
occurred as of the date of such annual report;
(c) As soon as practicable, and in any event
within 45 days after the end of each calendar quarter (other
than the last calendar quarter in each year, and then within
90 days after the end of such calendar quarter), a
Compliance Certificate;
(d) Promptly after the same are available,
copies of each proxy or financial statement or other report
or communication sent to the shareholders of Borrower, and
copies of all other regular, periodic and special reports
and registration statements which Borrower or a Subsidiary
of Borrower may file or be required to file under
Sections 13 or 15(d) of the Securities Exchange Act of 1934;
(e) Promptly after request by any Bank,
copies of any other specific report or other document that
was filed by Borrower or any of its Subsidiaries with any
Governmental Agency if such report or document would, under
applicable Laws, be available to any Person submitting a
request therefor to that Governmental Agency;
(f) As soon as practicable, and in any event
within one Banking Day after a Responsible Official of
Borrower obtains actual knowledge of the existence of any
-59-
condition or event which constitutes a Default or Event of
Default, written notice specifying the nature and period of
existence thereof and specifying what action Borrower or any
of its Subsidiaries are taking or propose to take with
respect thereto;
(g) Promptly upon a Senior Officer of
Borrower becoming aware, and in any event within five
Banking Days after becoming aware, of the occurrence of any
(i) "reportable event" (as such term is defined in
Section 4043 of ERISA) or (ii) "prohibited transaction" (as
such term is defined in Section 406 of ERISA or Section 4975
of the Code) in connection with any Pension Plan, other than
a Multiemployer Plan, or any trust created thereunder, a
written notice specifying the nature thereof, what action
Borrower and any of its Subsidiaries is taking or proposes
to take with respect thereto, and, when known, any action
taken by the Internal Revenue Service with respect thereto;
and
(h) Such other data and information as from
time to time may be reasonably requested by the
Administrative Agent or by any Bank.
-60-
ARTICLE 8
CONDITIONS
----------
8.1 Initial Advances and Swing Line Loans. The
-------------------------------------
obligation of each Bank to make the initial Advance to be
made by it hereunder and the obligation of the Swing Line
Bank to make the initial Swing Line Loan is subject to the
fulfillment of the following conditions precedent, each of
which shall be satisfied prior to the making of the initial
Advances and Swing Line Loans (unless all of the Banks, in
their sole and absolute discretion, shall agree otherwise):
(a) The Administrative Agent shall have
received all of the following, each of which shall be
originals unless otherwise specified, each properly executed
by a Responsible Official of each party thereto, each dated
as of the Closing Date and each in form and substance satis-
factory to the Administrative Agent, its legal counsel, and
the Banks (unless otherwise specified or, in the case of the
date of any of the following, unless the Administrative
Agent and each Bank otherwise agree or direct):
(1) executed counterparts of this
Agreement, sufficient in number for distribution to the
Banks and Borrower;
(2) the Committed Advance Notes
executed by Borrower in favor of each Bank, each in a
principal amount equal to that Bank's Pro Rata Share of
the Main Commitment (plus, in the case of the Note
delivered to the Swing Line Bank, the Swing Line
Commitment);
(3) the Competitive Advance Notes
executed by Borrower in favor of each Bank, each in a
principal amount equal to the Main Commitment;
(4) the Swing Line Note executed by
Borrower in favor of each Bank;
(5) such documentation as the
Administrative Agent may reasonably require to establish
the due organization, valid existence and good standing
of each of Borrower and its Subsidiaries, its
qualification to engage in business in each jurisdiction
in which it is engaged in business or required to be so
qualified, its authority to execute, deliver and perform
the Loan Documents, and the identity, authority and
capacity of each Responsible Official thereof authorized
to
-61-
act on its behalf, including, without limitation,
---------
certified copies of its certificate of incorporation and
amendments thereto, bylaws and amendments thereto,
certificates of good standing and/or qualification to
engage in business, tax clearance certificates,
certificates of corporate resolutions, incumbency
certificates, Certificates of Responsible Officials,
and the like;
(6) the Opinion of Counsel;
(7) a Certificate of a Responsible
Official signed by a Senior Officer of Borrower
certifying that the conditions specified in Sections
8.1(b), and 8.1(c) have been satisfied;
------ ------
(8) a Request for Loan;
(9) evidence that the execution,
delivery and performance of the Loan Documents has been
authorized and approved by the Nevada Public Service
Commission and any other Governmental Agencies, the
approval of which is required to permit Borrower to
legally enter into the Loan Documents;
(10) a Certificate of a Responsible
Official of Borrower certifying that the attached copies
of the Indenture and all amendments thereto are true,
correct and complete.
(11) such other assurances, certificates,
documents, consents or opinions as the Administrative
Agent reasonably may require.
(b) The representations and warranties of
Borrower contained in Article 4 shall be true and correct.
---------
(c) Borrower shall be in compliance with all
the terms and provisions of the Loan Documents, and no
Default or Event of Default shall have occurred and be
continuing.
(d) Borrower shall, concurrently with the
Closing Date repay in full the indebtedness to the other
lenders under the Existing Loan Documents, as well as all
interest, costs, fees and expenses associated therewith.
(e) Borrower shall have paid the fees
described in Section 3.3.
---
-62-
8.2 Any Advance or Swing Line Loan. In addition to any
------------------------------
applicable conditions precedent set forth elsewhere in this
Article 8, the obligation of each Bank to make any Advance, and
---------
the obligation of the Swing Line Bank to make any Swing Line
Loan, is subject to the following conditions precedent:
(a) except as disclosed by Borrower and
approved in writing by the Majority Banks, the represen-
tations and warranties contained in Article 4 (other than
--------- ----- ----
Sections 4.4(a), 4.6 (first sentence), and 4.10) shall be
------ --- ----
true and correct on and as of the date of the Advance or
Swing Line Loan as though made on that date;
(b) other than matters described in
Schedule 4.10, Schedule 4.18, or not required as of the
------------- -------------
Closing Date to be therein described, there shall not be
then pending or threatened any action, suit, proceeding or
investigation against or affecting Borrower or any of its
Subsidiaries or any Property of any of them before any
Governmental Agency that constitutes a Material Adverse
Effect;
(c) the Administrative Agent shall have
timely received a Request for Loan in compliance with
Article 2 (or telephonic or other request for loan referred
---------
to in the second sentence of Section 2.1(c), if applicable)
------
and shall have promptly notified each Bank that is to fund
such Advance or Swing Line Loan of such request;
(d) No Default or Event of Default, nor any
Material Adverse Effect, shall have occurred; and
(e) the Administrative Agent shall have
received, in form and substance satisfactory to the
Administrative Agent, such other assurances, certificates,
documents or consents related to the foregoing as the
Administrative Agent reasonably may require.
-63-
ARTICLE 9
EVENTS OF DEFAULT AND REMEDIES UPON EVENT OF DEFAULT
----------------------------------------------------
9.1 Events of Default. The existence or occurrence of any
-----------------
one or more of the following events, whatever the reason therefor
and under any circumstances whatsoever, shall constitute an
Event of Default:
(a) Borrower fails to pay any principal on
any of the Notes, or any portion thereof, on the date when
due; or
(b) Borrower fails to pay any interest on
any of the Notes, or any portion thereof, within two (2)
Banking Days after the date when due; or fails to pay any
other fee or amount payable to Administrative Agent or the
Banks under any Loan Document, or any portion thereof,
within two (2) Banking Days after demand therefor; or
(c) Any failure to comply with Section 7.1(f); or
------
(d) Borrower, any of its Subsidiaries or any
other Party fails to perform or observe any covenant or
agreement contained in Article 6 of the Loan Agreement; or
---------
(e) Borrower, any of its Subsidiaries or any
other Party fails to perform or observe any other covenant
or agreement contained in the Loan Agreement or any other
Loan Document within thirty (30) days after the giving of
notice by the Administrative Agent or the Majority Banks of
such Default; or
(f) Any representation or warranty made in
any Loan Document proves to have been incorrect when made or
reaffirmed in any respect that is materially adverse to the
interests of the Administrative Agent or the Banks; or
(g) Borrower or any of its Subsidiaries
(i) fails to pay the principal, or any principal install-
ment, of any present or future indebtedness for borrowed
money (other than under the Notes) in an amount in excess of
----------
$15,000,000, or any guaranty of present or future
indebtedness for borrowed money in an amount in excess of
$15,000,000, on its part to be paid, when due (or within any
stated grace period), whether at the maturity, upon
acceleration, by reason of required prepayment or otherwise
or (ii) fails to perform or observe any other term, covenant
or agreement on its part to be performed or observed, or
suffers any event to occur, in connection
-64-
with any present or future indebtedness for borrowed money in
an amount in excess of $15,000,000, or of any guaranty of
present or future indebtedness for borrowed money in excess
of $15,000,000, if as a result of such failure or sufferance
any holder or holders thereof (or an agent or trustee on its
or their behalf) has the right to declare such indebtedness
due before the date on which it otherwise would become due;
or
(h) Any Loan Document, at any time after its
execution and delivery and for any reason other than the
agreement of the Banks or satisfaction in full of all the
Obligations, ceases to be in full force and effect or is
declared by a court of competent jurisdiction to be null and
void, invalid or unenforceable in any respect which, in any
such event in the reasonable opinion of the Majority Banks,
is materially adverse to the interests of the Banks; or
Borrower denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke,
terminate or rescind same; or
(i) A judgment against Borrower or any of
its Subsidiaries is entered for the payment of money in
excess of $5,000,000 and, absent procurement of a stay of
execution, such judgment remains unbonded or unsatisfied for
thirty (30) calendar days after the date of entry of judg-
ment, or in any event, later than five (5) days prior to the
date of any proposed foreclosure sale thereunder; or
(j) Borrower or any of its Subsidiaries
institutes or consents to any proceeding under a Debtor
Relief Law relating to it or to all or any part of its
Property, or is unable or admits in writing its inability to
pay its debts as they mature, or makes an assignment for the
benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer
for it or for all or any part of its Property; or any
receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the
application or consent of that Person and the appointment
continues undischarged or unstayed for sixty (60) calendar
days; or any proceeding under a Debtor Relief Law relating
to any such Person or to all or any part of its Property is
instituted without the consent of that Person and continues
undismissed or unstayed for sixty (60) calendar days; or any
judgment, writ, warrant of attachment or execution or
similar process is issued or levied against all or any
material part of the Property of any such Person and is not
released, vacated or fully bonded within sixty (60) calendar
days after its issue or levy; or
-65-
(k) The occurrence subsequent to the Closing Date
of a Termination Event with respect to any Pension Plan,
maintained by Borrower or any ERISA Affiliate of Borrower if
the aggregate liability of Borrower and its ERISA Affiliates
under ERISA as a result thereof exceeds $5,000,000; or the
complete or partial withdrawal subsequent to the Closing
Date by Borrower or any of its ERISA Affiliates from any
Multiemployer Plan if the aggregate liability of Borrower
and its ERISA Affiliates as a result thereof exceeds
$5,000,000.
9.2 Remedies Upon Event of Default. Without limiting any
------------------------------
other rights or remedies of the Administrative Agent or the
Banks provided for elsewhere in this Agreement, or the Loan
Documents, or by applicable Law, or in equity, or otherwise:
(a) Upon the occurrence of any Event of
Default other than an Event of Default described in
Section 9.1(j):
------
(1) the commitment to make Advances and
Swing Line Loans and all other obligations of the
Administrative Agent, the Swing Line Bank or the Banks
and all rights of Borrower and any other Parties under
the Loan Documents shall be suspended without notice to
or demand upon Borrower, which are expressly waived by
Borrower, except that, subject to Section 11.2, the
------ ----
Majority Banks may waive the Event of Default or,
without waiving, determine, upon terms and conditions
satisfactory to the Majority Banks (or all of the Banks,
as the case may be), to reinstate the Commitment and
make further Advances and Swing Line Loans, which waiver
or determination shall apply equally to, and shall be
binding upon, all the Banks; and
(2) the Majority Banks may request the
Administrative Agent to, and the Administrative Agent
thereupon shall, terminate the Commitment and declare
all or any part of the unpaid principal of all Notes,
all interest accrued and unpaid thereon and all other
amounts payable under the Loan Documents to be forthwith
due and payable, whereupon the same shall become and be
forthwith due and payable, without protest, presentment,
notice of dishonor, demand or further notice of any
kind, all of which are expressly waived by Borrower.
(b) Upon the occurrence of any Event of Default
described in Section 9.1(j):
------
-66-
(1) the commitment to make Advances and
Swing Line Loans and all other obligations of the
Administrative Agent, the Swing Line Bank or the Banks
and all rights of Borrower and any other Parties under
the Loan Documents shall terminate without notice to or
demand upon Borrower, which are expressly waived by
Borrower, except that all the Banks may waive the Event
------
of Default or, without waiving, determine, upon terms
and conditions satisfactory to all the Banks, to
reinstate the Commitment and make further Advances and
Swing Line Loans, which waiver or determination shall
apply equally to, and shall be binding upon, all the
Banks; and
(2) the unpaid principal of all Notes,
all interest accrued and unpaid thereon and all other
amounts payable under the Loan Documents shall be
forthwith due and payable, without protest, presentment,
notice of dishonor, demand or further notice of any
kind, all of which are expressly waived by Borrower.
(c) Upon the occurrence of any Event of
Default, the Banks and the Administrative Agent, or any of
them, without notice to or demand upon Borrower, which are
expressly waived by Borrower, may proceed to protect,
exercise and enforce their rights and remedies under the
Loan Documents against Borrower and any other Party and such
other rights and remedies as are provided by Law or equity.
(d) The order and manner in which the Banks'
rights and remedies are to be exercised shall be determined
by the Majority Banks in their sole discretion, and all
payments received by the Administrative Agent and the Banks,
or any of them, shall be applied first to the costs and
expenses (including attorneys' fees and disbursements) of
the Administrative Agent, acting as Administrative Agent,
and of the Banks, and thereafter paid pro rata to the Banks
in the same proportions that the aggregate Obligations owed
to each Bank under the Loan Documents bear to the aggregate
Obligations owed under the Loan Documents to all the Banks,
without priority or preference among the Banks. Regardless
of how each Bank may treat payments for the purpose of its
own accounting, for the purpose of computing Borrower's
Obligations hereunder and under the Notes, payments shall be
applied first, to the costs and expenses (including
-----
attorneys' fees and disbursements) of the Administrative
Agent, acting as the
-67-
Administrative Agent, and then to the Banks, as set forth
above, second, to the payment of accrued and unpaid interest
------
due under any Loan Documents to and including the date of
such application (ratably, and without duplication, according
to the accrued and unpaid interest due under each of the Loan
Documents), and third, to the payment of all other amounts
-----
(including principal and fees) then owing to the
Administrative Agent or the Banks under the Loan Documents.
No application of payments will cure any Event of Default, or
prevent acceleration, or continued acceleration, of amounts
payable under the Loan Documents, or prevent the exercise, or
continued exercise, of rights or remedies of the Banks
hereunder or thereunder or at law or in equity.
-68-
ARTICLE 10
THE ADMINISTRATIVE AGENT
------------------------
10.1 Appointment and Authorization. Each Bank hereby
-----------------------------
irrevocably appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to exercise
such powers under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof or are reasonably
incidental, as determined by the Administrative Agent,
thereto. This appointment and authorization is intended
solely for the purpose of facilitating the servicing of the
Advances and does not constitute appointment of the
Administrative Agent as trustee for any Bank or as
representative of any Bank for any other purpose and, except
------
as specifically set forth in the Loan Documents to the
contrary, the Administrative Agent shall take such action
and exercise such powers only in an administrative and
ministerial capacity. The Administrative Agent is the agent
of the Banks only and does not assume any agency
relationship with Borrower, express or implied.
10.2 Administrative Agent and Affiliates. First
-----------------------------------
Interstate Bank of Nevada, N.A. (and each successor
Administrative Agent) has the same rights and powers under
the Loan Documents as any other Bank and may exercise the
same as though it was not the Administrative Agent, and the
term "Bank" or "Banks" includes First Interstate Bank of
Nevada, N.A. in its individual capacity. First Interstate
Bank of Nevada, N.A. (and each successor Administrative
Agent) and its Affiliates may accept deposits from, lend
money to and generally engage in any kind of banking, trust
or other business with Borrower, any Subsidiary thereof, or
any Affiliate of Borrower or any Subsidiary thereof, as if
it was not the Administrative Agent and without any duty to
account therefor to the Banks. First Interstate Bank of
Nevada, N.A. (and each successor Administrative Agent) need
not account to any other Bank for any monies received by it
for reimbursement of its fees, costs and expenses as
Administrative Agent hereunder, or for any monies received
by it in its capacity as a Bank hereunder. Neither the
Arranger, the Swing Line Bank nor the Administrative Agent
shall be deemed to hold a fiduciary relationship with any
Bank and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative
Agent, the Swing Line Bank or the Arranger.
10.3 Proportionate Interest of the Banks in any
------------------------------------------
Collateral. The Administrative Agent, on behalf of all the Banks,
----------
shall hold in accordance with the Loan Documents all collateral or
interests therein, if any, received or held by the Administrative
Agent. Subject to the Administrative Agent's, the Swing Line
Bank's and the Bank's rights to reimbursement
-69-
for their costs and expenses hereunder (including attorneys' fees
---------
and disbursements and other professional services) and subject to
the application of payments in accordance with Section 9.2(d),
------
each Bank (including the Swing Line Bank) shall have an interest
in any collateral or interests therein in the same proportions
that the aggregate Obligations beneficially owed such Bank
under the Loan Documents bear to the aggregate Obligations
owed under the Loan Documents to all the Banks, without
priority or preference among the Banks.
10.4 Banks' Credit Decisions. Each Bank agrees that it has,
-----------------------
independently and without reliance upon the Administrative
Agent, the Arranger, the Swing Line Bank, any other Bank or
the directors, officers, agents, employees or attorneys of
the Administrative Agent, the Arranger, the Swing Line Bank
or of any other Bank, and instead in reliance upon
information supplied to it by or on behalf of Borrower and
upon such other information as it has deemed appropriate,
made its own independent credit analysis and decision to
enter into this Agreement. Each Bank also agrees that it
shall, independently and without reliance upon the
Administrative Agent, the Arranger, the Swing Line Bank any
other Bank or the directors, officers, agents, employees or
attorneys of the Administrative Agent, the Arranger, the
Swing Line Bank or of any other Bank, continue to make its
own independent credit analyses and decisions in acting or
not acting under the Loan Documents.
10.5 Action by Administrative Agent; Etc..
------------------------------------
(a) The Administrative Agent and the Swing
Line Bank may assume that no Default has occurred and is
continuing, unless the Administrative Agent and the Swing
Line Bank have received written notice from Borrower stating
the nature of the Default or has received written notice from
a Bank stating the nature of the Default and that such Bank
considers the Default to have occurred and to be continuing.
(b) The Administrative Agent has only those
obligations under the Loan Documents as are expressly set
forth therein. The Arranger has no obligations under the
Loan Documents, although it is an intended third party
beneficiary of those Sections of this Agreement which refer
to the Arranger.
(c) Except for any obligation expressly set
------
forth in the Loan Documents and as long as the
Administrative Agent may assume that no Event of Default has
occurred and is continuing, the Administrative Agent may,
but shall not be required to, exercise its discretion to act
or not act, except that the Administrative Agent
------
-70-
shall be required to act or not act upon the instructions of
the Majority Banks (or of all the Banks, to the extent
required by this Agreement) and those instructions shall be
binding upon the Administrative Agent and all the Banks,
provided that the Administrative Agent shall not be required
--------
to act or not act if to do so would be contrary to any Loan
Document or to applicable Law or would result, in the
reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent.
(d) If the Administrative Agent has received
a written notice specified in clause (a), the Administrative
---
Agent shall give notice thereof to the Banks and shall act
or not act upon the instructions of the Majority Banks (or
of all the Banks, to the extent required by Section 11.2),
----
provided that the Administrative Agent shall not be required
--------
to act or not act if to do so would be contrary to any Loan
Document or to applicable Law or would result, in the
reasonable judgment of the Administrative Agent, in
substantial risk of liability to the Administrative Agent,
and except that if the Majority Banks (or all the Banks, if
------
required under this Agreement) fail, for five (5) Banking
Days after the receipt of notice from the Administrative
Agent, to instruct the Administrative Agent, then the
Administrative Agent, in its sole discretion, may act or not
act as it deems advisable for the protection of the
interests of the Banks.
(e) The Administrative Agent shall have no
liability to any Bank for acting, or not acting, as
instructed by the Majority Banks (or all the Banks, if
required under this Agreement), notwithstanding any other
provision hereof.
10.6 Liability of Administrative Agent and Arranger.
----------------------------------------------
Neither the Administrative Agent, the Arranger,
nor any of their respective directors, advisors, officers,
agents, employees or attorneys shall be liable for any
action taken or not taken by them under or in connection
with the Loan Documents, except for their own gross
------
negligence or willful misconduct. Without limitation on the
foregoing, the Administrative Agent, the Arranger and their
respective directors, advisors, officers, agents, employees
and attorneys:
(a) May treat the payee of any Note as the
holder thereof until the Administrative Agent receives
written notice of the assignment or transfer thereof, in
form satisfactory to the Administrative Agent, signed by the
payee, and may treat each Bank as the owner of that Bank's
interest in the Obligations for all purposes of this
Agreement until the Administrative Agent receives
-71-
written notice of the assignment or transfer thereof, in form
satisfactory to the Administrative Agent, signed by that
Bank.
(b) May consult with legal counsel
(including in-house legal counsel), accountants (including
--------- ---------
in-house accountants) and other professionals or experts
selected by it, or with legal counsel, accountants or other
professionals or experts for Borrower and/or its
Subsidiaries or the Banks, and shall not be liable for any
action taken or not taken by it in good faith in accordance
with any advice of such legal counsel, accountants or other
professionals or experts.
(c) Shall not be responsible to any Bank for
any statement, warranty or representation made in any of the
Loan Documents or in any notice, certificate, report,
request or other statement (written or oral) given or made
in connection with any of the Loan Documents, unless such
------
statement, warranty or representation is an independent
statement, warranty or representation of the Administrative
Agent which is not based upon information received by the
Administrative Agent from Borrower or any other Person not
affiliated with the Administrative Agent.
(d) Except to the extent expressly set forth
------
in the Loan Documents, shall have no duty to ask or inquire
as to the performance or observance by Borrower or its
Subsidiaries of any of the terms, conditions or covenants of
any of the Loan Documents or to inspect any collateral or
the Property, books or records of Borrower or its
Subsidiaries.
(e) Will not be responsible to any Bank for
the due execution, legality, validity, enforceability, gen-
uineness, effectiveness, sufficiency or value of any Loan
Document, any other instrument or writing furnished pursuant
thereto or in connection therewith, or any collateral.
(f) Will not incur any liability by acting
or not acting in reliance upon any Loan Document, notice,
consent, certificate, statement, request or other instrument
or writing believed by it to be genuine and signed or sent
by the proper party or parties.
(g) Will not incur any liability for any
arithmetical error in computing any amount paid or payable
by the Borrower or any Subsidiary or Affiliate thereof or
paid or payable to or received or receivable from any Bank
under any Loan Document, including, without limitation,
---------
-72-
principal, interest, commitment fees, Advances, Swing Line
Loans and other amounts; provided that, promptly upon
--------
discovery of such an error in computation, the
Administrative Agent, the Banks and (to the extent
applicable) Borrower and/or its Subsidiaries or Affiliates
shall make such adjustments as are necessary to correct such
error and to restore the parties to the position that they
would have occupied had the error not occurred.
10.7 Indemnification. Each Bank and the Swing Line Bank
---------------
shall, ratably in accordance with their respective portions of the
Commitment, indemnify and hold the Administrative Agent, and
the Arranger and their respective directors, advisors,
officers, agents, employees and attorneys harmless against
any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including,
---------
without limitation, attorneys' fees and disbursements) that
may be imposed on, incurred by or asserted against it or
them in any way relating to or arising out of the Loan
Documents (other than losses incurred by reason of the
failure of Borrower to pay the indebtedness represented by
the Notes and interest thereon or to pay the fees described
in Sections 3.2 and 3.3) or any action taken or not taken by
--- ---
First Interstate Bank of Nevada, N.A. as Administrative
Agent thereunder, except such as result from their own gross
------
negligence or willful misconduct. Without limitation on the
foregoing, each Bank shall reimburse the Administrative
Agent and the Arranger upon demand for that Bank's ratable
share of any cost or expense incurred by the Administrative
Agent or the Arranger in connection with the negotiation,
preparation, execution, delivery, amendment, waiver,
restructuring, reorganization (including a bankruptcy reor-
---------
ganization), enforcement or attempted enforcement of the
Loan Documents, to the extent that Borrower or any other
Party is required by Section 11.3 to pay that cost or
----
expense but fails to do so upon demand.
10.8 Successor Administrative Agent. If the Administrative
------------------------------
Agent determines that for it to continue as Administrative
Agent would result in a conflict of interest affecting the
Administrative Agent, or would create an unacceptable risk
of significant liability of the Administrative Agent to a
third party, or would otherwise be inadvisable under
prevailing standards of banking prudence, it may resign as
such at any time upon prior written notice to Borrower and
the Banks, to be effective upon a successor's acceptance of
appointment as Administrative Agent. The Administrative
Agent may also resign as such absent such a determination by
it with the consent of Borrower, which shall not be
unreasonably withheld, to be likewise effective. The Majority
Banks at any time may remove the Administrative Agent
-73-
by written notice to that effect to be effective on
such date as the Majority Banks designate. In either event:
(a) the Majority Banks shall appoint a successor
Administrative Agent, who must be from among the Banks,
provided that any resigning Administrative Agent shall be
--------
entitled to appoint a successor Administrative Agent from
among the Banks, subject to acceptance of appointment by
that successor Administrative Agent, if the Majority Banks
have not appointed a successor Administrative Agent within
thirty (30) days after the date the resigning Administrative
Agent gave notice of resignation; (b) upon a successor's
acceptance of appointment as Administrative Agent, the
successor will thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the
resigning Administrative Agent or the removed Administrative
Agent; and (c) upon the effectiveness of any resignation or
removal, the resigning Administrative Agent or the removed
Administrative Agent thereupon will be discharged from its
duties and obligations thereafter arising under the Loan
Documents other than obligations arising as a result of any
action or inaction of the resigning Administrative Agent or
the removed Administrative Agent prior to the effectiveness
of such resignation or removal.
10.9 No Obligations of Borrower. Nothing contained in this
--------------------------
Article 10 shall be deemed to impose upon Borrower any
----------
obligation in respect of the due and punctual performance by
the Administrative Agent of its obligations to the Banks
under any provision of this Agreement, and Borrower shall
have no liability to the Administrative Agent or any of the
Banks in respect of any failure by the Administrative Agent
or any Bank to perform any of its obligations to the
Administrative Agent or the Banks under this Agreement.
Without limiting the generality of the foregoing, where any
provision of this Agreement relating to the payment of any
amounts due and owing under the Loan Documents provides that
such payments shall be made by Borrower to the
Administrative Agent for the account of the Banks,
Borrower's obligations to the Banks in respect of such
payments shall be deemed to be satisfied upon the making of
such payments to the Administrative Agent in the manner
provided by this Agreement.
10.10 The Swing Line. It is intended that each Bank and the
--------------
Swing Line Bank shall have a proportionate credit risk with
respect to the credit facilities extended pursuant to this
Agreement (other than any Competitive Advances) equal for each
-----
Bank to the proportion which (a) the amount of that Bank's Pro
Rata Share of the Main Commitment plus in the case of the Swing
----
Line Bank, the Swing Line Commitment, bears to (b) the
Commitment. To the extent, if any, that the aggregate
principal amount of the Obligations (other than any
-----
Competitive Advances) owed to any Bank are ratably in excess
of its
-74-
proportionate share of the Obligations (determined in
accordance with the foregoing sentence), then each Bank
shall be deemed to have purchased a ratable unfunded
participation in the excess such Obligations owed to that
Bank. Upon the occurrence of an Event of Default, each Bank
and the Swing Line Bank agree that (x) the amount of the
Main Commitment shall be increased by the amount of the
Swing Line Commitment and the Swing Line Commitment
terminated, (y) each Bank (or, in the appropriate case, the
Swing Line Bank) shall pay to the Swing Line Bank (or, in
the appropriate case, to the Banks) such amounts as are
necessary to result in the Obligations (other than any
-----
outstanding Competitive Advances) owed to each Bank being
ratably equal, provided however, that in no event shall any
--------
Bank be obligated to make Advances to Borrower which are
greater than its pro rata share of the total Commitment.
-75-
ARTICLE 11
MISCELLANEOUS
-------------
11.1 Cumulative Remedies; No Waiver. The rights, powers,
------------------------------
privileges and remedies of the Administrative Agent and the
Banks provided herein or in any Note or other Loan Document
are cumulative and not exclusive of any right, power,
privilege or remedy provided by Law or equity. No failure
or delay on the part of the Administrative Agent or any Bank
in exercising any right, power, privilege or remedy may be,
or may be deemed to be, a waiver thereof; nor may any single
or partial exercise of any right, power, privilege or remedy
preclude any other or further exercise of the same or any
other right, power, privilege or remedy. The terms and
conditions of Article 8 hereof are inserted for the sole
---------
benefit of the Administrative Agent and the Banks; the same
may be waived in whole or in part, with or without terms or
conditions, in respect of any Loan without prejudicing the
Administrative Agent's or the Banks' rights to assert them
in whole or in part in respect of any other Loan.
11.2 Amendments; Consents. No amendment, modification,
--------------------
supplement, extension, termination or waiver of any provision of
this Agreement or any other Loan Document, no approval or consent
thereunder, and no consent to any departure by the Borrower
or any other Party therefrom, may in any event be effective
unless in writing signed by the Administrative Agent with
the approval in writing of the Majority Banks and Borrower,
and then only in the specific instance and for the specific
purpose given; and, without the approval in writing of all
the Banks, no amendment, modification, supplement,
termination, waiver or consent may be effective:
(a) To amend or modify the principal of, or
the amount of principal, or the rate of interest payable on,
any Note, or the amount of the Main Commitment, the Swing
Line Commitment or the Commitment or of any commitment fee
payable to any Bank, or any other fee or amount payable to
any Bank under the Loan Documents;
(b) To postpone any date fixed for any
payment of principal of, prepayment of principal of or any
installment of interest on, any Note or any installment of
any commitment fee, or any other fee or amount payable to
any Bank under the Loan Documents, or to extend the term of
the Commitment, or to release any collateral for the
Obligations;
(c) To amend or modify the provisions of the
definitions of "Commitment", "Main Commitment", "Majority
---------- --------------- --------
-76-
Banks", or "Swing Line Commitment", Section 6.8 or this
----- --------------------- ---
Section; or
(d) To amend or modify any provision of this
Agreement that expressly requires the consent or approval of
all the Banks.
Any amendment, modification, supplement, termination, waiver or
consent pursuant to this Section shall apply equally to, and shall
be binding upon, all the Banks and the Administrative Agent.
11.3 Costs, Expenses and Taxes. Borrower shall pay on
-------------------------
demand the reasonable costs and expenses of the Administrative
Agent (including the fees and expenses of counsel to the
Administrative Agent) in connection with the negotiation,
preparation, execution and delivery of the Loan Documents,
and of the Administrative Agent, the Swing Line Bank and the
Banks in connection with any amendment, waiver, refinancing,
restructuring, reorganization (including a bankruptcy reor-
---------
ganization), enforcement or attempted enforcement of the
Loan Documents, and any matter related thereto, including,
---------
without limitation, filing fees, recording fees, title
insurance fees, appraisal fees, search fees and other out-
of-pocket expenses and the reasonable fees and out-of-pocket
expenses of any legal counsel, independent public
accountants and other outside experts retained by the
Administrative Agent or any Bank, and including, without
---------
limitation, any costs, expenses or fees incurred or suffered
by the Administrative Agent or any Bank in connection with
or during the course of any bankruptcy or insolvency
proceedings of Borrower or any Subsidiary thereof. Borrower
shall pay any and all documentary and other taxes (other
than income or gross receipts taxes generally applicable to
banks) and all costs, expenses, fees and charges payable or
determined to be payable in connection with the filing or
recording of this Agreement, any other Loan Document or any
other instrument or writing to be delivered hereunder or
thereunder, or in connection with any transaction pursuant
hereto or thereto, and shall reimburse, hold harmless and
indemnify the Administrative Agent and the Banks from and
against any and all loss, liability or legal or other expense with
respect to or resulting from any delay in paying or failure to pay
any tax, cost, expense, fee or charge or that any of them may
suffer or incur by reason of the failure of any Party to perform
any of its Obligations. Any amount payable to the Administrative
Agent or any Bank under this Section shall bear interest from the
second Banking Day following the date of demand for payment at the
Default Rate.
11.4 Nature of Banks' Obligations. The obligations of the
----------------------------
Banks hereunder are several and not joint or joint and
-77-
several. Nothing contained in this Agreement or any other
Loan Document and no action taken by the Administrative
Agent or the Banks or any of them pursuant hereto or thereto
may, or may be deemed to, make the Banks a partnership, an
association, a joint venture or other entity, either among
themselves or with the Borrower or any Affiliate of the
Borrower. Each Bank's several obligation to make Committed
Advances is conditioned upon the performance by all other
Banks of their obligations to make similar Committed
Advances. A default by any Bank will not increase the amount
of the Commitment attributable to any other Bank, and any
Bank not in default may, if it desires, assume in such
proportion as the nondefaulting Banks agree the obligations
of any Bank in default, but is not obligated to do so.
11.5 Survival of Representations and Warranties. All
------------------------------------------
representations and warranties contained herein or in any
other Loan Document, or in any certificate or other writing
delivered by or on behalf of any one or more of the Parties
to any Loan Document, will survive the making of the Advances
hereunder and the execution and delivery of the Notes, and have
been or will be relied upon by the Administrative Agent and each
Bank, notwithstanding any investigation made by the Administrative
Agent or any Bank or on their behalf.
11.6 Notices. Except as otherwise expressly provided in the
------- ------
Loan Documents: (a) All notices, requests, demands, directions
and other communications provided for hereunder or under any other
Loan Document must be in writing and must be mailed,
telecopied, or personally delivered to the appropriate party
at the address set forth on the signature pages of this
Agreement or other applicable Loan Document or, as to any
party to any Loan Document, at any other address as may be
designated by it in a written notice sent to all other
parties to such Loan Document in accordance with this
Section and (b) Any notice, request, demand, direction or
other communication given by telecopier, must be confirmed
within 48 hours by letter mailed or delivered to the
appropriate party at its respective address. Except as
------
otherwise expressly provided in any Loan Document, if any
notice, request, demand, direction or other communication
required or permitted by any Loan Document is given by mail
it will be effective on the earlier of receipt or the third
calendar day after deposit in the United States mail with
first class or airmail postage prepaid; if given by telex or
telecopier, when sent; or if given by personal delivery,
when delivered.
11.7 Execution of Loan Documents; Counterparts. Unless the
-----------------------------------------
Administrative Agent otherwise specifies with respect to any Loan
Document, this Agreement and any other Loan Document may be
executed in any number of counterparts and any party hereto or
thereto may execute any counterpart, each of which
-78-
when executed and delivered will be deemed to
be an original and all of which counterparts of this
Agreement or any other Loan Document, as the case may be,
when taken together will be deemed to be but one and the
same instrument. The execution of this Agreement or any
other Loan Document by any party hereto or thereto will not
become effective until counterparts hereof or thereof, as
the case may be, have been executed by all the parties
hereto or thereto.
11.8 Binding Effect; Assignment.
--------------------------
(a) This Agreement and the other Loan Documents
to which Borrower is a Party will be binding upon and inure
to the benefit of Borrower, the Administrative Agent, each
of the Banks, and their respective successors and assigns,
except that Borrower may not assign its rights hereunder or
------
thereunder or any interest herein or therein without the
prior written consent of all the Banks. Each Bank
represents that it is not acquiring its Notes with a view to
the distribution thereof within the meaning of the
Securities Act of 1933, as amended (subject to any
requirement that disposition of such Notes must be within
the control of such Bank). Any Bank may at any time pledge
its Notes or any other instrument evidencing its rights as a
Bank under this Agreement to a Federal Reserve Bank, but no
such pledge shall release that Bank from its obligations
hereunder or grant to such Federal Reserve Bank the rights
of a Bank hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date,
each Bank may assign to one or more Eligible Assignees all
or any portion of its Pro Rata Share of the Main Commitment;
provided that (i) such Eligible Assignee, if not then a
--------
Bank, shall be reasonably acceptable to the Administrative
Agent, (ii) such assignment shall be evidenced by a
Commitment Assignment and Acceptance, a copy of which shall
be furnished to the Administrative Agent for registration as
hereinbelow provided, (iii) the assignment shall not assign
a Pro Rata Share of the Main Commitment equivalent to less
than $10,000,000 unless the assigning Bank thereby assigns
its entire Pro Rata Share and (iv) the effective date of any
such assignment shall be as specified in the Commitment
Assignment and Acceptance, but without the consent of the
Administrative Agent not earlier than the date which is
ten (10) Banking Days after the date the Administrative
Agent has registered the Commitment Assignment and
Acceptance in the register kept for that purpose by the
Administrative Agent described below. Upon the effective
date of such Commitment Assignment and Acceptance, the
Eligible
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Assignee named therein shall be a Bank for all
purposes of this Agreement, with the Pro Rata Share of the
Main Commitment therein set forth and, to the extent of such
Pro Rata Share, the assigning Bank shall be released from
its obligations under this Agreement. Borrower agrees that
it shall execute and deliver (against delivery by the
assigning Bank to Borrower of its Notes) to such assignee
Bank, Note evidencing that assignee Bank's Pro Rata Share of
the Main Commitment and any Competitive Advances to be made
by that Bank, and to the assigning Bank, a Note evidencing
the remaining balance Pro Rata Share retained by the
assigning Bank.
(c) By executing and delivering a Commitment
Assignment and Acceptance, the Eligible Assignee thereunder
acknowledges and agrees that: (i) other than the
representation and warranty that it is the legal and
beneficial owner of the Pro Rata Share of the Main
Commitment being assigned thereby free and clear of any
adverse claim, the assigning Bank has made 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 or sufficiency of this
Agreement or any other Loan Document; (ii) the assigning
Bank has made no representation or warranty and assumes no
responsibility with respect to the financial condition of
Borrower or the performance by Borrower of the Obligations;
(iii) it has received a copy of this Agreement, together
with copies of the most recent financial statements
delivered pursuant to Section 7.1 and such other documents
and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Commitment
Assignment and Acceptance; (iv) it will, independently and
without reliance upon the Administrative Agent or any Bank
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this
Agreement; (v) it appoints and authorizes the Administrative
Agent to take such action and to exercise such powers under
this Agreement as are delegated to the Administrative Agent
by this Agreement; and (vi) it will perform in accordance
with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a
Bank.
(d) The Administrative Agent shall maintain
at the Administrative Agent's Office a copy of each
Commitment Assignment and Acceptance delivered to it and a
-80-
register for recordation of the names and addresses of the
Banks and their respective Pro Rata Shares of the Main
Commitment. Upon receipt of a completed Commitment
Assignment and Acceptance executed by any Bank and an
Eligible Assignee, and upon receipt of a registration fee of
$3,000 from such Eligible Assignee, Administrative Agent
shall record the making of the assignments contemplated in
such Commitment Assignment and Acceptance in such register.
The entries in such register shall be conclusive in the
absence of manifest error, and the Borrower, the
Administrative Agent and the Banks may treat each Person
whose name is recorded in the register as a Bank hereunder
for all purposes of this Agreement.
(e) Each Bank may from time to time without
the consent of Borrower or the Administrative Agent grant
participations to one or more banks or other financial
institutions in a portion of its Pro Rata Share of the Main
Commitment; provided, however, that (i) such Bank's
-------- -------
obligations under this Agreement shall remain unchanged,
(ii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) the participating banks or other financial
institutions shall not be a Bank hereunder for any purpose
except, if the participation agreement so provides, for the
------
purposes of Sections 3.4, 3.5, 3.6, and 11.11 but only to
--- --- --- -----
the extent that the cost of such benefits to Borrower does
not exceed the cost which Borrower would have incurred in
respect of such Bank absent the participation,
(iv) Borrower, the Administrative Agent and the other Banks
shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under
this Agreement, (v) the consent of the holder of such
participation interest shall not be required for amendments
or waivers of provisions of the Loan Documents other than
----------
those which (A) increase the monetary amount of any of the
Commitment, (B) extend the Maturity Date or any other date
upon which any payment of money is due to the Banks or
(C) reduce the rate of interest on the Notes, or any fee or
any other monetary amount payable to the Banks and (vi) such
Bank shall notify the Administrative Agent in writing of the
identity of the participant and the amount of the
participation interest within five Banking Days after the
date granted.
(f) The Swing Line Bank may assign the
entire Swing Line Commitment subject to the conditions and
in the manner applicable to assignments of portions of the
Main Commitment set forth above.
-81-
11.9 Setoff Rights. If an Event of Default has occurred and
-------------
is continuing, the Administrative Agent or any Bank (but only
with the consent of the Majority Banks) may, to the extent
permitted by applicable Laws, exercise its rights under
applicable Laws to setoff and apply any funds in any deposit
account maintained with it by Borrower and/or any Property of
Borrower in its possession against the Obligations.
11.10 Sharing of Setoffs. Each Bank severally agrees that
------------------
if it, through the exercise of any right of setoff, banker's
lien or counterclaim against Borrower, or otherwise, receives
payment, through any means, of the Obligations held by it
that is in excess of that Bank's Pro Rata Share of such
payment, then: (a) The Bank exercising the right of setoff,
banker's lien or counterclaim or otherwise receiving such
payment shall purchase, and shall be deemed to have simulta-
neously purchased, from the other Bank a participation in
the Obligations held by the other Bank and shall pay to the
other Bank a purchase price in an amount so that the share
of the Obligations held by each Bank after the exercise of
the right of setoff, banker's lien or counterclaim or
receipt of payment shall be in the same proportion that
existed prior to the exercise of the right of setoff,
banker's lien or counterclaim or receipt of payment; and
(b) Such other adjustments and purchases of participations
shall be made from time to time as shall be equitable to
ensure that all of the Banks share any payment obtained in
respect of the Obligations ratably in accordance with each
Bank's share of the Obligations immediately prior to, and
without taking into account, the payment; provided that, if
--------
all or any portion of a disproportionate payment obtained as
a result of the exercise of the right of setoff, banker's
lien, counterclaim or otherwise is thereafter recovered from
the purchasing Bank by Borrower or any Person claiming
through or succeeding to the rights of Borrower, the
purchase of a participation shall be rescinded and the
purchase price thereof shall be restored to the extent of
the recovery, but without interest. Each Bank that
purchases a participation in the Obligations pursuant to
this Section shall from and after the purchase have the
right to give all notices, requests, demands, directions and
other communications under this Agreement with respect to
the portion of the Obligations purchased to the same extent
as though the purchasing Bank were the original owner of the
Obligations purchased. Borrower expressly consents to the
foregoing arrangements and agrees that any Bank holding a
participation in an Obligation so purchased may exercise any
and all rights of setoff, banker's lien or counterclaim with
respect to the participation as fully as if the Bank were
the original owner of the Obligation purchased; provided,
--------
however, that each Bank agrees that it shall not exercise
any right of setoff, banker's lien or counterclaim without
first obtaining the consent of the Majority Banks.
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11.11 Indemnity by Borrower. Borrower agrees to indemnify,
---------------------
save and hold harmless the Administrative Agent, the Arranger, the
Swing Line Bank and each Bank and their directors, officers,
agents, advisors, attorneys and employees (collectively the
"Indemnitees") from and against: (a) Any and all claims,
-----------
demands, actions or causes of action that are asserted
against any Indemnitee by any Person (other than the
Administrative Agent, the Arranger, the Swing Line Bank or a
Bank) if the claim, demand, action or cause of action
directly or indirectly relates to a claim, demand, action or
cause of action that such Person has or asserts against Bor-
rower, any Affiliate of Borrower or any officer, director or
shareholder of Borrower; (b) Any and all claims, demands,
actions or causes of action that are asserted against any
Indemnitee if the claim, demand, action or cause of action
arises out of or relates to the relationship between
Borrower and the Banks under any of the Loan Documents or
the transactions contemplated thereby; (c) Any and all
administrative or investigative proceedings by any
Governmental Agency arising out of or related to any claim,
demand, action or cause of action described in clauses (a)
or (b) above; and (d) Any and all liabilities, losses, costs
or expenses (including attorneys' fees and disbursements and
---------
other professional services) that any Indemnitee suffers or
incurs as a result of the assertion of any of the foregoing;
provided that no Indemnitee shall be entitled to indemnifi-
--------
cation for any loss caused by its own gross negligence or
willful misconduct. Each Indemnitee is authorized to employ
counsel of its own choosing in enforcing its rights
hereunder and in defending against any claim, demand,
action, cause of action or administrative or investigative
proceeding covered by this Section; provided that each
--------
Indemnitee shall endeavor, in connection with any matter
covered by this Section which also involves other
Indemnitees, to use reasonable efforts to avoid unnecessary
duplication of effort by counsel for all Indemnitees. Any
obligation or liability of Borrower to any Indemnitee under
this Section shall be and hereby is covered and secured by
the Loan Documents and the Collateral, and shall survive the
expiration or termination of this Agreement and the
repayment of all Loans and Swing Line Loans and the payment
and performance of all other Obligations owed to the Banks.
11.12 Nonliability of the Banks. Borrower acknowledges and
-------------------------
agrees that:
(a) Any inspections of any Property of
Borrower made by or through the Administrative Agent, the
Arranger, the Swing Line Bank or the Banks are for purposes
of administration of the Loan Documents only and Borrower is
not entitled to rely upon the same;
-83-
(b) By accepting or approving anything
required to be observed, performed, fulfilled or given to
the Administrative Agent or the Banks pursuant to the Loan
Documents, neither the Administrative Agent nor the Banks
shall be deemed to have warranted or represented the
sufficiency, legality, effectiveness or legal effect of the
same, or of any term, provision or condition thereof, and
such acceptance or approval thereof shall not constitute a
warranty or representation to anyone with respect thereto by
the Administrative Agent or the Banks;
(c) The relationship between Borrower and
the Administrative Agent, the Arranger, the Swing Line Bank
and the Banks is, and shall at all times remain, solely that
of a borrower and lenders; neither the Administrative Agent,
the Arranger, the Swing Line Bank nor the Banks shall under
any circumstance be construed to be partners or joint
venturers of Borrower or its Affiliates; neither the
Administrative Agent, the Arranger, the Swing Line Bank nor
the Banks shall under any circumstance be deemed to be in a
relationship of confidence or trust or a fiduciary
relationship with Borrower or its Affiliates, or to owe any
fiduciary duty to Borrower or its Affiliates; neither the
Administrative Agent, the Arranger, the Swing Line Bank nor
the Banks undertake or assume any responsibility or duty to
Borrower or its Affiliates to select, review, inspect,
supervise, pass judgment upon or inform Borrower or its
Affiliates of any matter in connection with their Property
or the operations of Borrower or its Affiliates; Borrower
and its Affiliates shall rely entirely upon their own
judgment with respect to such matters; and any review,
inspection, supervision, exercise of judgment or supply of
information undertaken or assumed by the Administrative
Agent, the Arranger, the Swing Line Bank or the Banks in
connection with such matters is solely for the protection of
the Administrative Agent, the Arranger, the Swing Line Bank
and the Banks and neither Borrower nor any other Person is
entitled to rely thereon; and
(d) The Administrative Agent, the Arranger,
the Swing Line Bank and the Banks shall not be responsible
or liable to any Person for any loss, damage, liability or
claim of any kind relating to injury or death to Persons or
damage to Property caused by the actions, inaction or
negligence of Borrower and/or its Affiliates and Borrower
hereby indemnifies and holds the Administrative Agent, the
Arranger, the Swing Line Bank and the Banks harmless from
any such loss, damage, liability or claim.
-84-
11.13 No Third Parties Benefited. This Agreement is made
--------------------------
for the purpose of defining and setting forth certain obligations,
rights and duties of Borrower, the Administrative Agent, the
Arranger, the Swing Line Bank and the Banks in connection
with the Loans, the Swing Line Loans and Advances, and is
made for the sole benefit of Borrower, the Administrative
Agent, the Arranger, the Swing Line Bank and the Banks, and
the Administrative Agent's, the Arranger's, the Swing Line
Bank's and the Banks' successors and assigns. Except as
------
provided in Sections 11.8 and 11.11, no other Person shall
---- -----
have any rights of any nature hereunder or by reason hereof.
11.14 Termination of Existing Loan Documents. Borrower
--------------------------------------
agrees for the benefit of the lenders and the administrative
agent under the Existing Loan Documents that, concurrently
with the execution and delivery of this Agreement, the
lending commitments under the Existing Loan Documents shall
be deemed terminated. On the Closing Date, the
Administrative Agent is hereby authorized and directed to
effect a net settlement of the amounts due to the Borrower,
the Banks and the lenders under the Existing Loan Documents.
11.15 Further Assurances. Borrower and its Subsidiaries
------------------
shall, at their expense and without expense to the Banks or the
Administrative Agent, do, execute and deliver such further
acts and documents as any Bank or the Administrative Agent
from time to time reasonably requires for the assuring and
confirming unto the Banks or the Administrative Agent of the
rights hereby created or intended now or hereafter so to be,
or for carrying out the intention or facilitating the
performance of the terms of any Loan Document.
11.16 Integration. This Agreement, together with the other
-----------
Loan Documents, comprises the complete and integrated agreement of
the parties on the subject matter hereof and supersedes all
prior agreements, written or oral, on the subject matter
hereof. In the event of any conflict between the provisions
of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control and govern;
provided that the inclusion of supplemental rights or
--------
remedies in favor of the Administrative Agent or the Banks
in any other Loan Document shall not be deemed a conflict
with this Agreement. Each Loan Document was drafted with
the joint participation of the respective parties thereto
and shall be construed neither against nor in favor of any party,
but rather in accordance with the fair meaning thereof.
11.17 Governing Law. Except to the extent otherwise
------------- ------
expressly provided therein, each loan document shall be
-85-
governed by, and construed and enforced in accordance with, the
local Laws of Nevada.
11.18 Severability of Provisions. Any provision in any Loan
--------------------------
Document that is held to be inoperative, unenforceable or
invalid as to any party or in any jurisdiction shall, as to
that party or jurisdiction, be inoperative, unenforceable or
invalid without affecting the remaining provisions or the
operation, enforceability or validity of that provision as
to any other party or in any other jurisdiction, and to this
end the provisions of all Loan Documents are declared to be
severable.
11.19 Independent Covenants. Each covenant in Articles 5, 6
--------------------- ---------- -
and 7 is independent of the other covenants in those Articles;
-
the breach of any such covenant shall not be excused by the
fact that the circumstances underlying such breach would be
permitted by another such covenant.
11.20 Headings. Article and Section headings in this
--------
Agreement and the other Loan Documents are included for
convenience of reference only and are not part of this Agreement
or the other Loan Documents for any other purpose.
11.21 Time of the Essence. Time is of the essence of the
-------------------
Loan Documents.
11.22 Purported Oral Amendments. BORROWER EXPRESSLY
-------------------------
ACKNOWLEDGES THAT THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS MAY ONLY BE AMENDED OR MODIFIED, OR THE PROVISIONS
HEREOF OR THEREOF WAIVED OR SUPPLEMENTED, BY AN INSTRUMENT
IN WRITING THAT COMPLIES WITH SECTION 11.2. BORROWER AGREES
----
THAT IT WILL NOT RELY ON ANY COURSE OF DEALING, COURSE OF
PERFORMANCE, OR ORAL OR WRITTEN STATEMENTS BY ANY
REPRESENTATIVE OF THE ADMINISTRATIVE AGENT OR ANY BANK THAT
DOES NOT COMPLY WITH SECTION 11.2 TO EFFECT AN AMENDMENT,
----
MODIFICATION, WAIVER OR SUPPLEMENT TO THE AGREEMENT OF THE
OTHER LOAN DOCUMENTS.
11.23 Jury Trial Waiver. EACH PARTY TO THIS AGREEMENT
-----------------
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT
OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT
TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO,
IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH
PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY TRIAL
COURT WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION
WITH
-86-
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the date first
above written.
BORROWER:
NEVADA POWER COMPANY, a Nevada corporation
By: STEVEN W. RIGAZIO
-------------------------------
Steven W. Rigazio, Vice
President, Finance and Planning,
Treasurer, and Chief Financial
Officer
Address:
Nevada Power Company
626 West Sahara Avenue
Las Vegas, Nevada 89102
Attention: Richard Schmalz
Telecopier: (702) 367-5036
Telephone: (702) 367-5608
-87-
BANKS:
FIRST INTERSTATE BANK OF NEVADA, N.A.,
individually, as the Swing Line Bank
and as Administrative Agent
By: STEVEN M. DASTRUP
---------------------------------
Steven M. Dastrup
Vice President
Address:
First Interstate Bank of Nevada, N.A.
Corporate Banking Division
3800 Howard Hughes Parkway
Las Vegas, Nevada 89193
Attn: Steven M. Dastrup
Vice President
Mary Beth Higgins
Vice President and Manager
Telecopier: (702) 791-6248
Telephone: (702) 791-6263
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:
-----------------------------------
Michael McCutchin
Vice President
Address:
Bank of America NT&SA
Corporate Banking
Energy/Utilities Department
555 South Flower Street, 49th Floor
Los Angeles, California 90071
Attn: Michael McCutchin
Vice President
Telecopier: (213) 228-4062
Telephone: (213) 228-4092
-88-
BANKS:
FIRST INTERSTATE BANK OF NEVADA, N.A.,
individually, as the Swing Line Bank
and as Administrative Agent
By:
---------------------------------
Steven M. Dastrup
Vice President
Address:
First Interstate Bank of Nevada, N.A.
Corporate Banking Division
3800 Howard Hughes Parkway
Las Vegas, Nevada 89193
Attn: Steven M. Dastrup
Vice President
Mary Beth Higgins
Vice President and Manager
Telecopier: (702) 791-6248
Telephone: (702) 791-6263
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: MICHAEL MCCUTCHIN
-----------------------------------
Michael McCutchin
Vice President
Address:
Bank of America NT&SA
Corporate Banking
Energy/Utilities Department
555 South Flower Street, 49th Floor
Los Angeles, California 90071
Attn: Michael McCutchin
Vice President
Telecopier: (213) 228-4062
Telephone: (213) 228-4092
-88-
NBD BANK, N.A.
By: JAMES R. FRYE
----------------------------------
James R. Frye
First Vice President
Address:
NBD Bank, N.A.
611 Woodward Avenue
Detroit, Michigan 48226
Attn: Passi Rassa
Assistant Vice President
Telecopier: (313) 225-2649
Telephone: (313) 225-1424
BARCLAYS BANK PLC
By:
----------------------------------
Vijay Rajguru
Vice President
Address:
Barclays Bank PLC
222 Broadway
New York, New York 10038
Attn: Vijay Rajguru
Vice President
Telecopier: (212) 412-7511
Telephone: (212) 412-7509
-89-
NBD BANK, N.A.
By:
----------------------------------
James R. Frye
First Vice President
Address:
NBD Bank, N.A.
611 Woodward Avenue
Detroit, Michigan 48226
Attn: Passi Rassa
Assistant Vice President
Telecopier: (313) 225-2649
Telephone: (313) 225-1424
BARCLAYS BANK PLC
By: VIJAY RAJGURU
----------------------------------
Vijay Rajguru
Vice President
Address:
Barclays Bank PLC
222 Broadway
New York, New York 10038
Attn: Vijay Rajguru
Vice President
Telecopier: (212) 412-7511
Telephone: (212) 412-7509
-89-
BANK ONE, ARIZONA, N A
By: CLIFFORD A. PAYSON
----------------------------------
Clifford A. Payson
Vice President
Address:
Bank One, Arizona, N A
241 No. Central, A714
P.O. Box 71
Phoenix, Arizona 85001
Attn: Clifford A. Payson
Vice President
Telecopier: (702) 221-2632
Telephone: (702) 221-1773
BANK OF MONTREAL
By:
----------------------------------
Warren Wimmer
Director
Address:
Bank of Montreal
Natural Resources Division
601 South Figueroa Street, Suite 4900
Los Angeles, California 90017
Attn: Warren Wimmer
Director
Telecopier: (213) 239-0680
Telephone: (213) 239-0635
-90-
BANK ONE, ARIZONA, N A
By:
----------------------------------
Clifford A. Payson
Vice President
Address:
Bank One, Arizona, N A
241 No. Central, A714
P.O. Box 71
Phoenix, Arizona 85001
Attn: Clifford A. Payson
Vice President
Telecopier: (702) 221-2632
Telephone: (702) 221-1773
BANK OF MONTREAL
By: WARREN R. WIMMER
----------------------------------
Warren Wimmer
Director
Address:
Bank of Montreal
Natural Resources Division
601 South Figueroa Street, Suite 4900
Los Angeles, California 90017
Attn: Warren Wimmer
Director
Telecopier: (213) 239-0680
Telephone: (213) 239-0635
-90-
NATIONS BANK OF TEXAS, N.A.
By: STAN REYNOLDS FOR FRANK M. JOHNSON
----------------------------------
Frank M. Johnson
Vice President
Address:
Nationsbank of Texas, N.A.
901 Main Street, 67th Floor
P.O. Box 831000
Dallas, Texas 75283-1000
Attn: Frank M. Johnson
Vice President
Telecopier: (214) 508-0980
Telephone: (214) 508-3091
MELLON BANK, N.A.
By:
----------------------------------
A. J. Sabatelle
Vice President
Address:
Mellon Bank, N.A.
One Mellon Center, Suite 4425
Energy and Utilities Group
Pittsburgh, Pennsylvania 15258-0001
Attn: A. J. Sabatelle
Vice President
Telecopier: (412) 234-8888
Telephone: (412) 236-2784
-91-
NATIONS BANK OF TEXAS, N.A.
By:
----------------------------------
Frank M. Johnson
Vice President
Address:
Nationsbank of Texas, N.A.
901 Main Street, 67th Floor
P.O. Box 831000
Dallas, Texas 75283-1000
Attn: Frank M. Johnson
Vice President
Telecopier: (214) 508-0980
Telephone: (214) 508-3091
MELLON BANK, N.A.
By: A. J. SABATELLE
----------------------------------
A. J. Sabatelle
Vice President
Address:
Mellon Bank, N.A.
One Mellon Center, Suite 4425
Energy and Utilities Group
Pittsburgh, Pennsylvania 15258-0001
Attn: A. J. Sabatelle
Vice President
Telecopier: (412) 234-8888
Telephone: (412) 236-2784
-91-