CREDIT AGREEMENT
among
NORTHWESTERN CORPORATION,
as Borrower
The Several Lenders from Time to Time Parties Hereto
and
CANADIAN IMPERIAL BANK OF COMMERCE
as Agent
Dated as of June 10, 1999
- -----------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 17
ARTICLE 2. AMOUNT AND TERMS OF COMMITMENTS 18
2.1 Commitment 18
2.2 Notes 18
2.3 Procedure for Borrowing 19
2.4 Commitment Fee; Administrative Fee 19
2.5 Optional and Mandatory Termination or Reduction 19
2.6 Optional and Mandatory Prepayments 20
2.7 Conversion and Continuation Options 21
2.8 Maximum Amounts of Tranches 21
2.9 Interest Rates; Default Rate Payment Dates 21
2.10 Computation of Interest and Fees 22
2.11 Inability to Determine Interest Rate 22
2.12 Pro Rata Treatment and Payments; Funding Reliance 23
2.13 Illegality 24
2.14 Requirements of Law 24
2.15 Taxes 25
2.16 Indemnity 27
2.17 Discretion of Lender as to Manner of Funding 28
2.18 Change of Lending Office; Replacement Lender 28
2.19 Extension Election 28
2.20 Expansion Facility 30
ARTICLE 3. REPRESENTATIONS AND WARRANTIES 30
3.1 Financial Condition 30
3.2 No Change 31
3.3 Corporate Existence; Compliance with Law 31
3.4 Corporate Power; Authorization; Enforceable
Obligations 31
3.5 No Legal Bar 32
3.6 No Material Litigation 32
3.7 No Default 32
3.8 Ownership of Property; Liens 32
3.9 Intellectual Property 32
3.10 No Burdensome Restrictions 32
3.11 Taxes 32
3.12 Margin Stock 33
3.13 ERISA 33
3.14 Holding Company; Investment Company Act; Other
Regulations 33
3.15 Purpose of Loans 34
3.16 Environmental Matters 34
3.17 Insurance 34
3.18 Accuracy and Completeness of Information 34
3.19 Leaseholds, Permits, etc 35
3.20 Year 2000 35
ARTICLE 4. CONDITIONS PRECEDENT 36
4.1 Conditions to Initial Loans 36
4.2 Conditions to Each Loan 37
ARTICLE 5. AFFIRMATIVE COVENANTS 38
5.1 Financial Statements 38
5.2 Certificates; Other Information 39
5.3 Payment of Obligations 39
5.4 Maintenance of Existence 40
5.5 Maintenance of Property; Insurance 40
5.6 Inspection of Property; Books and Records;
Discussions 40
5.7 Notices 40
5.8 Environmental Laws 41
5.9 ERISA 41
5.10 Use of Proceeds 41
5.11 Year 2000 41
5.12 Margin Stock 42
ARTICLE 6. NEGATIVE COVENANTS 42
6.1 Financial Covenants 42
6.2 Limitation on Fundamental Changes 42
6.3 Limitation on Transactions with Affiliates 42
6.4 Limitation on Liens 43
ARTICLE 7. EVENTS OF DEFAULT 43
7.1 Events of Default 43
ARTICLE 8. THE AGENT 45
8.1 Appointment 45
8.2 Delegation of Duties 46
8.3 Exculpatory Provisions 46
8.4 Reliance by Agent 46
8.5 Notice of Default 46
8.6 Non-Reliance on Agent and Other Lenders 47
8.7 Indemnification 47
8.8 Agent in Its Individual Capacity 48
8.9 Successor Agent 48
ARTICLE 9. MISCELLANEOUS 48
9.1 Amendments and Waivers 48
9.2 Notices 49
9.3 No Waiver; Cumulative Remedies 49
9.4 Survival of Representations and Warranties 50
9.5 Payment of Expenses and Taxes; Indemnification 50
9.6 Successors and Assigns; Participations and
Assignments 50
9.7 Adjustments; Setoff 52
9.8 Confidentiality 53
9.9 Effectiveness 53
9.10 Counterparts 53
9.11 Severability 54
9.12 Integration 54
9.13 GOVERNING LAW 54
9.14 Submission To Jurisdiction; Waivers 54
9.15 Acknowledgments 55
9.16 Waivers of Jury Trial 55
EXHIBITS AND SCHEDULES
Exhibit A Form of Note
Exhibit B-1 Form of Notice of Borrowing
Exhibit B-2 Form of Notice of Conversion
Exhibit C Form of Closing Certificate
Exhibit D Form of Commitment Transfer Supplement
Exhibit E Form of Compliance Certificate
Exhibit F Form of Opinion
Schedule I Lending Offices of Lender
Schedule 3.4 Required Consents of Governmental Authorities
Schedule 3.6 Litigation
Schedule 3.8 Exceptions to Title to Borrower's Properties
Schedule 3.11 Taxes
Schedule 3.13 ERISA
Schedule 3.14 Regulations Limiting Indebtedness
Schedule 6.3 Transactions with Affiliates
CREDIT AGREEMENT, dated as of June 10, 1999, between
NORTHWESTERN CORPORATION, a Delaware corporation (the
'Borrower'), the several banks and other financial institutions
from time to time party hereto (the 'Lenders') and CANADIAN
IMPERIAL BANK OF COMMERCE, as agent for the Lenders hereunder
(the 'Agent').
PRELIMINARY STATEMENT
The Borrower desires that the Lenders make revolving
credit loans in an aggregate principal amount not to exceed
$250,000,000, subject to the satisfaction of the conditions set
forth herein, which loans will be used for general corporate
purposes including, without limitation, (a) for working capital,
(b) to provide liquidity and credit support for commercial paper
to be issued by the Borrower, (c) to repay outstanding
Indebtedness, (d) to fund capital expenditures and (e) to fund
acquisitions. The Lenders are willing to provide such loans,
subject to the terms and conditions set forth herein.
In consideration of the foregoing premises and the
mutual covenants herein contained and for other good and valuable
consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
ARTICLE 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
'Acceptable Order' shall mean an order of the FERC in
form and substance reasonably acceptable to the Agent
granting the application of the Borrower encaptioned
'Application for Authorization of the Issuance of Securities
and Authorization for Exemption from Competitive Bidding and
Negotiated Offer Requirements', which application was
submitted to the FERC on June 8, 1999 under Docket No. ES99-
41-000.
'Affected Lender' shall have the meaning ascribed
thereto in Section 2.18.
'Affiliate' shall mean, as to any Person, any other
Person which, directly or indirectly, is in control of
(including all directors and officers of such Person), is
controlled by, or is under common control with, such Person.
For purposes of this definition, 'control' of a Person shall
mean the power, directly or indirectly, to direct or cause
the direction of the management and policies of such Person,
whether by ownership of voting securities, by contract or
otherwise.
'Agent' shall have the meaning ascribed thereto in the
heading hereto and shall include such other Lender or finan
cial institution as shall have subsequently been appointed
as the successor Agent pursuant to Section 8.9.
'Agreement' shall mean this Credit Agreement, as
amended, supplemented or otherwise modified from time to
time.
'Alternate Base Rate' shall mean, on any particular
date, a rate of interest per annum equal to the higher of:
(a) the rate of interest most recently announced by
CIBC-Bank at its Domestic Lending Office as its
prime rate (which rate is not necessarily intended
to be the lowest rate of interest charged by CIBC-
Bank in connection with extensions of credit); and
(b) the Federal Funds Rate for such date plus 0.50%.
'Alternate Base Rate Loans' shall mean Loans the rate
of interest applicable to which is based upon the Alternate
Base Rate.
'Applicable Margin' (a) for each loan that bears
interest at the Eurodollar Rate, the basis points (1 basis
point equaling 0.01%) per annum set forth below in the
columns identified as Level I, Level II, Level III or Level
IV below, opposite the rate applicable to such Loan based on
the percentage of the Commitment that, after giving effect
to such Loans, has been drawn.
Level I Level II Level III Level IV
S&P A- or above BBB+ BBB BBB- or
below
Moody's A3 or above Baa1 Baa2 Baa3 or
below
Eurodollar 50 bp 60 bp 70 bp 80 bp
Rate
< 33.3% of
Commitment
Drawn
> 33.3% of 60 bp 70 bp 80 bp 90 bp
the
Commitment
Drawn but <
66.6% drawn
> 66.6% of 70 bp 80 bp 90 bp 100 bp
the
Commitment
Drawn
The applicable Level shall be determined based upon the
rating on the Borrower's long-term unsecured indebtedness for
borrowed money as determined by S&P and Moody's (or any generally
recognized successor to S&P and Moody's); provided that (i) if
the ratings of S&P and Moody's on such indebtedness are at
different levels, the Applicable Margin shall be determined on
the basis of the lower of the two ratings and (ii) if neither S&P
nor Moody's (or any generally recognized successor to S&P and
Moody's) is then rating such indebtedness the Applicable Margin
shall be that corresponding to Level IV.
(b) for each Loan that bears interest at the Alternate Base
Rate, 0 basis points.
The Applicable Margin shall be increased or decreased in
accordance with the definition upon any change in the applicable
ratings, and such increased or decreased Applicable Margin shall
be effective from the date of announcement of such new ratings by
S&P or Moody's, as applicable.
'Assignee' shall have the meaning ascribed thereto in
Section 9.6(c).
'Available Commitment' means, on any date, the excess
of (a) the Commitment as of such date, over (b) the
aggregate principal amount of all Loans outstanding as of
such date.
'Borrower' shall have the meaning ascribed thereto in
the heading hereto.
'Borrowing Date' shall mean any Business Day specified
in a notice pursuant to Section 2.3 as a date on which the
Borrower requests that the Lenders make Loans hereunder.
'Business' shall have the meaning ascribed thereto in
Section 3.16(b).
'Business Day' shall mean (a) a day other than a
Saturday, Sunday or other day on which commercial banks in
New York City are authorized or required by law to close and
(b) with respect to the date of
(i) making or continuing any Loans as, or
converting any Loans from or into, Eurodollar Loans,
(ii) making any payment or prepayment or principal
of or payment of interest on any portion of the
principal amount of any Loans being maintained as
Eurodollar Loans, or
(iii) the Borrower giving any notice (or the
number of Business Days to elapse prior to the
effectiveness thereof) in connection with any matter
referred to in the immediately preceding clause (b)(i)
or (b)(ii),
any such day on which dealings in Dollars are also carried
on in the interbank market in London, England.
'Capital Stock' shall mean any and all shares,
interests, participations or other equivalents (however
designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase
any of the foregoing.
'Change of Control' shall mean the occurrence of any of
the following:
(a) any Person or 'group' (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of
1934) (i) shall have acquired beneficial ownership of 40% or
more of the aggregate outstanding classes of Capital Stock
having voting power in the election of directors of the
Borrower or (ii) shall obtain the power (whether or not
exercised) to elect a majority of the Borrower's directors;
(b) a majority of the persons who comprised the Board
of Directors of the Borrower on the Closing Date shall be
replaced, unless such replacement shall have been approved
by at least two-thirds of the Board of Directors of the
Borrower then still in office who either were members of
such Board of Directors on the Closing Date or whose
election as a member of such Board of Directors was
previously so approved; or
(c) the Borrower shall be liquidated or dissolved.
'CIBC-Bank' shall mean Canadian Imperial Bank of
Commerce, a Canadian chartered bank, or one or more of its
agencies, branches or affiliates it its or their respective
capacity or capacities, as the case may be, as a Lender or
Lenders hereunder.
'Closing Date' shall mean the date on which the
conditions precedent set forth in Section 4.1 shall be
satisfied or waived.
'Code' shall mean the Internal Revenue Code of 1986, as
amended from time to time.
'Commitment' shall mean, as to any Lender, the
obligation of such Lender to make Loans to the Borrower in
an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Lender's
name on Schedule I, as such amount may be reduced from time
to time pursuant to this Agreement. As of the Closing Date,
the aggregate amount of the Commitments shall be equal to
$170,000,000.
'Commitment Fee' shall mean with respect to any Lender,
a fee that shall be payable on the average daily Available
Commitment from time to time at the basis points per annum
(1 basis point equaling 0.01%) set forth below in the
columns identified as Level I, Level II, Level III or Level
IV.
Level I Level II Level III Level IV
S&P A- or BBB+ BBB BBB- or
above below
Moody's A3 or Baa1 Baa2 Baa3 or
above below
Commitment 10 bp 15 bp 20 bp 25 bp
Fee
The applicable Level shall be determined based upon the
ratings on the Borrower's long-term unsecured indebtedness for
borrowed money as determined by S&P and Moody's (or any generally
recognized successor to S&P and Moody's); provided that (i) if
the ratings of S&P and Moody's on such indebtedness are at
different levels, the Commitment Fee shall be determined on the
basis of the lower of the two ratings and (ii) if neither S&P nor
Moody's (or any generally recognized successor to S&P and
Moody's) is then rating such indebtedness, then the Applicable
Margin shall be determined on the basis of the lower of the two
ratings and (iii) if neither S&P nor Moody's (or any generally
recognized successor to S&P and Moody's) is then rating such
indebtedness, then the Commitment Fee shall be that corresponding
to Level IV.
The Commitment Fee shall be increased or decreased in
accordance with this definition upon any change in the applicable
ratings, and such increased and decreased ratings shall be
effective from the date of the announcement of such new ratings
by S&P and Moody's, as applicable.
'Commitment Percentage' shall mean, as to any Lender,
at any time, the percentage which such Lender's Commitment
then constitutes of the aggregate Commitment.
'Commitment Period' shall mean the period from and
including the Closing Date to, but not including, the
Termination Date, or such earlier date on which the
Commitment shall terminate as provided herein.
'Commitment Termination Date' shall mean June 10,
2000; provided that upon receipt of an Acceptable Order (a)
the Borrower may elect to extend such date to June 10, 2002,
or (b) the Borrower may elect to further extend such date
pursuant to Section 2.19.
'Commitment Transfer Supplement' shall have the meaning
ascribed thereto in Section 9.6(c).
'Commonly Controlled Entity' shall mean an entity,
whether or not incorporated, which is under common control
with the Borrower within the meaning of Section 4001(a)(14)
of ERISA or is part of a group which includes the Borrower
and which is treated as a single employer under Section 414
of the Code.
'Compliance Certificate' shall have the meaning
ascribed thereto in Section 5.2(b).
'Consolidated Subsidiary' shall mean, at any time, any
Subsidiary or other Person the accounts of which are
consolidated with the Borrower in its consolidated financial
statements as of such time.
'Contractual Obligation' shall mean as to the Borrower
or any Subsidiary, any provision of any security issued by
the Borrower or any Subsidiary or of any agreement,
instrument or other undertaking to which the Borrower or any
Subsidiary is a party or by which it or any of its property
is bound.
'Default' shall mean any of the events specified in
Section 7.1, whether or not any requirement for the giving
of notice, the lapse of time, or both, or any other
condition, has been satisfied.
'Dollars' and '$' shall mean dollars in lawful currency
of the United States of America.
'Domestic Lending Office' shall mean, initially, the
office of each Lender designated as such in Schedule I (or
designated pursuant to a Commitment Transfer Supplement),
and thereafter, such other office of such Lender, if any,
which shall be making or maintaining Alternate Base Rate
Loans as may be designated from time to time by notice from
such Lender to the Borrower and the Agent.
'Environmental Laws' shall mean any and all foreign,
Federal, state, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees,
requirements of any Governmental Authority or other
Requirements of Law (including common law) regulating,
relating to or imposing liability or standards of conduct
concerning public health, public and workplace safety or
protection of the environment, as now or may at any time
hereafter be in effect.
'ERISA' shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time.
'Eurodollar Base Rate' shall mean with respect to each
day during each Interest Period pertaining to a Eurodollar
Loan, the rate per annum determined on the basis of the rate
for deposits in Dollars for a period equal to such Interest
Period commencing on the first day of such Interest Period
and appearing on Page 3750 of the Telerate screen at or
about 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period or, if such rate
does not appear on such page or otherwise on such service,
such rate shall be determined by reference to such other
publicly available service for displaying Eurodollar rates
as may be agreed between the Agent and the Borrower or, in
the absence of such agreement, the 'Eurodollar Base Rate'
shall be the rate of interest per annum equal to the average
(rounded upwards, if necessary, to the nearest 1/100 of 1%)
of the rates per annum at which Dollar deposits in
immediately available funds are offered by CIBC-Bank to
prime international banks in the offshore dollar market at
or about 11:00 a.m., New York time, two Business Days prior
to the beginning of such Interest Period for delivery on the
first day of such Interest Period, and in an amount
approximately equal to the amount of the CIBC-Bank
Eurodollar Loan and for a period approximately equal to such
Interest Period.
'Eurodollar Loans' shall mean Loans the rate of
interest applicable to which is based upon the Eurodollar
Rate.
'Eurodollar Office' shall mean, initially, the office
of each Lender designated as such in Schedule I (or
designated pursuant to a Commitment Transfer Supplement),
and thereafter, such other office of such Lender, if any,
which shall be making or maintaining Eurodollar Loans as may
be designated from time to time by notice from such Lender
to the Borrower and the Agent.
'Eurodollar Rate' shall mean with respect to each day
during each Interest Period pertaining to a Eurodollar Loan,
a rate per annum determined for such day in accordance with
the following formula (rounded upward to the nearest 1/100th
of 1%):
Eurodollar Base Rate
1.00 - Eurodollar Reserve Requirements
'Eurodollar Reserve Requirements' shall mean, for any
day as applied to a Eurodollar Loan, the aggregate (without
duplication) of the rates (expressed as a decimal fraction)
of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and
emergency reserves) under any regulations of the Board of
Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect
thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as 'Eurocurrency
Liabilities' in Regulation D of such Board) maintained by a
member bank of such System.
'Event of Default' shall mean any of the events
specified in Section 7.1; provided that any requirement for
the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
'Expansion Commitments' shall have the meaning ascribed
thereto in Section 2.20.
'Expansion Facility Amendment' shall have the meaning
ascribed thereto in Section 2.20.
'Expansion Loans' shall have the meaning ascribed
thereto in Section 2.20.
'Extending Lender' shall have the meaning ascribed
thereto in Section 2.19.
'Extension Election' shall have the meaning ascribed
thereto in Section 2.19.
'FDIC' shall mean the Federal Deposit Insurance
Corporation or any successor thereto.
'Federal Funds Rate' shall mean for any particular
date, an interest rate per annum equal to the interest rate
offered in the interbank market to the Lenders as the
overnight Federal Funds Rate at or about 10:00 a.m., New
York City time, on such day (or, if such day is not a
Business Day, on the next preceding Business Day).
'Fee Letter' shall mean the letter from the Agent to
the Borrower dated March 16, 1999.
'FERC' shall mean the Federal Energy Regulatory
Committee.
'Financing Lease' shall mean any lease of property,
real or personal, the obligations of the lessee in respect
of which are required in accordance with GAAP to be
capitalized on a balance sheet of the lessee.
'Funded Debt' shall mean, as of any date of
determination, the sum of all Indebtedness of the Borrower
and each of its Consolidated Subsidiaries (without
duplication) other than (i) Indebtedness of the type
described in clause (f) of the definition thereof and (ii)
Non-recourse Debt.
'GAAP' shall mean generally accepted accounting
principles in the United States of America as in effect from
time to time consistent with those utilized in preparing the
audited financial statements referred to in Section 3.1;
provided that in the event that any change in accounting
principles required by the promulgation of any rule,
regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of
Certified Public Accountants (or successor thereto or any
agency with similar functions) results in a change in the
calculation of any of the financial covenants hereunder, the
Required Lenders and the Borrower will in good faith enter
into negotiations in order to reevaluate such financial
covenants in light of such change; and provided further that
this provision shall not operate as a waiver of any right,
remedy, power or privilege available to any Lender under any
provision of any Loan Document or pursuant to any applicable
law.
'Governmental Authority' shall mean any national
government (United States or foreign), any state or other
political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
'Guarantee Obligation' shall mean as to any Person (the
'guaranteeing person'), any obligation of the guaranteeing
person (including, without limitation, any reimbursement,
counter-indemnity or similar obligation), guaranteeing or in
effect guaranteeing any Indebtedness, lease, dividend or
other similar obligation (the 'primary obligation') of any
other third Person (other than any Consolidated Subsidiary)
(the 'primary obligor') in any manner, whether directly or
indirectly, including, without limitation, any obligation of
the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to
advance or supply funds (x) for the purchase or payment of
any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or
otherwise to maintain the net worth, liquidity or solvency
of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the
owner of any such primary obligation against loss in respect
thereof; provided that the term Guarantee Obligation shall
not include (x) obligations payable by their terms solely in
Capital Stock of the Borrower, and (y) endorsements of
instruments for deposit or collection in the ordinary course
of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a)
an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of
the instrument embodying such Guarantee Obligation, unless
such primary obligation and the maximum amount for which
such guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as
determined by the Borrower in good faith.
'Hedging Agreements' shall mean (a) any interest rate
protection agreement, interest rate future, interest rate
option, interest rate swap, interest rate cap or other
interest rate hedge or arrangement under which the Borrower
is a party or a beneficiary and (b) any other agreement or
arrangement designed to limit or eliminate the risk and/or
exposure of the Borrower to fluctuations in currency
exchange rates.
'Indebtedness' of any Person at any date shall mean,
(a) all indebtedness of such Person for borrowed money or
for the deferred purchase price of property or services
(other than current trade liabilities incurred in the
ordinary course of business and payable in accordance with
customary practices), (b) any other indebtedness of such
Person which is evidenced by a note, bond, debenture or
similar instrument, (c) all obligations of such Person under
Financing Leases, (d) all outstanding reimbursement
obligations of such Person in respect of outstanding letters
of credit, acceptances and similar obligations issued or
created for the account of such Person, (e) all liabilities
secured by any Lien on any property owned by such Person
even though such Person has not assumed or otherwise become
liable for the payment thereof, (f) liabilities arising
under Hedging Agreements (other than interest rate caps) of
such Person and (g) all Guarantee Obligations of such
Person.
'Indenture' shall mean the General Mortgage Indenture
and Deed of Trust dated as of August 1, 1993 between the
Borrower and The Chase Manhattan Bank, as trustee.
'Insolvency' shall mean with respect to any
Multiemployer Plan, the condition that such Plan is
insolvent within the meaning of Section 4245 of ERISA.
'Insolvent' shall mean pertaining to a condition of
Insolvency.
'Intellectual Property' shall have the meaning set
ascribed thereto in Section 3.9.
'Interest Payment Date' shall mean (a) as to any
Alternate Base Rate Loan, the last day of each March, June,
September and December to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan having an
Interest Period of three months or less, the last day of
such Interest Period, and (c) as to any Eurodollar Loan
having an Interest Period longer than three months, each day
which is three months, or a whole multiple thereof, after
the first day of such Interest Period and the last day of
such Interest Period.
'Interest Period' with respect to any Eurodollar Loan
shall mean:
(a) initially, the period commencing on the
borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two,
three or six months thereafter, as selected by the
Borrower in its Notice of Borrowing or Notice of
Conversion, as the case may be, given with respect
thereto; and
(b) thereafter, each period commencing on the
last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one, two,
three or six months thereafter, as selected by the
Borrower by irrevocable notice to the Agent not less
than three Business Days prior to the last day of the
then current Interest Period with respect thereto;
provided that, the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period pertaining to a
Eurodollar Loan would otherwise end on a day that is
not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the
result of such extension would be to carry such
Interest Period into another calendar month in which
event such Interest Period shall end on the immediately
preceding Business Day;
(ii) any Interest Period that would otherwise
extend beyond the Termination Date, shall end on the
Termination Date or such date of final payment, as the
case may be;
(iii) any Interest Period pertaining to a
Eurodollar Loan that begins on the last Business Day of
a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month; and
(iv) the Borrower shall select Interest Periods so
as not to require a payment or prepayment of any
Eurodollar Loan during an Interest Period for such
Loan.
'Lien' shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien
(statutory or other), charge or other security interest or
any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or
other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the
foregoing and the filing of any financing statement under
the Uniform Commercial Code or comparable law of any
jurisdiction, other than any such filing in connection with
any true lease or operating lease).
'Loan Documents' shall mean this Agreement and each
other agreement, instrument or certificate executed and
delivered to the Lenders pursuant hereto including, without
limitation, the Notes, and the Fee Letter.
'Loans' shall have the meaning ascribed thereto in
Section 2.1.
'Material Adverse Effect' shall mean (a) (i) in all
instances other than Section 4.1(k) a material adverse
effect on the business, operations, property, or condition
(financial or otherwise) of the Borrower and its
Consolidated Subsidiaries (taken as a whole) and (ii) solely
in the case of Section 4.1(k) a material adverse effect on
the business, operations, property or condition (financial
or otherwise) of the Borrower or any Material Subsidiary or
(b) any adverse effect on the validity or enforceability of
this Agreement, any of the Notes or any of the other Loan
Documents, or the rights or remedies of the Agent or the
Lenders hereunder or thereunder.
'Mandatory Redeemable Stock' shall mean, with respect
to any Person, any share of such Person's Capital Stock, to
the extent that it is (a) redeemable, payable or required to
be purchased or otherwise retired or extinguished, or
convertible into any Indebtedness or other liability,
obligation, covenant or duty of or binding upon, or any term
or condition to be observed by or binding upon such Person
or any of its assets, (i) at a fixed or determinable date,
whether by operation of a sinking fund or otherwise, (ii) at
the option of any other Person or (iii) upon the occurrence
of a condition not solely within the control of such Person
such as a redemption required to be made utilizing future
earnings or (b) convertible into Capital Stock which has the
features set forth in clause (a).
'Material Subsidiary' shall mean, as at any time of
determination, each present or future Subsidiary of the
Borrower other than any Subsidiary which as at the end of
the fiscal quarter immediately preceding such time of
determination, shall have a net worth (calculated as the
stockholder's equity of such Subsidiary less any Mandatory
Redeemable Stock and disregarding any liabilities of such
Subsidiary to an Affiliate) equal to or less than 10% of the
Net Worth of the Borrower and its Consolidated Subsidiaries
as at the end of such fiscal quarter, or net income equal to
or less than 10% of the Net Income of the Borrower and its
Consolidated Subsidiaries for the four fiscal quarter period
ending at the end of such fiscal quarter.
'Materials of Environmental Concern' shall mean any
gasoline or petroleum (including crude oil or any fraction
thereof) or petroleum products or any hazardous or toxic
substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls and urea-
formaldehyde insulation.
'Moody's' shall mean Moody's Investors Service, Inc.
'Multiemployer Plan' shall mean a Plan which is a
multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
'Net Income' for any period shall mean, net income (or
deficit) of the Borrower and its Consolidated Subsidiaries
for such period determined on a consolidated basis in
accordance with GAAP.
'Net Worth' shall mean for any date the sum of
shareholders' equity and preferred stock, preference stock
and preferred securities of the Borrower and its
Consolidated Subsidiaries on such date, in each case as
described in the consolidated financial statements of the
Borrower.
'Non-Approving Lender' shall have the meaning ascribed
thereto in Section 2.19.
'Non-Excluded Taxes' shall have the meaning ascribed
thereto in Section 2.15.
'Non-Recourse Debt' shall mean any Indebtedness as to
which the Borrower does not have any direct or indirect
liability whether as primary obligor, guarantor, surety,
provider of collateral security or through any other right
or arrangement of any nature (including any election by the
holder of such indebtedness) providing direct or indirect
assurance of payment or performance of any such obligations
in whole or in part (other than direct or indirect liability
which by its terms may be payable solely in Capital Stock of
the Borrower).
'Note' shall have the meaning ascribed thereto in
Section 2.2.
'Notice of Borrowing' shall have the meaning ascribed
thereto in Section 2.3.
'Notice of Conversion' shall have the meaning ascribed
thereto in Section 2.7.
'Obligations' shall mean the unpaid principal of and
interest on (including, without limitation, interest
accruing after the maturity of the Loans and interest
accruing after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower or any Subsidiary, as
applicable, whether or not a claim for post-filing or post-
petition interest is allowed in such proceeding and whether
the Agent, for the benefit of the Lenders, is oversecured or
undersecured with respect to such Loans) the Notes and all
other obligations and liabilities of the Borrower to the
Agent and the Lenders, whether direct or indirect, absolute
or contingent, due or to become due, now existing or
hereafter incurred, which may arise under, out of, or in
connection with, the Credit Agreement, the Notes, the other
Loan Documents or any other document made, delivered or
given in connection therewith or herewith, whether on
account of principal, interest, fees, indemnities, costs,
expenses (including, without limitation, all fees and
disbursements of counsel to the Agent or the Lenders that
are required to be paid by the Borrower pursuant to the
terms of the Credit Agreement, any other Loan Document) or
otherwise.
'Participant' shall have the meaning ascribed thereto
in Section 9.6(b).
'PBGC' shall mean the Pension Benefit Guaranty
Corporation established pursuant to Subtitle A of Title IV
of ERISA or any successor thereto.
'Permitted Liens' shall mean
(a) inchoate Liens for taxes, assessments or
governmental charges or levies or Liens for taxes,
assessments, governmental charges or levies not
yet due or which are being contested in good faith
by appropriate proceedings; provided that adequate
reserves with respect thereto are maintained on
the books of the Borrower or its Consolidated
Subsidiaries, as the case may be, in conformity
with GAAP;
(b) statutory Liens of carriers', warehousemen's,
mechanics', materialmen's, repairmen's or other
similar Liens arising in the ordinary course of
business which are not overdue for a period of
more than 60 days or which are being contested in
good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other
social security legislation;
(d) deposits securing liability to insurance carriers
under insurance or self-insurance arrangements,
and deposits to secure true leases in the ordinary
course;
(e) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary
course of business and landlords' Liens which, in
the aggregate, do not in any case materially
detract from the value of the property subject
thereto or materially interfere with the ordinary
conduct of the business of the Borrower;
(f) any attachment or judgment Lien not constituting
an Event of Default under Section 7.1(h);
(g) Liens to secure Non-Recourse Debt of the Borrower
or any Consolidated Subsidiary;
(h) Liens under the Indenture, as such Indenture may
be amended or supplemented from time to time;
(i) Liens created in connection with the acquisition
by the Borrower or any Consolidated Subsidiary of
assets and the continuation of such Liens in
connection with any refinancing of the
Indebtedness secured by such Liens; provided that
such Liens are limited to the assets so acquired;
(j) Liens on the assets and/or rights to receive
income of any Person that exist at the time such
Person becomes a Consolidated Subsidiary and the
continuation of such Liens in connection with any
refinancing or restructuring of the obligations
secured by such Liens;
(k) any Lien vested in any licensor or permitter for
obligations or acts to be performed, the
performance of which obligations or acts is
required under licenses or permits, so long as the
performance of such obligations or acts is not
delinquent or is being contested in good faith and
by appropriate proceedings;
(l) any controls, restrictions, obligations, duties or
other burdens imposed by any federal, state,
municipal or other law, or by any rule, regulation
or order of any Governmental Authority, upon any
property of the Borrower or the operation or use
thereof or upon the Borrower with respect to any
of its property or the operation or use thereof or
with respect to any franchise, grant, license,
permit or public purpose requirement, or any
rights reserved to or otherwise vested in any
Governmental Authority to impose any such
controls, restrictions, obligations, duties or
other burdens;
(m) Liens granted on air or water pollution control,
sewage or solid waste disposal, or other similar
facilities of the Borrower in connection with the
issuance of pollution control revenue bonds, in
connection with financing the cost of, or the
construction or acquisition of, such facilities;
(n) any right which any Governmental Authority may
have by virtue of any franchise, license, contract
or statute to purchase, or designate a purchaser
of or order the sale of, any property of the
Borrower upon payment of cash or reasonable
compensation therefor or to terminate any
franchise, license or other rights or to regulate
the property and business of the Borrower.
(o) party-wall agreements and agreements for and
obligations relating to the joint or common use of
property owned solely by the Borrower or owned by
the Borrower in common or jointly with one or more
parties;
(p) liens securing indebtedness incurred by a Person,
other than the Borrower which indebtedness has
been neither assumed nor guaranteed by the
Borrower nor on which it customarily pays
interest, existing on property which the Borrower
owns jointly or in common with such Person or such
Person and others, if there is a bar against
partition of such property which would preclude
the sale of such property by such other Person or
the holder of such lien without the consent of the
Borrower.
(q) Prepaid Liens; and
(r) Liens existing on the date hereof.
'Person' shall mean an individual, partnership,
corporation, limited liability company, business trust,
joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of
whatever nature.
'Plan' shall mean at a particular time, any employee
benefit plan which is defined in Section 3(2) of ERISA and
in respect of which the Borrower or any Subsidiary is, an
'employer' as defined in Section 3(5) of ERISA, other than a
Multiemployer Plan.
'Prepaid Lien' shall mean any Lien securing
Indebtedness for the payment of which money in the necessary
amount (taking into consideration the amount of income
reasonably projected to be earned on such amount) shall have
been irrevocably deposited in trust with a trustee or other
holder of such Lien; provided, however, that if such
Indebtedness is to be redeemed or otherwise prepaid prior to
the stated maturity thereof, any notice requisite to such
redemption or prepayment shall have been given in accordance
with the mortgage or other instrument creating such Lien or
irrevocable instructions to give such notice shall have been
given to such trustee or other holder.
'Properties' shall have the meaning ascribed thereto in
Section 3.16(a).
'Register' shall have the meaning ascribed thereto in
Section 9.6(d).
'Regulation U' shall mean Regulation U of the Board of
Governors of the Federal Reserve System as in effect from
time to time, or any successor regulation.
'Reorganization' shall mean with respect to any
Multiemployer Plan, the condition that such plan is in
reorganization within the meaning of Section 4241 of ERISA.
'Replacement Extending Lender' shall have the meaning
ascribed thereto in Section 2.19.
'Replacement Lender' shall have the meaning ascribed
thereto in Section 2.18.
'Reportable Event' shall mean any of the events set
forth in section 4043(c) of ERISA other than those events
for which the notice requirement has been waived under
applicable regulations.
'Required Lenders' shall mean Lenders whose Commitment
Percentages aggregate at least 51% of the Commitments then
outstanding.
'Requirement of Law' as to any Person shall mean the
articles of organization and by-laws or other organizational
or governing documents of such Person, and any law, treaty,
rule or regulation or determination of an arbitrator or a
court or other Governmental Authority, 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 Officer' shall mean, with respect to a
Person, the chairman of the board of directors, the chief
executive officer or the president of such Person or, with
respect to financial matters, the chief financial officer of
such Person.
'S&P' shall mean Standard & Poor's Rating Group, a
division of The McGraw-Hill Companies, Inc.
'SEC' shall mean the Securities and Exchange
Commission.
'SEC Reports' shall mean the reports filed by the
Borrower with the SEC on Form 10-K, Form 10-Q or Form 8-K or
any successor Form.
'Single Employer Plan' shall mean any Plan which is
covered by Title IV of ERISA, but which is not a
Multiemployer Plan.
'Special Purpose Subsidiary' shall mean a direct or
indirect Subsidiary of the Borrower, formed solely for the
purpose of acquiring and owning certain assets and issuing
Indebtedness which is secured solely by such assets and as
to which the Borrower and each other Subsidiary has no
Guarantee Obligation or other liability or obligation to
contribute additional equity or for which the Borrower or
any other Subsidiary has general partner liability or other
derivative liability by operation of law or contract. The
term 'Special Purpose Subsidiary' shall also include any
Subsidiary whose assets consist solely of equity interests
in another Special Purpose Subsidiary.
'Subsidiary' shall mean a corporation, partnership or
other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or
such other ownership interests having such power only by
reason of the occurrence of a contingency) to elect a
majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time
owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries,
or both, by such Person. Unless otherwise expressly stated
herein all references to any Subsidiary are to direct or
indirect subsidiaries of the Borrower.
'Super Majority Lenders' shall mean Lenders whose
Commitment Percentages aggregate at least 66 _% of the
Commitments then outstanding.
'Tangible Net Worth' shall mean the excess of (a) the
assets of the Borrower and its Consolidated Subsidiaries
(excluding intercompany items) which, in accordance with
GAAP, are tangible assets, after deducting adequate reserves
in each case where, in accordance with GAAP, a reserve is
proper, over (b) all liability of the Borrower and its
Consolidated Subsidiaries (excluding intercompany items as
determined in accordance with GAAP); provided that in no
event shall there be included as tangible assets patents,
trademarks, trade names, copyrights, licenses, goodwill,
deferred charges (other than assets classified as deferred
charges under FAS 71) or treasury stock or any securities
issued by or any liabilities of the Borrower or any
Subsidiary.
'Termination Date' shall mean June 10, 2000; provided
that upon receipt of an Acceptable Order (a) the Borrower
may elect to extend such date to June 10, 2002, or (b) the
Borrower may elect to further extend such date pursuant to
Section 2.19.
'Total Capital' shall mean on any date (a) Funded Debt
on such date plus (b) the sum of (i) stockholders' equity
and (ii) preferred stock, preference stock and preferred
securities of the Borrower and its Consolidated Subsidiaries
on such date, in each case as described in the consolidated
financial statements of the Borrower.
'Tranche' shall mean the collective reference to
Eurodollar Loans, the then current Interest Periods with
respect to all of which begin on the same date and end on
the same later date (whether or not such Loans shall
originally have been made on the same day).
'Transferee' shall have the meaning ascribed thereto in
Section 9.6(f).
'Type' shall mean as to any Loan, its nature as an
Alternate Base Rate Loan or a Eurodollar Loan.
'Year 2000 Problem' shall mean the risk that computer
application used by the Borrower or its Subsidiaries (and in each
case its material service suppliers, key vendors and significant
customers) may be unable to recognize and perform properly date-
sensitive functions involving certain data prior to, and any date
after, December 31, 1999.
1.2 Other Definitional Provisions. (a) Unless
otherwise specified therein, all terms defined in this Agreement
shall have their respective defined meanings when used in the
Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein, in the Notes and in any
certificate or other document made or delivered pursuant hereto,
accounting terms relating to the Borrower or any Subsidiary not
defined in Section 1.1 and accounting terms partly defined in
Section 1.1, to the extent not defined, shall have the respective
meanings given to them under GAAP.
(c) The words 'hereof', 'herein' and 'hereunder' and
words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision
of this Agreement, and Article, Section, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall
be equally applicable to both the singular and plural forms of
such terms.
ARTICLE 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitment. (a) Subject to the terms and
conditions hereof, each Lender agrees to make (i) revolving
credit loans ('Loans') to the Borrower from time to time during
the Commitment Period in an aggregate principal amount at any one
time outstanding not to exceed such Lender's Commitment;
provided, that no Lender shall be permitted or required to make
any Loan if after giving effect thereto
(x) the aggregate outstanding principal amount of
Loans made by such Lender would exceed such Lender's
Commitment; or
(y) the aggregate outstanding principal amount of
the Loans made by all the Lenders would exceed the
Commitment.
Subject to the foregoing, during the Commitment Period, the
Borrower may use the Commitment by borrowing, prepaying the Loans
in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof. Subject to Section 2.19, the
Commitment shall terminate on the Commitment Termination Date.
(b) The Loans may from time to time be (i) Eurodollar
Loans, (ii) Alternate Base Rate Loans or (iii) a combination
thereof, as determined by the Borrower and notified to the Agent
in accordance with Section 2.3; provided that no Loan shall be
made as a Eurodollar Loan (i) prior to the date an Acceptable
Order is delivered by the Borrower to the Agent or (ii) after the
day that is one month prior to the Termination Date.
2.2 Notes. The Loans made by each Lender shall be
evidenced by one or more promissory notes of the Borrower, each
substantially in the form of Exhibit A, with appropriate
insertions as to payee, date and principal amount (a 'Note'),
payable to the order of such Lender and in a principal amount
equal to the lesser of (i) the amount of the initial Commitment
of such Lender and (ii) the aggregate unpaid principal amount of
all Loans made by such Lender. Each Lender is hereby authorized
to record the date, Type and amount of each Loan made by it, each
continuation thereof, each conversion of all or a portion thereof
to another Type, the date and amount of each payment or
prepayment of principal thereof and, in the case of Eurodollar
Loans, the length of each Interest Period with respect thereto,
on the schedule annexed to and constituting a part of its Note,
and any such recordation shall constitute prima facie evidence of
the accuracy of the information so recorded absent manifest
error. Each Note shall (i) be dated the Closing Date, (ii) be
stated to mature on the Termination Date and (iii) provide for
the payment of interest in accordance with Section 2.9.
2.3 Procedure for Borrowing. The Borrower may borrow
under the Commitment during the Commitment Period on any Business
Day; provided that the Borrower shall give the Agent an
irrevocable notice substantially in the form of Exhibit B-1 (a
'Notice of Borrowing') (which notice must be received by the
Agent prior to 10:00 a.m., New York City time, (a) three Business
Days prior to the requested Borrowing Date, if all or any part of
the requested Loans are to be Eurodollar Loans, or (b) two
Business Days prior to the requested Borrowing Date, if none of
the requested Loans are to be Eurodollar Loans), specifying (i)
the amount to be borrowed, (ii) the requested Borrowing Date,
(iii) whether the borrowing is to be of Eurodollar Loans,
Alternate Base Rate Loans or a combination thereof and (iv) if
the borrowing is to be entirely or partly of Eurodollar Loans,
the amounts of such Eurodollar Loans and the lengths of the
initial Interest Periods therefor. Each borrowing under the
Commitment shall be in an amount equal to (x) in the case of
Alternate Base Rate Loans, $5,000,000 or a whole multiple of
$1,000,000 in excess thereof (or, if the then Available
Commitment is less than $5,000,000, such lesser amount) and (y)
in the case of Eurodollar Loans, $5,000,000 or a whole multiple
of $1,000,000 in excess thereof. Upon receipt of any such notice
from the Borrower, the Agent shall promptly notify each Lender
thereof. Each Lender will make the amount of its pro rata share
of each borrowing available to the Agent for the account of the
Borrower at the office of the Agent specified in Section 9.2
prior to 11:00 a.m., New York City time, on the Borrowing Date
requested by the Borrower in funds immediately available to the
Agent. Such borrowing will then be made available to the
Borrower by the Agent in the manner specified by the Borrower in
such Notice of Borrowing in the aggregate of the amounts made
available to the Agent by the Lenders and in like funds as
received by the Agent.
2.4 Commitment Fee; Administrative Fee. (a) The
Borrower agrees to pay to the Agent for the Account of each
Lender the Commitment Fee for the period from and including the
first day of the Commitment Period to the Termination Date,
quarterly in arrears on the last day of each March, June,
September and December and on the Termination Date or such
earlier date as the Commitments shall terminate as provided
herein, commencing on the first of such dates to occur after the
date hereof.
(a) The Borrower agrees to pay to the Agent, for its
own account for services rendered by the Agent, concurrent with
signing of this Agreement, the fees set forth in the Fee Letter.
2.5 Optional and Mandatory Termination or Reduction.
(a) The Borrower shall have the right, upon not less than three
Business Days' notice (if any Eurodollar Loans are outstanding at
such time) or two Business Days' notice (otherwise) to the Agent,
to terminate the Commitments or, from time to time, to reduce the
amount of the Commitments. Any such reduction shall be in an
amount equal to $1,000,000 or a whole multiple thereof and shall
reduce permanently the Commitments then in effect; provided that
no such termination or reduction shall be permitted if, after
giving effect thereto and to any prepayments of the Loans made on
the effective date thereof, the aggregate principal amount of the
Loans then outstanding would exceed the Commitments then in
effect. Any reduction of the Commitments shall be accompanied by
payment in full of all accrued Commitment Fees on the amount so
reduced to and including the date of such reduction. The Agent
agrees promptly to notify the Lenders of any notice of reduction
or termination received by the Agent.
(b) Subject to Section 2.19(b), in the event the
Borrower makes an Extension Election and at least the Required
Lenders but fewer than all the Lenders consent to such Extension
Election, then on the Termination Date (as in effect without
giving effect to such Extension Election), the Commitments shall
be reduced to an amount equal to the aggregate Commitments of the
Lenders that shall have consented to such Extension Election.
(c) The Commitments shall be reduced to zero on the
Termination Date.
2.6 Optional and Mandatory Prepayments. (a) Subject
to Section 2.16, the Borrower may, at any time and from time to
time prepay the Loans, in whole or in part, without premium or
penalty, upon at least three Business Days' irrevocable written
notice to the Agent, specifying the date and amount of prepayment
and whether the prepayment is of Eurodollar Loans, Alternate
Base Rate Loans or a combination thereof, and, if of a
combination thereof, the amount allocable to each. If any such
notice is given, the amount specified in such notice shall be due
and payable on the date specified therein, together with any
amounts payable pursuant to Section 2.16, accrued interest to
such date on the amount prepaid and any outstanding fees and
expenses then due and owing. Partial prepayments and optional
prepayments of the Loans shall be applied to the Loans but shall
not reduce the Commitments unless the Borrower so specifies in
its written notice to the Agent. Partial prepayments shall be in
an aggregate principal amount of $1,000,000 or a whole multiple
of $100,000 in excess thereof.
(b) If at any time
(i) the aggregate outstanding principal amount of
the Loans made by any Lender exceeds such Lender's
Commitment; or
(ii) the outstanding aggregate principal amount of
the Loans made by all Lenders exceeds the Commitments;
then the Borrower, will promptly and, in any event, within one
Business Day, make a mandatory prepayment of the Loans to the
Agent for the benefit of the Lenders in an aggregate amount equal
to such excess.
(c) Each prepayment of the Loans pursuant to this
Section 2.6 shall be accompanied by payment in full of all
accrued interest thereon, to and including the date of such
prepayment, together with any additional amounts owing pursuant
to Section 2.16 and any outstanding fees and expenses due and
owing.
2.7 Conversion and Continuation Options. (a) The
Borrower may elect from time to time to convert Eurodollar Loans
to Alternate Base Rate Loans by giving the Agent prior
irrevocable notice of such election substantially in the form of
Exhibit B-2 (a 'Notice of Conversion') (which notice must be
received by the Agent by at least 10:00 a.m., New York City time,
three Business Days prior to such election); provided that any
such conversion of Eurodollar Loans may be made only on the last
day of an Interest Period with respect thereto. The Borrower may
elect from time to time to convert Alternate Base Rate Loans to
Eurodollar Loans by giving the Agent prior irrevocable notice of
such election (which notice must be received by the Agent by at
least 10:00 a.m., New York City time, three Business Days prior
to such election). Any such Notice of Conversion to Eurodollar
Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice, the
Agent shall promptly notify each Lender thereof. All or any part
of the outstanding Eurodollar Loans and Alternate Base Rate Loans
may be converted as provided herein; provided that (i) no Loan
may be converted into a Eurodollar Loan when any Default has
occurred and is continuing and (ii) no Loan may be converted into
a Eurodollar Loan (x) prior to the date that the Borrower
delivers an Acceptable Order to the Agent or (y) after the date
that is one month prior to the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon
the expiration of the then current Interest Period with respect
thereto by the Borrower giving notice to the Agent, in accordance
with the applicable provisions of the term 'Interest Period' set
forth in Section 1.1 of the length of the next Interest Period to
be applicable to such Loans; provided that no Eurodollar Loan may
be continued as such (i) when any Default has occurred and is
continuing or (ii) after the date that is one month prior to the
Termination Date; provided, further, that if the Borrower shall
fail to give any required notice as described above in this
paragraph, or if such continuation is not permitted pursuant to
the preceding proviso, such Loans shall be automatically
converted to Alternate Base Rate Loans on the last day of such
then expiring Interest Period. The Agent agrees to notify the
Lenders of any notice of continuation referred to herein received
by the Agent.
2.8 Maximum Amounts of Tranches. All borrowings,
conversions and continuations of Loans hereunder and all
selections of Interest Periods hereunder shall be in such amounts
and shall be made pursuant to such elections so that, after
giving effect thereto, the aggregate principal amount of the
Loans comprising each Tranche shall be equal to $10,000,000 or a
whole multiple of $1,000,000 in excess thereof. There shall not
be more than ten Tranches at any one time outstanding.
2.9 Interest Rates; Default Rate Payment Dates. (a)
Each Eurodollar Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to
the Eurodollar Rate determined for the first day of such Interest
Period (subject to daily adjustments, if any, required by changes
in the Eurocurrency Reserve Requirements) plus the Applicable
Margin.
(b0 Each Alternate Base Rate Loan shall bear interest
at a rate per annum equal to the Alternate Base Rate plus the
Applicable Margin.
(c0 If an Event of Default has occurred and is
continuing, the Loans shall bear interest at a rate per annum
equal to the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions of this Section plus 2% from
the date of occurrence of such Event of Default until the date
such Event of Default is cured or waived (after as well as before
judgment). In addition, should any interest on such Loans or any
Commitment Fees or other amount (other than principal) payable
hereunder not be paid when due (whether at the stated maturity,
by acceleration or otherwise), such overdue amount shall bear
interest (to the extent permitted by law in the case of interest
on interest) at a rate per annum as determined pursuant to the
preceding sentence, in each case, from the date of such non-
payment until such amount is paid in full (after as well as
before judgment).
(d0 Interest shall be payable in arrears on each
Interest Payment Date; provided that interest accruing pursuant
to Section 2.9(c) shall be payable from time to time on demand.
2.10 Computation of Interest and Fees. (a) Commitment
Fees and the Alternate Base Rate interest shall be calculated on
the basis of a 365/366 day year and the Eurodollar Rate interest
shall be calculated on the basis of a 360-day year for the actual
days elapsed. The Agent shall as soon as practicable notify the
Borrower and the Lenders of each determination of a Eurodollar
Rate. Any change in the interest rate on a Loan resulting from a
change in the Alternate Base Rate, the Eurodollar Reserve
Requirements or the Applicable Margin shall become effective as
of the opening of business on the day on which such change
becomes effective. The Agent shall, as soon as practicable,
notify the Borrower and the Lenders of the effective date and the
amount of each such change in interest rate.
(b0 Each determination of an interest rate by the
Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Agent, at the request of the
Borrower, shall deliver to the Borrower a statement showing the
quotations used by the Agent in determining any interest rate
pursuant to Section 2.9(a).
2.11 Inability to Determine Interest Rate. If prior to
the first day of any Interest Period:
(a0 the Agent shall have reasonably determined (which
determination shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the
relevant market, adequate and reasonable means do not exist
for ascertaining the Eurodollar Rate for such Interest
Period, or
(b0 the Agent shall have received notice from the
Required Lenders that the Eurodollar Rate determined or to
be determined for such Interest Period will not adequately
and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining its
affected Loans during such Interest Period,
the Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If
such notice is given, (x) any Eurodollar Loans requested to be
made on the first day of such Interest Period shall be made as
Alternate Base Rate Loans, (y) any Loans that were to have been
converted on the first day of such Interest Period to Eurodollar
Loans shall be continued as Alternate Base Rate Loans and (z) any
outstanding Eurodollar Loans shall be converted, on the first day
of such Interest Period, to Alternate Base Rate Loans. Until
such notice has been withdrawn by the Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall
the Borrower have the right to convert Base Rate Loans to
Eurodollar Loans.
2.12 Pro Rata Treatment and Payments; Funding Reliance.
(a) Each borrowing by the Borrower of Loans from the Lenders
hereunder, each payment by the Borrower on account of any
Commitment Fee hereunder and any reduction of the Commitments of
the Lenders shall be made pro rata according to the respective
Commitment Percentages of the Lenders. Each payment (including
each prepayment) by the Borrower on account of principal of and
interest on the Loans shall (except as may be required as a
result of Section 2.16) be made pro rata according to the
respective outstanding principal amounts of the Loans then held
by the Lenders. All payments (including prepayments) to be made
by the Borrower hereunder and under the Notes, whether on account
of principal, interest, fees or otherwise, shall be made without
setoff or counterclaim and shall be made prior to 12:00 noon, New
York City time, on the due date thereof to the Agent, for the
account of the Lenders, at the Agent's office specified in
Section 9.2, in Dollars and in immediately available funds. The
Agent shall distribute such payments to the Lenders promptly upon
receipt in like funds as received. If any payment hereunder
(other than payments on the Eurodollar Loans) becomes due and
payable on a day other than a Business Day, such payment shall be
extended to the next succeeding Business Day, and, with respect
to payments of principal and interest thereon, shall be payable
at the then applicable rate during such extension. If any
payment on a Eurodollar Loan becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended
to the next succeeding Business Day (and, with respect to
payments of principal and interest thereon, shall be payable at
the then applicable rate during such extension) unless the result
of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the
immediately preceding Business Day.
(b) Unless the Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will
not make available to the Agent the amount that would constitute
its Commitment Percentage of such borrowing, the Agent may assume
that such Lender is making such amount available to the Agent,
and the Agent may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. If such amount
is not made available to the Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to the Agent, on
demand, such amount with interest thereon at a rate equal to the
daily average Federal Funds Rate for the period until such Lender
makes such amount immediately available to the Agent. A
certificate of the Agent submitted to any Lender with respect to
any amounts owing under this Section shall be conclusive in the
absence of manifest error. If such Lender's Commitment
Percentage of such borrowing is not made available to the Agent
by such Lender within three Business Days of such Borrowing Date,
the Agent shall also be entitled to recover such amount with
interest thereon at the rate per annum applicable to the
applicable Loan, on demand, from the Borrower.
2.13 Illegality. Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of
Law after the date hereof or in the interpretation or application
thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the
Commitment of such Lender hereunder to make Eurodollar Loans,
continue Eurodollar Loans as such and convert Alternate Base Rate
Loans to Eurodollar Loans shall forthwith be suspended until such
condition shall cease to exist and (b) such Lender's Loans then
outstanding as Eurodollar Loans, if any, shall be converted
automatically to Alternate Base Rate Loans on the respective last
days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any
such conversion of a Eurodollar Loan occurs on a day which is not
the last day of the then current Interest Period with respect
thereto, the Borrower, shall pay to such Lender such amounts, if
any, as may be required pursuant to Section 2.16.
2.14 Requirements of Law. (a) If the adoption of or
any change in any Requirement of Law or in the interpretation or
application thereof or compliance by any Lender with any request
or directive (whether or not having the force of law) from any
central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Lender to any tax of any
kind whatsoever with respect to this Agreement, any Note or
any Eurodollar Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof
(except for Non-Excluded Taxes covered by Section 2.15 and
changes in the rate of tax on the overall net income of such
Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar
requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of
funds by, any office of such Lender which is not otherwise
included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to
such Lender, by an amount which such Lender reasonably deems to
be material, of making, converting into, continuing or
maintaining Eurodollar Loans, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the
Borrower shall promptly pay such Lender, upon its demand, any
additional amounts necessary to compensate such Lender for such
increased cost or reduced amount receivable. If any Lender
becomes entitled to claim any additional amounts pursuant to this
Section, it shall promptly notify the Borrower through the Agent,
of the event by reason of which it has become so entitled. A
certificate as to any additional amounts payable pursuant to this
Section submitted by such Lender through the Agent to the
Borrower shall be conclusive in the absence of manifest error.
This covenant shall survive the termination of this Agreement and
the payment of the Obligations hereunder.
(b0 If any Lender shall have determined that the
adoption of or any change in any Requirement of Law regarding
capital adequacy or in the interpretation or application thereof
or compliance by such Lender or any corporation controlling such
Lender with any request or directive regarding capital adequacy
(whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof has or shall have
the effect of reducing the rate of return on such Lender's or the
corporation's capital as a consequence of its obligations
hereunder to a level below that which such Lender or such
corporation could have achieved but for such change or compliance
(taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, after
submission by such Lender to the Borrower (with a copy to the
Agent) of a written request therefor, the Borrower shall pay to
such Lender the additional amount or amounts as will compensate
such Lender for such reduction. This covenant shall survive the
termination of this Agreement and the payment of the Obligations
hereunder.
2.15 Taxes. (a) All payments made by the Borrower
under this Agreement and the Notes shall be made free and clear
of, and without deduction or withholding for or on account of,
any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by
any Governmental Authority, excluding net income taxes and
franchise taxes (imposed in lieu of net income taxes) imposed on
the Agent or any Lender as a result of a present or former
connection between the Agent or such Lender and the jurisdiction
of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than
any such connection arising solely from the Agent or such Lender
having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement or the
Notes). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ('Non-Excluded Taxes')
are required to be withheld from any amounts payable to the Agent
or any Lender hereunder or under the Notes, the amounts so
payable to the Agent or such Lender shall be increased to the
extent necessary to yield to the Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts
specified in this Agreement and the Notes; provided that the
Borrower shall not be required to increase any such amounts
payable to any Lender if such Lender fails to comply with the
requirements of paragraph (b) of this Section. Whenever any Non-
Excluded Taxes are payable by the Borrower, as promptly as
possible thereafter, the Borrower shall send to the Agent for its
own account or for the Account of such Lender, as the case may
be, a certified copy of an original official receipt received by
the Borrower showing payment thereof. If the Borrower fails to
pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Agent the required receipts or
other required documentary evidence, the Borrower shall indemnify
the Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Lenders as a result of
any such failure. The covenants in this Section shall survive
the termination of this Agreement and the payment of the Notes
and payment of the Obligations hereunder.
(b0 Each Lender shall:
(i) deliver to the Borrower and the Agent (A) in
the case of a Lender that is not incorporated under the laws
of the United States or any state thereof, either (x) two
duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, or successor applicable form, as
the case may be, or, (y) if such Lender is not a 'bank'
within the meaning of Section 881(c)(3)(A) of the Code and
intends to claim exemption from U.S. Federal withholding tax
under Section 871(h) or Section 881(c) of the Code with
respect to payments of 'portfolio interest', a Form W-8, or
any subsequent versions thereof or successors thereto
together with a certificate executed by such Lender
representing that (1) such Lender is not a bank for purposes
of Section 881(c) of the Code, is not a 10 percent
shareholder (within the meaning of Section 871(h)(3)(B) of
the Code) of the Borrower and is not a controlled foreign
corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Code), claiming complete exemption
from U.S. Federal withholding tax on payments of interest by
the Borrower under this Agreement and the other Loan
Documents and (2) that the Lender has received in
replacement of any Note held by or assigned to it, a QFL
Note in accordance with this Section 2.15, and (B) in the
case of any other Lender, an Internal Revenue Service Form W-
8 or W-9, as applicable, or successor applicable form, as
the case may be;
(ii) deliver to the Borrower and the Agent two
further copies of any such form or certification on or
before the date that any such form or certification expires
or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously
delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing
and complete such forms or certifications as may reasonably
be requested by the Borrower or the Agent;
unless in any such case an event (including, without limitation,
any change in treaty, law or regulation) has occurred prior to
the date on which any such delivery would otherwise be required
which renders all such forms inapplicable or which would prevent
such Lender from duly completing and delivering any such form
with respect to it and such Lender so advises the Borrower and
the Agent. Such Lender shall certify (i) in the case of a Form
1001 or 4224, that it is entitled to receive payments under this
Agreement without deduction or withholding of any United States
federal income taxes and (ii) in the case of a Form W-8 or W-9,
that it is entitled to an exemption from United States backup
withholding tax. Each Person that shall become a Lender or a
Participant pursuant to Section 9.6 shall, upon the effectiveness
of the related transfer, be required to provide all the forms and
statements required pursuant to this Section; provided that, in
the case of a Participant, such Participant shall furnish all
such required forms and statements to the Lenders from which the
related participation shall have been purchased.
(c0 Any Lender that is not a 'bank' within the meaning
of Section 881(c)(3)(A) of the Code and satisfies the
requirements of Section 2.15(b)(i)(A)(y) (a 'Qualified Foreign
Lender') shall upon receipt of the written request of the Agent
or the Borrower and may, upon its own written request to the
Agent, exchange any Note held by or assigned to it for a
qualified foreign lender Note ( a 'QFL Note'). A QFL Note shall
be in the form of Note, as applicable, but shall contain the
following legend,'This Note is a QFL Note, and as such, ownership
of the obligation represented by such QFL Note may be transferred
only in accordance with Section 2.15 of the Credit Agreement.'
Any QFL Note issued in replacement of any existing Note pursuant
to this Section shall be (i) dated the Closing Date, (ii) issued
in the name of the entity in whose name such existing Note was
issued and (iii) issued in the same principal amount as such
existing Note. Any Note replaced pursuant to this Section is
sometimes referred to herein as a 'Replaced Note'.
(d0 The Borrower agrees that, upon the request of or
delivery of a request to a Qualified Foreign Lender pursuant to
paragraph (c) of this Section, it shall execute and deliver a QFL
Note to the Agent in replacement of the Replaced Note surrendered
in connection with such request conforming to the requirements of
this paragraph. Each Qualified Foreign Lender shall surrender
its Note in connection with any replacement pursuant to this
Section 2.15. Upon receipt by the Agent, in connection with any
replacement, of a QFL Note and the existing Note to be replaced
by such QFL Note in accordance with this paragraph, the Agent
shall forward the QFL Note to the Lender which has surrendered
its Note for replacement by such QFL Note and shall forward the
surrendered Note to the Company marked 'canceled'. Once issued,
QFL Notes (i) shall be deemed to and shall be 'Notes' for all
purposes under the Loan Documents, (ii) may not be exchanged for
Notes which are not QFL Notes, notwithstanding anything to the
contrary in the Loan Documents and (iii) shall at all times
thereafter be QFL Notes, including, without limitation, following
any transfer or assignment thereof.
(e0 Notwithstanding anything to the contrary in the
Loan Documents, the QFL Notes are registered obligations as to
both principal and interest with the Borrower and transfer of the
obligations underlying such QFL Note may be effected only by
surrender of the QFL Note to the Borrower and either reissuance
by the Borrower of such QFL Note to the transferee or issuance by
the Borrower of a new QFL Note to the transferee. A QFL Note
shall only evidence the Lender's or an assignee's right, title
and interest in and to the related obligation, and in no event is
a QFL Note to be considered a bearer instrument or obligation.
This Section 2.15 shall be construed so that the obligations
underlying the QFL Notes are at all times maintained in
'registered form' within the meaning of Sections 871(h)(2) and
881(c)(3) of the Code.
2.16 Indemnity. The Borrower agrees to indemnify each
Lender and to hold each Lender harmless from any loss or expense
which such Lender may sustain or incur as a consequence of (a)
default by the Borrower in payment when due of the principal
amount of or interest on any Eurodollar Loan, (b) default by the
Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans after the Borrower has given a
notice requesting the same, (c) default by the Borrower in making
any prepayment after the Borrower has given a notice thereof or
(d) the making of a prepayment or conversion of Eurodollar Loans
on a day which is not the last day of an Interest Period with
respect thereto including, without limitation, in each case, any
such loss or expense arising from the redeployment of funds
obtained by it or from fees payable to terminate the deposits
from which such funds were obtained. This covenant shall survive
the termination of this Agreement and the payment of the
Obligations hereunder.
2.17 Discretion of Lender as to Manner of Funding.
Notwithstanding any other provisions of this Agreement (but
subject to Section 2.18), each Lender shall be entitled to fund
and maintain its funding of all or any part of its Loans in any
manner it sees fit, it being understood that for the purposes of
this Agreement all determinations hereunder shall be made
assuming each Lender had actually funded and maintained each
Eurodollar Loan through the purchase of deposits of Dollars in
the London interbank market having a maturity corresponding to
each Loan's Interest Period and bearing an interest rate equal to
the Eurodollar Rate for such Interest Period.
2.18 Change of Lending Office; Replacement Lender. (a)
Each Lender agrees that if it makes any demand for payment under
Section 2.14 or Section 2.15 or if any adoption or change of the
type described in Section 2.13 shall occur with respect to it,
such Lender will use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions and so long
as such efforts would not be disadvantageous to it as determined
in its sole discretion) to designate a different lending office
if the making of such a designation would reduce or obviate the
need for the Borrower to make payments under Section 2.14 or
Section 2.15, or would eliminate or reduce the effect of any
adoption or change described in Section 2.13.
(b) In determining the amount of any claim for
reimbursement or compensation hereunder, each Lender will use
reasonable methods of calculation consistent with such methods
customarily employed by such Lender in similar situations.
(c) Each Lender will notify the Borrower either
directly or through the Agent of any event giving rise to a claim
under Sections 2.13, 2.14, 2.15 or 2.16 promptly after the
occurrence thereof, which notice shall be accompanied by a
certificate of such Lender setting forth in reasonable detail the
circumstances of such claim.
(d) If any Lender, other than (in its capacity as a
Lender) the Agent (an 'Affected Lender'), seeks payment or
indemnification from the Borrower pursuant to Section 2.14 or
Section 2.15(a) (without prejudice to any amounts then due to
such Lender under such Sections) that are not applicable to all
Lenders then the Borrower may designate another Lender or another
bank or financial institution acceptable to the Agent to assume,
in accordance with Section 9.6, all (but not less than all) the
Commitments, Loans and other rights and obligations of such
Affected Lender hereunder (a 'Replacement Lender'), in each case,
on a date mutually acceptable to the Replacement Lender, the
Affected Lender, the Borrower and the Agent, without recourse
upon, warranty by, or expense to, such Affected Lender or the
Agent, for a purchase price equal to the outstanding principal
amount of the Loans of such Affected Lender plus all interest
accrued thereon and all other amounts owing to such Affected
Lender hereunder, and, upon such assumption and purchase by the
Replacement Lender, such Replacement Lender shall be deemed a
'Lender' for purposes of this Agreement and the other Loan
Documents and such Affected Lender shall cease to be a 'Lender'
for such purposes and shall no longer have any obligations
hereunder.
2.19 Extension Election. (a) Provided that the
Borrower shall have received all necessary consents and approvals
of all applicable Governmental Authorities, at least 60 but not
more than 90 days prior to the first annual anniversary of the
Closing Date and each such annual anniversary thereafter, the
Borrower, by delivering a written notice to the Agent (which
notice shall be irrevocable), may request that the Commitment
Termination Date and the Termination Date be extended for an
additional one year period. The Agent shall notify each Lender
that the Borrower has made such request promptly upon its receipt
of such notice. Each Lender, within 30 days after receipt of
such notice from the Agent, shall advise the Agent as to whether
it elects to extend its Commitment (such election to be in the
sole and absolute discretion of each Lender). Any Lender that
fails to respond to within such 30-day period shall be deemed to
have elected not to extend its Commitment. Any notice by a
Lender of its willingness to extend its Commitment shall be
revocable (upon written notice to the Agent) until 30 days prior
to such first annual anniversary or subsequent annual
anniversary, as applicable. The Agent shall notify the Borrower
no later than such first annual anniversary or subsequent annual
anniversary, as applicable, of each Lender's decision.
(b) The Borrower's extension request shall be approved
if not fewer than the Required Lenders agree to extend their
Commitments. If at least the Required Lenders but fewer than all
the Lenders shall consent to an Extension Election, the
Commitments shall be reduced to an amount equal to the aggregate
Commitments of the Lenders that shall have consented to such
Extension Notice; provided that the Borrower shall have the right
to accept Commitments from third-party financial institutions
acceptable to the Agent exercising reasonable discretion (each, a
'Replacement Extending Lender') in an aggregate amount up to the
pre-termination Commitments of the Lenders who elect not to
extend (each, a 'Non-Approving Lender') (it being understood that
any Lenders who elect to extend their Commitments (each, an
'Extending Lender') shall have the right to increase their
Commitments up to the aggregate amount of the pre-termination
Commitments of the Non-Approving Lenders before the Borrower
shall be permitted to substitute any Replacement Extending
Lender).
(c) Each Non-Approving Lender shall transfer its Loans
and Commitment (or any portion of such Loans and Commitment
designated by the Borrower) and its other rights and obligations
under this Agreement to an Extending Lender and/or Replacement
Extending Lender without recourse, warranty by, or expense to
such Non-Approving Lender or the Agent for a purchase price equal
to the outstanding principal amount of the Loans of such Non-
Approving Lender plus all accrued interest therein and all other
amounts owing to such Non-Approving Lender at a time mutually
acceptable to each of the Borrower, the Non-Approving Lender,
such Extending Lender and/or Replacement Extending Lender, as
applicable, and, in any event within 30 days after such Extending
Lender agrees to increase its Loans and Commitment or such
Replacement Extending Lender, if any, is approved by the Agent.
Upon transfer of all the Non-Approving Lender's Loans and
Commitment, the Non-Approving Lender shall cease to be deemed a
'Lender' for purposes of this Agreement, the Loans and
Commitments of the Extending Lender shall be deemed to have
increased by the amount of the Loans and Commitments acquired, if
any, and the Replacement Extending Lender, if any, shall be
deemed a Lender for all purposes of the Agreement.
(d) Notwithstanding the foregoing, any request so
approved (an 'Extension Election') shall be effective on the
Termination Date then in effect (without giving effect to such
extension), if and only if on such Termination Date no Default or
Event of Default shall have occurred and be continuing or would
occur as a result of such extension.
2.20 Expansion Facility. At any time prior to the
Termination Date, (a) any Lender may, by notice to the Agent
(which shall promptly deliver a copy to each of the Lenders),
request to increase its Commitment or (b) the Borrower may
propose third-party financial institutions acceptable to the
Agent exercising reasonable discretion (each an 'Additional
Lender') that wish to acquire Commitments (all such increased
Commitments under either clause (a) or clause (b), collectively,
the 'Expansion Commitments'), provided, that both at the time of
any such request or proposal and after giving effect to any Loans
provided to the Borrower under such Expansion Commitments
(collectively, the 'Expansion Loans'), no Default shall exist and
the Borrower shall be in pro forma compliance with each financial
covenant. The Expansion Commitments (i) shall be in an aggregate
principal amount not in excess of $80,000,000, (ii) shall rank
pari passu in right of payment with the Loans, (iii) shall mature
on the Termination Date, (iv) shall otherwise be treated
hereunder no more favorably than the Loans, and (v) shall be
acceptable to the Agent. Such notice shall set forth the
requested amount of Expansion Commitment (which amount shall be
in a minimum amount equal to $10,000,000 or a whole multiple of
$5,000,000 in excess thereof and which amount, together with the
amount of all previous Expansion Commitments, shall not exceed
$80,000,000); provided that in no event shall the aggregate
Commitments together with the aggregate Expansion Commitments
exceed $250,000,000. Expansion Commitments shall become
Commitments under this Agreement pursuant to an amendment (an
'Expansion Facility Amendment') executed by each of the Borrower,
each Lender requesting such Expansion Commitment or Additional
Lender, as applicable, and the Agent. The effectiveness of any
Expansion Facility Amendment shall be subject to the satisfaction
on the date thereof and, if different, on the date on which the
Expansion Loans are made, of each of the conditions set forth in
Section 4.2. Upon the effectiveness of such Amendment, any
Additional Lender shall become a Lender for all purposes under
this Agreement.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this
Agreement and to make the Loans, the Borrower hereby represents
and warrants to the Agent and each Lender:
3.1 Financial Condition. (a) The consolidated balance
sheets of the Borrower as of December 31, 1996, December 31, 1997
and December 31, 1998 and the related consolidated statements of
income, retained earnings and cash flows for the fiscal year
ended on such date, reported on by Arthur Andersen LLP, copies of
which have heretofore been furnished to the Lenders, present
fairly the consolidated financial condition of the Borrower and
its Consolidated Subsidiaries as at such date, and the results of
their operations and their retained earnings and cash flows for
each of the fiscal years then ended. All such financial
statements, including the related schedules and notes thereto
relating to the audited financials, have been prepared in
accordance with GAAP applied consistently throughout the periods
involved.
(b0 All balance sheets, all statements of income and
shareholders equity and of cash flows and all other financial
information which shall hereafter be furnished by or on behalf of
or the Borrower to the Agent for the purposes of, or in
connection with, this Agreement or any transaction contemplated
hereby have been or will be prepared in accordance with GAAP
consistently applied throughout the periods involved (except as
disclosed therein) and do or will present fairly (subject to
normal year-end adjustment in the case of financial statements
for any fiscal quarter) the financial condition of the Borrower
and its Consolidated Subsidiaries, as the case may be, as at the
dates thereof and the results of their operations and their
shareholders equity and cash flows for the periods then ended.
3.2 No Change. Since December 31, 1998 there has been
no development or event which has had a Material Adverse Effect.
3.3 Corporate Existence; Compliance with Law. Each of
the Borrower and its Subsidiaries (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction
of its organization, (b) has the corporate power and authority,
and the legal right to own and operate its property, to lease the
property it operates as lessee and to conduct the business in
which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property
or the conduct of its business requires such qualification except
to the extent that the failure to comply therewith could not, in
the aggregate, reasonably be expected to have a Material Adverse
Effect and (d) is in compliance with all Requirements of Law,
except to the extent that the failure to comply therewith could
not reasonably be expected to have a Material Adverse Effect.
3.4 Corporate Power; Authorization; Enforceable
Obligations. The Borrower has the corporate power and authority,
and the legal right, to make, deliver and perform the Loan
Documents to which it is a party and to authorize the execution,
delivery and performance of the Loan Documents, and to borrow
hereunder. The Borrower has taken all necessary corporate action
to authorize the borrowings on the terms and conditions set forth
in this Agreement and in the Notes. Except as set forth in
Schedule 3.4, no consent or authorization of, filing with, notice
to or other act by or in respect of, any Governmental Authority
or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity
or enforceability of the Loan Documents to which the Borrower is
a party other than any of the foregoing that, if not obtained,
could not reasonably be expected to have a Material Adverse
Effect. On the Closing Date, the Agent and each Lender shall
have received complete and current copies of all consents,
authorizations and filings listed on Schedule 3.4. This
Agreement has been, and each other Loan Document will be, duly
executed and delivered on behalf of the Borrower. This Agreement
constitutes, and each other Loan Document when executed and
delivered will constitute, a legal, valid and binding obligation
of the Borrower enforceable against the Borrower, in accordance
with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
3.5 No Legal Bar. The execution, delivery and
performance of the Loan Documents, the borrowings hereunder and
the use of the proceeds thereof will not violate any Requirement
of Law or Contractual Obligation of the Borrower or any
Subsidiary which violation could reasonably be expected to have a
Material Adverse Effect, will not accelerate or result in the
acceleration of any payment obligations of the Borrower or such
Subsidiary and will not result in, or require, the creation or
imposition of any Lien on any of the respective properties or
revenues of the Borrower or any such Subsidiary pursuant to any
such Requirement of Law or Contractual Obligation.
3.6 No Material Litigation. Except as set forth in
Schedule 3.6, no litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to
the knowledge of the Borrower, threatened by or against the
Borrower or any Subsidiary or against any of the respective
properties or revenues of the Borrower or any Subsidiary (a) with
respect to any of the Loan Documents or any of the transactions
contemplated hereby or thereby, or (b) which could reasonably be
expected to have a Material Adverse Effect.
3.7 No Default. No Default or Event of Default has
occurred and is continuing.
3.8 Ownership of Property; Liens. Except as set forth
in Schedule 3.8, each of the Borrower and its Material
Subsidiaries has good record and marketable title in fee simple
to, or a valid leasehold interest in, all its material real
property, and good title to, or a valid leasehold interest in,
all its other material property. None of such property is
subject to any Lien other than Permitted Liens.
3.9 Intellectual Property. Each of the Borrower and
its Subsidiaries owns, or is licensed to use, all patents,
trademarks, trade names, copyrights, technology, know-how,
processes, logos and insignia necessary for the conduct of its
business as currently conducted except for those which the
failure to own or license could not reasonably be expected to
have a Material Adverse Effect (the 'Intellectual Property'). No
claim has been asserted and is pending by any Person challenging
or questioning the use of any such Intellectual Property or the
validity or effectiveness of any such Intellectual Property which
could reasonably be expected to have a Material Adverse Effect,
nor does the Borrower or any Consolidated Subsidiary know of any
valid basis for any such claim. The use of such Intellectual
Property by the Borrower or any Subsidiary does not infringe on
the rights of any Person, except for such claims and
infringements that, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
3.10 No Burdensome Restrictions. No Requirement of Law
or Contractual Obligation of the Borrower or any Subsidiary could
reasonably be expected to have a Material Adverse Effect.
3.11 Taxes. Except as set forth in Schedule 3.11, each
of the Borrower and the Subsidiaries has filed or caused to be
filed all federal, state and other material tax returns which are
required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges
imposed on it or any of its property by any Governmental
Authority (other than any tax, fee or other charge the amount or
validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the
Borrower or such Subsidiary, as the case may be); and no tax Lien
has been filed, and, to the knowledge of the Borrower, no claim
is being asserted, with respect to any such tax, fee or other
charge.
3.12 Margin Stock. (a) The Borrower is not engaged in
the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U), and
no proceeds of any Loan will be used to purchase or carry any
margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock, except in compliance
with applicable law and regulations.
(b) Following application of the proceeds of each
Loan, not more than 25% of the value of the consolidated assets
of the Borrower and its Consolidated Subsidiaries that are
subject to the provisions of Section 6.4 will be comprised of
margin stock.
3.13 ERISA. Neither the Borrower nor any Subsidiary
maintains, contributes to or has material obligation with respect
to, any welfare plan (as defined in Section(3)(1) of ERISA) which
provides benefits to employees after termination of employment
other than as required by Part 6 of Title I of ERISA or similar
state laws regarding continuation of benefits. Each Plan has
complied and is in compliance in all respects with the applicable
provisions of ERISA and the Code except where failure to do so
could not reasonably be expected to have a Material Adverse
Effect. The Borrower and each Subsidiary have not breached any
of the responsibilities, obligations or duties imposed on it by
ERISA, the Code, or regulations promulgated thereunder with
respect to any Plan, which breach could reasonably be expected to
have a Material Adverse Effect. Neither the Borrower nor any
Subsidiary nor any fiduciary of any Plan who is an officer or an
employee of the Borrower or any Subsidiary has engaged in a
nonexempt prohibited transaction described in Section 406 of
ERISA or 4975 of the Code with respect to a Plan which could
reasonably be expected to have a Material Adverse Effect. With
respect to any employee benefit plan (as defined in Section 3(3)
of ERISA) currently or formerly maintained or contributed to by
any Commonly Controlled Entity, no liability exists and no event
has occurred which could subject the Borrower or any Subsidiary
to any liability which could reasonably be expected to have a
Material Adverse Effect. Except as disclosed in Schedule 3.13,
none of the Borrower or any Subsidiary has any liability, direct
or indirect, contingent or otherwise, under Section 4201 or 4204
or 4212(c) of ERISA which could reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any Subsidiary
has any outstanding liability in respect of (i) a failure to make
a required contribution or payment to a Multiemployer Plan or
(ii) a complete or partial withdrawal under Section 4203 or 4205
of ERISA from such a Plan, which in either case could reasonably
be expected to have a Material Adverse Effect.
3.14 Holding Company; Investment Company Act; Other
Regulations. The Borrower is not (a) a 'holding company', a
'subsidiary company' of a 'holding company', or an 'affiliate' of
a 'holding company', as such terms are defined in the Public
Utility Holding Company Act of 1935, as amended, (b) an
'investment company' or a company 'controlled' by an 'investment
company', within the meaning of the Investment Company Act of
1940, as amended, or (c) except as described on Schedule 3.14,
subject to regulation under any Federal or state statute,
regulation, decree or order which limits its ability to incur
Indebtedness or conditions such ability upon any act, approval or
consent of any Governmental Authority.
3.15 Purpose of Loans. The proceeds of the Loans shall
be used for general corporate purposes, including, without
limitation, (a) to repay existing Indebtedness, (b) to finance
working capital requirements, (c) to finance capital
expenditures, (d) to provide liquidity and credit support for
commercial paper and (e) to finance acquisitions.
3.16 Environmental Matters.
(a0 The facilities and properties owned, leased or
operated by the Borrower and its Subsidiaries (the
'Properties') and all operations at the Properties are in
compliance in all material respects with all applicable
Environmental Laws, and there is no contamination at, under
or about the Properties or violation of any Environmental
Law with respect to the Properties or the business operated
by the Borrower and its Subsidiaries (the 'Business') which
could reasonably be expected to have a Material Adverse
Effect.
(b0 Neither the Borrower nor any Subsidiary has
received any notice of violation, alleged violation, non-
compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws
with regard to any of the Properties or the Business, nor do
the Borrower or any Subsidiary have knowledge or reason to
believe that any such notice will be received or is being
threatened, in each case which could reasonably be expected
to have a Material Adverse Effect.
(c0 There has been no release or threat of release of
Materials of Environmental Concern at or from any of the
Properties, or arising from or related to the operations of
the Borrower or any Subsidiary in connection with any of
the Properties or otherwise in connection with the Business,
in violation of or in amounts or in a manner that could
reasonably be expected to have a Material Adverse Effect.
3.17 Insurance. All policies of insurance of any kind
or nature maintained by or issued to the Borrower or any
Subsidiary, including, without limitation, policies of life,
fire, theft, product liability, public liability, property
damage, other casualty, employee fidelity, worker's compensation,
employee health and welfare, title, property and liability
insurance, are in full force and effect in all material respects
and are of a nature and provide such coverage as is sufficient
and as is customarily carried by companies of similar size and
character.
3.18 Accuracy and Completeness of Information. All
information, reports and other papers and data (other than
projections) with respect to the Borrower or any Consolidated
Subsidiary, or, to the knowledge of the Borrower, any Subsidiary
furnished to the Lenders by the Borrower, or on behalf of the
Borrower, and all SEC Reports were, at the time furnished,
complete and correct in all material respects, or have been
subsequently supplemented by other information, reports or other
papers or data, to the extent necessary to give the Lenders a
true and accurate knowledge of the subject matter in all material
respects. All projections with respect to the Borrower or any
Consolidated Subsidiary, or, to the knowledge of the Borrower,
any Subsidiary, furnished by the Borrower, were prepared and
presented in good faith by the Borrower based upon facts and
assumptions that the Borrower believed to be reasonable in light
of current and foreseeable conditions, it being understood that
projections are subject to significant uncertainties and
contingencies, many of which are beyond the control of the
Borrower and that no assurance can be given that the financial
results set forth in such projections will actually be realized.
No document furnished or statement made in writing to the Lenders
by or on behalf of the Borrower in connection with the
negotiation, preparation or execution of this Agreement and no
SEC Report contains any untrue statement of a material fact, or
omits to state any such material fact necessary in order to make
the statements contained therein not misleading, in either case
which has not been corrected, supplemented or remedied by
subsequent documents furnished or statements made in writing to
the Lenders. There is no fact known to the Borrower or any of
its Subsidiaries which has a Material Adverse Effect.
3.19 Leaseholds, Permits, etc. The Borrower possesses
or has the right to use, all leaseholds, easements, franchises
and permits and all authorizations and other rights which are
material to and necessary for the conduct of its business. All
the foregoing are in full force and effect, and each of the
Borrower and the Subsidiaries is in substantial compliance with
the foregoing without any known conflict with the valid rights of
others, except for such noncompliance with the foregoing which
could not reasonably be expected to have a Material Adverse
Effect. No event has occurred which permits, or after notice or
lapse of time or both would permit, the revocation or termination
of any such leasehold, easement, franchise, license or other
right, which termination or revocation, considered as a whole,
could reasonably be expected to have a Material Adverse Effect.
3.20 Year 2000. The Borrower has (a) initiated a
review and assessment of all areas within its business and
operations and the business and operations of its Subsidiaries
(including, in each case, those areas affected by material
service suppliers, key vendors and significant customers) that
could be adversely affected by a Year 2000 Problem, (b) developed
an approach intended to address such Year 2000 Problem on a
timely basis (and in any event prior to December 31, 1999) and
(c) to date, implemented such approach in all material respects
on a timely basis. Based on the foregoing, the Borrower believes
that all computer applications (including those of its material
service suppliers, key vendors and significant customers) that
are material to the business and operations of the Borrower and
its Subsidiaries are reasonably expected on a timely basis to be
able to perform properly date-sensitive functions for all dates
before and after January 1, 2000, except to the extent that a
failure to do so could not reasonably be expected to have a
Material Adverse Effect.
ARTICLE 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loans. The agreement of
each Lender to make the Loan requested to be made by it on the
Closing Date is subject to the satisfaction, immediately prior to
or concurrently with the making of such Loan on the Closing Date,
of the following conditions precedent:
(a0 Loan Documents. The Agent shall have received
(i) this Agreement, executed and delivered by a duly
authorized officer of the Borrower, with a counterpart for
each Lender and (ii) for the account of each Lender, one or
more Notes conforming to the requirements hereof and
executed by a duly authorized officer of the Borrower.
(b0 Corporate Proceedings of the Borrower. The Agent
shall have received with a counterpart for each Lender, a
copy of the resolutions, in form and substance satisfactory
to the Agent, of the Board of Directors of the Borrower
authorizing (i) the execution, delivery and performance of
this Agreement, the Notes and the other Loan Documents to
which it is a party and (ii) the borrowings contemplated
hereunder connection therewith, certified by the Secretary
or an Assistant Secretary of the Borrower as of the Closing
Date, which certificate shall state that the resolutions
thereby certified have not been amended, modified, revoked
or rescinded and shall be in form and substance satisfactory
to the Agent. The Agent also shall have received, with a
counterpart for each Lender, a certificate of the Borrower,
dated the Closing Date, as to the incumbency and signature
of the officers of the Borrower executing any Loan Document,
satisfactory in form and substance to the Agent, executed by
the Chief Executive Officer, Treasurer or any Vice President
and the Assistant Treasurer, Secretary or any Assistant
Secretary of the Borrower.
(c0 Corporate Documents. The Agent shall have
received, with a counterpart for each Lender, true and
complete copies of the charter documents of the Borrower,
certified as of the Closing Date as complete and correct
copies thereof by the Secretary or an Assistant Secretary of
the Borrower.
(d0 Consents, Licenses and Approvals. The Agent shall
have received, with a counterpart for each Lender, a
certificate of a Responsible Officer of the Borrower (i)
attaching copies of all consents, authorizations and filings
referred to in Schedule 3.4, and (ii) stating that such
consents, licenses and filings are in full force and effect,
and each such consent, authorization and filing shall be in
form and substance satisfactory to the Agent.
(e0 Closing Fees and Expenses. The Agent previously
shall have received the fees to be received on the Closing
Date referred to in the Fee Letter and shall have received
reimbursement of all costs and expenses (including the fees
and expenses of counsel to the Agent).
(f0 Legal Opinions. The Agent shall have received,
with a counterpart for each Lender, the executed legal
opinions of counsel to the Borrower, which opinions shall be
satisfactory in form and substance to the Agent.
(g0 Closing Certificate. The Agent shall have
received, with a counterpart for each Lender, a closing
certificate of the Borrower, dated as of the Closing Date
satisfactory in form and substance to the Agent.
(h0 Insurance. The Agent shall have received evidence
satisfactory to it of the existence of the insurance
required hereunder.
(i0 Financial Information. The Agent shall have
received, with a copy for each Lender, a copy of each of the
financial statements referred to in Section 3.1 in form and
substance satisfactory to the Agent.
(j0 Compliance Certificate. The Agent shall have
received, with a counterpart for each Lender, a Compliance
Certificate substantially in the form of Exhibit F executed
by a chief financial officer or treasurer of the Borrower,
dated as of the Closing Date and satisfactory in form and
substance to the Agent.
(k0 No Material Adverse Effect. Since December 31,
1998, no Material Adverse Effect shall have occurred to the
Borrower or any Material Subsidiary.
4.2 Conditions to Each Loan. The agreement of each
Lender to make any Loan other than Loans constituting a
conversion, continuation or rollover of a pre-existing Loan
requested to be made by it on any date (including, without
limitation, its initial Loan) is subject to the satisfaction of
the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower in or
pursuant to the Loan Documents shall be true and correct in
all material respects on and as of such date as if made on
and as of such date (both before and after giving effect to
such Loan).
(b) No Default. No Default or Event of Default shall
have occurred and be continuing on such date or after giving
effect to the Loans requested to be made on such date.
(c) Aggregate Amount. Immediately before and
immediately after giving effect to such Loan,
(i) the aggregate outstanding principal amount of
Loans made by such Lender shall not exceed such
Lender's Commitment; and
(ii) the aggregate outstanding principal amount of
the Loans made by all the Lenders shall not exceed the
Commitment.
(d) Additional Matters. All corporate and other
proceedings, and all documents, instruments and other legal
matters in connection with the transactions contemplated by
this Agreement and the other Loan Documents shall be
reasonably satisfactory in form and substance to the Agent,
and the Agent shall have received such other documents,
instruments and legal opinions in respect of any aspect or
consequence of the transactions contemplated hereby or
thereby as it shall reasonably request.
Each borrowing by the Borrower hereunder shall constitute a
representation and warranty by the Borrower as of the date of
such Loan that the statement in any document delivered by the
Borrower in connection with such borrowing are true and correct
and that the conditions contained in this Section 4.2 have been
satisfied.
ARTICLE 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the
Commitment remains in effect, any Note remains outstanding and
unpaid or any Obligation is owing to any Lender or the Agent
hereunder, the Borrower shall:
5.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 90
days after the end of each fiscal year of the Borrower, a
copy of the consolidated balance sheet of the Borrower and
the Consolidated Subsidiaries as at the end of such year and
the related consolidated and consolidating statements of
income, retained earnings and cash flows for such year,
setting forth in each case in comparative form the figures
as of the end of and for the previous year, reported on
without a 'going concern' or like qualification or
exception, or qualification arising out of the scope of the
audit, by Arthur Andersen LLP or other independent certified
public accountants of nationally recognized standing;
provided that the submission of the Borrower's report on
Form 10-K shall satisfy the foregoing requirements;
(b) as soon as available, but in any event not later
than 45 days after the end of each quarterly period for each
of the fiscal quarters of each fiscal year of the Borrower,
the unaudited consolidated balance sheet of the Borrower and
the Consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income,
retained earnings and cash flows of the Borrower and the
Subsidiaries for such quarter and the portion of the fiscal
year through the end of such quarter and setting forth the
actual figures for the corresponding date or period in the
previous year, certified by the chief financial officer or
treasurer of the Borrower as being fairly stated in all
material respects (subject to normal year-end audit
adjustments); provided that the submission of the Borrower's
report on Form 10-Q shall satisfy the foregoing
requirements;
all such financial statements shall be complete and correct in
all material respects and shall be prepared in reasonable detail
and in accordance with GAAP applied consistently throughout the
periods reflected therein and with prior periods (except as
approved by such accountants or officer, as the case may be, and
disclosed therein).
5.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial
statements referred to in Section 5.1(a), a certificate of
the independent certified public accountants reporting on
such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of
any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial
statements referred to in Section 5.1(a), a compliance
certificate substantially in the form of Exhibit F of the
chief financial officer or treasurer of the Borrower (the
'Compliance Certificate'), in form and substance
satisfactory to the Agent, showing compliance by the
Borrower and the Subsidiaries with the covenants contained
in Section 6.1;
(c) promptly after the sending or filing thereof, and
on, any event within 5 Business Days after the filing
thereof, copies of all reports which the Borrower sends to
any of its stockholders, and copies of all registration
statements, reports on Form 10-K, Form 10-Q or Form 8-K (or,
in each case, any successor form) and other material reports
which the Borrower or any Subsidiary files with the SEC or
any successor or analogous Governmental Authority (other
than public offerings of securities under employee benefit
plans or dividend reinvestment plans);
(d) promptly and in event within five days after
either of Moody's or S&P has raised or lowered its credit
rating of any of the Borrower's long-term unsecured
indebtedness for borrowed money a notice to the Agent as to
such effect;
(e) promptly, such additional financial and other
information as the Agent and the Lenders may from time to
time reasonably request.
5.3 Payment of Obligations. Pay, discharge or
otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all taxes, fees or other charges
imposed on it or on any of its properties by any Governmental
Authority and all its other material obligations of whatever
nature, except, in each case, where the amount or validity
thereof is currently being diligently contested in good faith and
reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrower or any of its Subsidiaries,
as the case may be.
5.4 Maintenance of Existence. Renew and keep in full
force and effect its corporate existence, take all reasonable
action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business
except to the extent such failure to maintain could not, in the
aggregate, reasonably be expected to have a Material Adverse
Effect and comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, be reasonably expected to
have a Material Adverse Effect.
5.5 Maintenance of Property; Insurance. Keep all
property useful and necessary in its business in good working
order and condition (ordinary wear and tear, and casualties,
excepted) maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts
and against at least such risks as are usually insured against in
the same general area by companies engaged in the same or a
similar business, and furnish to each Lender, upon request, full
information as to the insurance carried including certified
copies of policies and certificates of insurance from a
recognized insurance broker reasonably acceptable to the Required
Lenders.
5.6 Inspection of Property; Books and Records;
Discussions. Keep proper books of records and account, in which
full, true and correct entries in conformity with GAAP and all
Requirements of Law shall be made of all dealings and
transactions in relation to its business and activities; and
permit after reasonable notice representatives of the Agent to
visit and inspect any of its properties and examine and make
abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired, and to discuss
the business, operations, properties and financial and other
condition of the Borrower and each Material Subsidiary with
officers and employees of the Borrower and such Material
Subsidiary and with their independent certified public
accountants.
5.7 Notices. Promptly after the Borrower knows and,
in any event, within 5 days after the Borrower knows with respect
to any notice under clause (a) or 10 days with respect to any
other notice under this Section, give notice to the Agent and
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any
Contractual Obligation of the Borrower or any Subsidiary, or
(ii) litigation, investigation or proceeding which may exist
at any time between the Borrower or any such Subsidiary and
any Governmental Authority, which in either case, if not
cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
and
(c) any material labor dispute to which the Borrower
or any Subsidiary may become a party and which involves any
group of employees, any strikes or walkouts relating to any
of its plants or facilities and the expiration or
termination of any labor contract to which the Borrower or
such Subsidiary is a party or by which the Borrower or such
Subsidiary is bound and which dispute could reasonably be
expected to materially disrupt the operations of the
Borrower or such Subsidiary.
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the
Borrower proposes to take with respect thereto. For the purposes
of this Section 5.7 the Borrower shall be deemed to have
knowledge when any officer of the Borrower charged with
responsibility for any matter that is the subject of such notice
requirement knows or should have known that such notice was
required.
5.8 Environmental Laws. (a) Comply and cause its
Subsidiaries to comply in all material respects with all
applicable Environmental Laws and obtain and comply and cause its
Subsidiaries to obtain and comply in all material respects with
and maintain and cause its Subsidiaries to maintain any and all
licenses, approvals, notifications, registrations or permits
required by applicable Environmental Laws except to the extent
that failure to do so could not be reasonably expected to have a
Material Adverse Effect.
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions
required under Environmental Laws and promptly comply in all
material respects with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws except to
the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings
could not be reasonably expected to have a Material Adverse
Effect.
(c) Defend, indemnify and hold harmless the Agent and
the Lenders, and their respective parents, subsidiaries,
affiliates, employees, agents, officers and directors, from and
against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or
nature known or unknown, contingent or otherwise, arising out of,
or in any way relating to the violation of, noncompliance with or
liability under any Environmental Laws applicable to the
operations of the Borrower, any Subsidiary or the Properties, or
any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, reasonable
attorney's and consultant's fees, investigation and laboratory
fees, response costs, court costs and litigation expenses, except
to the extent that any of the foregoing arise out of the gross
negligence or willful misconduct of the party seeking
indemnification therefor. This indemnity shall continue in full
force and effect regardless of the termination of this Agreement.
5.9 ERISA. Establish, maintain and operate and cause
each of its Subsidiaries to establish, maintains and operate all
Plans to comply in all material respects with the applicable
provisions of ERISA, the Code, and all other applicable laws, and
the regulations and interpretations thereunder and the respective
requirements of the governing documents for such Plans except to
the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect.
5.10 Use of Proceeds. Use the proceeds of each Loan
solely for the purposes set forth in Section 3.15.
5.11 Year 2000. Take all actions reasonably necessary
to ensure that the computers and computer based systems of the
Borrower and its Subsidiaries are able to operate and effectively
process data, including dates, on and after January 1, 2000
except to the extent that failure to do so could not reasonably
be expected to materially adversely affect the ability of the
Borrower and its Subsidiaries to continue their respective
operations in the manner presently conducted without material
disruption. The Borrower shall promptly notify the Agent in the
event the Borrower discovers or determines that any computer
application (including those of its material service suppliers,
key vendors and significant customers) that is material to the
business and operations of the Borrower or any Material
Subsidiary will not be able to perform properly date-sensitive
functions for all dates after January 1, 2000, except to the
extent that such inability could not reasonably be expected to
have a Material Adverse Effect.
5.12 Margin Stock. The aggregate value of margin stock
(as defined in Regulation U) at any time owned or held by the
Borrower or any of its Subsidiaries shall not exceed an amount
equal to 25% of the value of all consolidated assets subject at
such time to any 'arrangement' (as such term is used in the
definition of 'indirectly secured' in Section 221.2 of Regulation
U).
ARTICLE 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the
Commitments remain in effect, any Note remains outstanding and
unpaid or any Obligation is owing to any Lender or the Agent
hereunder, the Borrower shall not:
6.1 Financial Covenants.
(a) Minimum Net Worth. Permit Net Worth on the last
day of any fiscal quarter of the Borrower to be less than
$250,000,000; and
(b) Total Capitalization. Permit the ratio of Funded
Debt to Total Capital on the last day of any fiscal quarter
of the Borrower to exceed 58%.
6.2 Limitation on Fundamental Changes. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or
convey, sell, lease, assign, transfer or otherwise dispose of,
all or substantially all its property, business or assets, except
any Person may be merged or consolidated with or into the
Borrower provided that (a) the Borrower shall be the continuing
or surviving corporation and (b) as of the consummation of, and
after giving effect to, such merger or consolidation, (i) the
Tangible Net Worth of the Borrower shall be greater than the
Tangible Net Worth of the Borrower immediately prior to such
merger or consolidation; and (ii) S&P and Moody's, or any
successor agency providing ratings on the long-term unsecured
debt obligations of the Borrower, shall either (x) have affirmed
their respective ratings on such Indebtedness or (y) not have
placed the Borrower on 'credit watch' as a result of or with
respect to such merger or consolidation.
6.3 Limitation on Transactions with Affiliates.
Except as described on Schedule 6.3, enter into any transaction,
including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any
Affiliate unless such transaction is upon fair and reasonable
terms no less favorable to the Borrower than it would obtain in a
comparable arm's length transaction with a Person which is not an
Affiliate.
6.4 Limitation on Liens. Create, incur, assume or
suffer to exist any Lien upon any of its properties, assets or
revenues, whether now owned or hereafter acquired, except for
Permitted Liens. In the event that any assets of the Borrower
that are subject to any 'arrangement' (as such term is used in
the definition of 'indirectly secured' in Section 221.2 of
Regulation U) hereunder constitute 'margin stock' ( as defined in
Regulation U), such arrangement shall not apply to such margin
stock to the extent that the value of such margin stock exceeds
25% of the value of all assets subject to such arrangement.
ARTICLE 7. EVENTS OF DEFAULT
7.1 Events of Default. If any of the following events
shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of
any Note when due in accordance with the terms thereof or
hereof; or the Borrower shall fail to pay any interest on
any Note, or any other amount payable hereunder, within
three days after any such interest or other amount becomes
due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made
by the Borrower herein or in any other Loan Document or
which is contained in any certificate, document or financial
or other statement furnished by it at any time under or in
connection with this Agreement or any such other Loan
Document shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) The Borrower shall default in the observance or
performance of any agreement contained in Article 6 or
Section 5.7; or
(d) The Borrower shall default in the observance or
performance of any other agreement contained in this
Agreement or any other Loan Document, and such default shall
continue unremedied for a period of 30 days; or
(e) The Borrower or any Material Subsidiary shall
(i) default in any payment (regardless of amount) of
principal of or interest on any Indebtedness having an
aggregate principal amount in excess of $25,000,000 (other
than the Notes) beyond the period of grace (not to exceed 30
days), if any, provided in the instrument or agreement under
which such Indebtedness or (ii) default in the observance or
performance of any other agreement or condition relating to
any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of
which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of
notice, if required, such Indebtedness to become due prior
to its stated maturity; provided that (x) solely with
respect to the Indebtedness of any Material Subsidiary, no
Event of Default shall be deemed to have occurred if, prior
to the Agent receiving a direction from the Super Majority
Lenders to take any action permitted under this Section 7.1,
such default shall have been cured or waived; and (y) any
such default by the Borrower or any Material Subsidiary
under Non-Recourse Debt will not constitute an Event of
Default unless such default also constitutes a default under
other recourse Indebtedness of the Borrower or such
Subsidiary in an aggregate outstanding principal amount of
$25,000,000 or more; or
(f) (i) The Borrower or any Material Subsidiary shall
commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization
or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it
or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or
the Borrower or any such Subsidiary shall make a general
assignment for the benefit of its creditors; or (ii) there
shall be commenced against the Borrower or any such
Subsidiary any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the
entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be
commenced against the Borrower or any such Subsidiary any
case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets
which results in the entry of an order for any such relief
which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof;
or (iv) the Borrower or any such Subsidiary shall take any
action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii), or (iii) above; or (v) the Borrower or
any such Subsidiary shall generally not, or shall be unable
to, or shall admit in writing its inability to, pay its
debts as they become due; or
(g) (i) Any Person shall engage in any 'prohibited
transaction' (as defined in Section 406 of ERISA or Section
4975 of the Code) involving any Plan, (ii) any 'accumulated
funding deficiency' (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any
Single Employer Plan or any Lien in favor of the PBGC or a
Plan shall arise on the assets of the Borrower, any
Subsidiary or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings
shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any
Single Employer Plan, which Reportable Event or commencement
of proceedings or appointment of a trustee is, in the
reasonable opinion of the Required Lenders, likely to result
in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower or any
Commonly Controlled Entity shall, or in the reasonable
opinion of the Required Lenders is likely to, incur any
liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer Plan or
(vi) any other event or condition shall occur or exist with
respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other
such events or conditions, if any, could reasonably be
expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered
against the Borrower or any Subsidiary involving in the
aggregate a liability (to the extent not covered by third-
party insurance as to which the insurer has acknowledged
coverage) of $25,000,000 or more and all such judgments or
decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 30 days from the entry thereof;
or
(i) A Change of Control shall occur;
then, and in any such event, (A) if such event is an Event of
Default specified in clause (i) or (ii) of paragraph (f) above
with respect to the Borrower, automatically the Commitment shall
immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this
Agreement and the Notes shall immediately become due and payable,
and (B) if such event is any other Event of Default, either or
both of the following actions may be taken: (i) with the consent
of the Required Lenders, the Agent may, by notice to the
Borrower, declare the Commitment to be terminated forthwith,
whereupon the Commitment shall immediately terminate; and (ii)
with the consent of the Required Lenders, the Agent may, or upon
the request of the Required Lenders the Agent shall, by notice to
the Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the
Notes to be due and payable forthwith, whereupon the same shall
immediately become due and payable. Except as expressly provided
above in this Section, presentment, demand, protest and all other
notices of any kind are hereby expressly waived.
ARTICLE 8. THE AGENT
8.1 Appointment. Each Lender hereby irrevocably
designates and appoints Canadian Imperial Bank of Commerce as
Agent of such Lender under this Agreement and the other Loan
Documents. Each such Lender irrevocably authorizes Canadian
Imperial Bank of Commerce, as the Agent for such Lender, to take
such action on its behalf under the provisions of this Agreement
and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to the Agent by
the terms of this Agreement and the other Loan Documents,
together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere
in this Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or
otherwise exist against the Agent.
8.2 Delegation of Duties. The Agent may execute any
of its duties under this Agreement and the other Loan Documents
by or through agents or attorneys-in-fact and shall be entitled
to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
8.3 Exculpatory Provisions. Neither the Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates shall be (i) liable for any action lawfully taken
or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Document (except
for its own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by the Borrower or
any officer or any of them contained in this Agreement or any
other Loan Document or in any certificate, report, statement or
other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other
Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or
the Notes or any other Loan Document or for any failure of the
Borrower to perform its obligations hereunder or thereunder. The
Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the
properties, books or records of the Borrower or any Subsidiary.
8.4 Reliance by Agent. The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the Agent.
The Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the
Agent. The Agent shall be fully justified in failing or refusing
to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence
of the Required Lenders as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall
in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the Notes and the other Loan
Documents in accordance with a request of the Required Lenders,
and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future
holders of the Notes.
8.5 Notice of Default. The Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or
Event of Default unless the Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing
such Default or Event of Default and stating that such notice is
a 'notice of default'. In the event that the Agent receives such
a notice, the Agent shall give notice thereof to the Lenders.
The Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required
Lenders; provided that unless and until the Agent shall have
received such directions, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders.
8.6 Non-Reliance on Agent and Other Lenders. Each
Lender expressly acknowledges that neither the Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and
that no act by the Agent hereafter taken, including any review of
the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Agent to any Lender. Each
Lender represents to the Agent that it has, independently and
without reliance upon the Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business,
operations, property, financial and other condition and
creditworthiness of the Borrower and made its own decision to
make its Loans hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without
reliance upon the Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it
deems necessary to inform itself as to the business, operations,
property, financial and other condition and creditworthiness of
the Borrower. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Agent
hereunder or furnished to the Agent for the account of, or with a
counterpart or copy for, each Lender, the Agent shall not have
any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or
creditworthiness of the Borrower which may come into the
possession of the Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
8.7 Indemnification. The Lenders agree to indemnify
the Agent in its capacity as such (to the extent not reimbursed
by the Borrower and without limiting the joint and several
obligation of the Borrower to do so), ratably according to their
respective Commitment Percentages in effect on the date on which
indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the
Commitments shall have terminated and the Loans shall have been
paid in full, ratably in accordance with their Commitment
Percentages immediately prior to such date), from and against any
and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Notes) be
imposed on, incurred by or asserted against the Agent in any way
relating to or arising out of this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Agent under or in
connection with any of the foregoing; provided that no Lender
shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting
solely from the Agent's gross negligence or willful misconduct.
The agreements in this Section shall survive the payment of the
Obligations hereunder.
8.8 Agent in Its Individual Capacity. The Agent and
its Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower and
any Subsidiary as though the Agent were not an Agent hereunder
and under the other Loan Documents. With respect to Loans made
or renewed by it and any Note issued to it, the Agent shall have
the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though
it were not the Agent, and the terms 'Lender' and 'Lenders' shall
include the Agent in its individual capacity.
8.9 Successor Agent. The Agent may resign as Agent
upon ten days' notice to the Lenders and the Borrower. If the
Agent shall resign or be terminated, as the case may be, as Agent
under this Agreement and the other Loan Documents, then the
Required Lenders shall, with the consent of the Borrower (which
consent shall not be unreasonably withheld and shall not be
required if an Event of Default shall have occurred that is
continuing) appoint a successor agent, whereupon such successor
agent shall succeed to the rights, powers and duties of the
Agent, and the term 'Agent' shall mean such successor agent
effective upon such appointment and approval, and the former
Agent's rights, powers and duties as Agent shall be terminated,
without any other or further act or deed on the part of such
former Agent or any of the parties to this Agreement or any
holders of the Notes. After any retiring or terminated Agent's
resignation or termination, as the case may be, as Agent, the
provisions of this Section shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent
under this Agreement and the other Loan Documents.
ARTICLE 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement,
any Note or any other Loan Document, nor any terms hereof or
thereof may be amended, supplemented or modified except in
accordance with the provisions of this Section. The Required
Lenders may, or, with the written consent of the Required
Lenders, the Agent may, from time to time, (a) enter into with
the Borrower written amendments, supplements or modifications
hereto for the purpose of adding any provisions to this Agreement
or changing in any manner the rights of the Lenders or of the
Borrower hereunder; (b) enter into with the Borrower written
amendments, supplements or modifications to the Note and the
other Loan Documents for the purpose of adding provisions to the
Notes or such other Loan Documents or changing in any manner the
rights of the Lenders or the Borrower thereunder or (c) waive, on
such terms and conditions as the Required Lenders or the Agent,
as the case may be, may specify in such instrument, any of the
requirements of this Agreement, the Notes or the other Loan
Documents or any Default or Event of Default and its
consequences; provided that no such waiver and no such amendment,
supplement or modification (i) shall reduce the amount or extend
the scheduled date of maturity of any Note or of any installment
thereof, or reduce the stated rate of any interest or fee payable
hereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lender's
Commitments, in each case, without the consent of all the
Lenders, or (ii) shall amend, modify or waive any provision of
this Section, or vary any provision of this Agreement or any
other Loan Document which specifically by its terms requires the
approval or consent of all the Lenders or reduce the percentage
specified in the definition of Required Lenders, or consent to
the assignment or transfer by the Borrower of any of its rights
and obligations under this Agreement, the Notes and the other
Loan Documents, in each case, without the written consent of all
the Lenders, or (iii) shall amend, modify or waive any provision
of Article 8 without the written consent of the then Agent. Any
such waiver and any such amendment, supplement or modification
shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the Lenders, the Agent and all future holders
of the Notes. In the case of any waiver, the Borrower, the
Lenders and the Agent shall be restored to their former position
and rights hereunder and under the outstanding Notes and any
other Loan Documents, and any Default or Event of Default waived
shall be deemed to be cured and not continuing, but no such
waiver shall extend to any subsequent or other Default or Event
of Default or impair any right consequent thereon.
9.2 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in
writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made
when delivered by hand, or, in the case of notice by mail, when
received, or, in the case of telecopy notice, when received,
addressed as follows or to such other address as may be hereafter
notified by the respective parties hereto and any future holders
of the Notes:
The Borrower: Northwestern Corporation
125 S. Dakota Avenue, Suite 1100
Sioux Falls, South Dakota 57104
Attention: David A. Monaghan, Controller and Treasurer
With a Copy to:Northwestern Corporation
125 S. Dakota Avenue, Suite 1100
Sioux Falls, South Dakota 57104
Attention: Eric R. Jacobsen, Vice President
and General Counsel
The Agent: CIBC Inc.
425 Lexington Avenue
New York, NY 10017
Attention: John Burke
provided that any notice, request or demand to or upon the Agent
or the Lenders pursuant to Section 2.3, Section 2.5, Section 2.8,
Section 2.9, Section 2.10 or Section 2.15 shall not be effective
until received.
9.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Agent or
any Lender, any right, remedy, power or privilege hereunder or
under the other Loan Documents shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan
Documents and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement and the Notes and the
making of the Loans hereunder.
9.5 Payment of Expenses and Taxes; Indemnification.
The Borrower agrees (a) to pay or reimburse the Agent for all its
reasonable out-of-pocket costs and expenses incurred in
connection with the development, preparation and execution of,
and any amendment, supplement or modification to, this Agreement,
the Notes and the other Loan Documents and any other documents
prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated
hereby and thereby, including, without limitation, the reasonable
fees and disbursements of counsel to the Agent, (b) to pay or
reimburse the Agent and each Lender for all its costs and
expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the Notes, the
other Loan Documents and any such other documents, including,
without limitation, the fees and disbursements of counsel to the
Agent and each Lender, and (c) to pay, and indemnify and hold
harmless the Agent and each Lender from, any and all recording
and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable
in connection with the execution and delivery of, or consummation
or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or
consent under or in respect of, this Agreement, the Notes, the
other Loan Documents and any such other documents, and (d) to
pay, and indemnify and hold harmless the Agent and each Lender
(including each of their respective parents, subsidiaries,
officers, directors, employees, agent and affiliates) from and
against, any and all other claims, demands, liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, settlements, expenses or disbursements of whatever
kind or nature arising from, in connection with or with respect
to the execution, delivery, enforcement, performance and
administration of this Agreement, the Notes, the other Loan
Documents, or any other documents or the use of the proceeds of
the Loans or any other purpose (all the foregoing in this clause
(d), collectively, the 'indemnified liabilities'); provided that
the Borrower shall not have any obligation hereunder to the
Lenders with respect to indemnified liabilities arising from the
gross negligence or willful misconduct of the Agent or such
Lender. The agreements in this Section 9.5 shall survive
repayment of the Obligations hereunder.
9.6 Successors and Assigns; Participations and
Assignments. (a) This Agreement shall be binding upon and inure
to the benefit of the Borrower, the Lenders, the Agent, all
future holders of the Notes and their respective successors and
assigns, except that the Borrower may not assign or transfer any
of its rights or obligations under this Agreement without the
prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable
law, at any time sell to one or more banks or other entities
('Participants') participating interests in any Loan owing to
such Lender, any Note held by such Lender, any Commitment of such
Lender or any other interest hereunder and under the other Loan
Documents. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's
obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain
the holder of any such Note for all purposes under this Agreement
and the other Loan Documents, and the Borrower and the Agent
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. The Borrower agrees that
if amounts outstanding under this Agreement and the Notes are due
or unpaid, or shall have been declared or shall have become due
and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this
Agreement and any Note to the same extent as if the amount of its
participating interest were owing directly to it as a Lender
under this Agreement or any Note; provided that, in purchasing
such participating interest, such Participant shall be deemed to
have agreed to share with the Lenders the proceeds thereof as
provided in Section 9.7(a) as fully as if it were a Lender
hereunder. The Borrower also agrees that each Participant shall
be entitled to the benefits of Section 2.14, Section 2.15 and
Section 2.16 with respect to its participation in the Commitments
and the Loans outstanding from time to time as if it were a
Lender; provided that, in the case of Section 2.15, such
Participant shall have complied with the requirements of said
Section and provided, further, that no Participant shall be
entitled to receive any greater amount pursuant to any such
Section than the transferor Lender would have been entitled to
receive in respect of the amount of the participation transferred
by such transferor Lender to such Participant had no such
transfer occurred.
(c) Any Lender, in the ordinary course of its
commercial banking business and in accordance with applicable
law, at any time and from time to time may assign to any Lender
or any affiliate thereof with the consent of the Agent, or, with
the consent of the Borrower (so long as no Event of Default shall
have occurred which is continuing) and the Agent (which consent,
in the case of either the Borrower or the Agent, shall not be
unreasonably withheld), to an additional bank or financial
institution (an 'Assignee') all or any part of its rights and
obligations under this Agreement and the Notes pursuant to a
'Commitment Transfer Supplement', substantially in the form of
Exhibit D, executed by such Assignee, such assigning Lender and,
in the case of an Assignee that is not then a Lender or an
affiliate thereof, by the Borrower and the Agent and delivered to
the Agent for its acceptance and recording in the Register;
provided that (i) any such assignment must be in a minimum amount
equal to the lesser of (x) $5,000,000 and (y) the aggregate
Commitment and outstanding Loans of such Lender then in effect,
and (ii) after giving effect to any such assignment, such Lender
shall have either (x) sold all its rights and obligations
hereunder and under the Notes or (y) retained at least $5,000,000
of the aggregate Commitment. Upon such execution, delivery,
acceptance and recording, from and after the effective date
determined pursuant to such Commitment Transfer Supplement, (1)
the Assignee thereunder shall be a party hereto and, to the
extent provided in such Commitment Transfer Supplement, have the
rights and obligations of a Lender hereunder with a Commitment as
set forth therein and (2) the assigning Lender thereunder, to the
extent provided in such Commitment Transfer Supplement, shall be
released from its obligations under this Agreement (and, in the
case of a Commitment Transfer Supplement covering all or the
remaining portion of an assigning Lender's rights and obligations
under this Agreement, such assigning Lender shall cease to be a
party hereto; provided that the provisions of Section 2.14,
Section 2.15, Section 2.16 and Section 9.5 shall continue to
benefit such assigning Lender to the extent required by such
Sections).
(d) The Agent shall maintain, at its address referred
to in Section 9.2, a copy of each Commitment Transfer Supplement
delivered to it and a register (the 'Register') for the
recordation of the names and addresses of any Assignees and the
Commitment of, and principal amount of the Loans owing to, any
Assignees from time to time. The entries in the Register shall
be conclusive, in the absence of manifest error, and the Borrower
and the Agent may treat each Person whose name is recorded in the
Register as the owner of the Loan recorded therein for all
purposes of this Agreement. The Register shall be available for
inspection by the Borrower at any reasonable time and from time
to time upon reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer
Supplement executed by the assigning Lender, an Assignee (and, in
the case of an Assignee that is not then a Lender or an affiliate
thereof, by the Borrower and the Agent) and the Borrower together
with payment by the assigning Lender or by the Assignee to the
Agent of a registration and processing fee of $3,500, the Agent
shall promptly accept such Commitment Transfer Supplement and, on
the effective date determined pursuant thereto, shall record the
information contained therein in the Register and give notice of
such acceptance and recordation to the Borrower. On or prior to
such effective date, the Borrower, at its own expense, shall
execute and deliver to the Agent (in exchange for the Note of the
assigning Lender) a new Note to the order of such Assignee in an
amount equal to the Commitment, assumed by such Assignee pursuant
to such Commitment Transfer Supplement and, if the assigning
Lender has retained a Commitment, a new Note to the order of the
assigning Lender in an amount equal to the Commitment retained by
it hereunder. Such new Notes shall be dated the Closing Date and
shall otherwise be in the form of the Notes replaced thereby.
(f) The Borrower authorizes the Lenders to disclose to
any Participant or Assignee (each, a 'Transferee') and any
prospective Transferee, any and all financial information in the
Lenders' possession concerning the Borrower and its respective
Affiliates which has been delivered to the Agent or the Lenders
by or on behalf of the Borrower pursuant to this Agreement or
which has been delivered to the Agent or the Lenders by or on
behalf of the Borrower in connection with the Lender's credit
evaluation of the Borrower and its respective Affiliates prior to
becoming a party to this Agreement; provided that each such
Transferee and prospective Transferee agrees in writing to be
bound by the provisions of Section 9.8.
(g) Nothing herein shall prohibit any Lender from
pledging or assigning any Note to any Federal Reserve Bank in
accordance with applicable law.
9.7 Adjustments; Setoff. (a) If any Lender (a
'Benefitted Lender') shall at any time receive any payment of all
or part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or
involuntarily, by setoff, pursuant to events or proceedings of
the nature referred to in Section 7.1(f), or otherwise), in a
greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other
Lender's Loans, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender's Loans, or shall
provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to
cause such benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the
Lenders; provided that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefitted
Lender, such purchase shall be rescinded, and the purchase price
and benefits returned, to the extent of such recovery, but
without interest.
(b) In addition to any rights and remedies of the
Lenders provided by law, each Lender shall have the right,
(without prior notice to the Borrower any such notice being
expressly waived by the Borrower to the extent permitted by
applicable law), upon any amount becoming due and payable by the
Borrower hereunder or under the Notes (whether at the stated
maturity, by acceleration or otherwise) to setoff and appropriate
and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency,
and any other credits, indebtedness or claims, in any currency,
in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account
of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Agent after any such setoff and application made
by such Lender; provided that the failure to give such notice
shall not affect the validity of such setoff and application.
9.8 Confidentiality. Each Lender agrees to exercise
all reasonable efforts (consistent with its customary methods for
keeping information confidential) to keep any information
delivered or made available by the Borrower confidential from
anyone other than persons employed or retained by such Lender who
are or are expected to become engaged in evaluating, approving,
structuring or administering the Loans; provided that nothing
herein shall prevent any Lender from disclosing such information
(a) to any Affiliate of such Lender or to any other Lender, (b)
upon the order of any court or administrative agency, (c) upon
the request or demand of any regulatory agency or authority
having jurisdiction over such Lender, (d) that has been publicly
disclosed, (e) in connection with any litigation relating to the
Loans, this Agreement or any transaction contemplated hereby to
which any Lender or the Agent may be a party, (f) to the extent
reasonably required in connection with the exercise of any remedy
hereunder, (g) to such Lender's legal counsel and independent
auditors, and (h) to any actual or proposed participant or
assignee of all or any part of its Loans hereunder, if such other
Person, prior to such disclosure, agrees, in writing, for the
benefit of the Borrower to comply with the provisions of this
Section 9.8.
9.9 Effectiveness. This Agreement shall become
effective on the date when counterparts hereof executed on behalf
of the Borrower, the Agent and each Lender shall have been
received by the Agent and notice thereof shall have been given by
the Agent to the Borrower.
9.10 Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all said
counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with each of the
Borrower and the Agent.
9.11 Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
9.12 Integration. This Agreement and the other Loan
Documents represent the agreement of the Borrower, the Agent and
the Lenders with respect to the subject matter hereof and
thereof, and there are no promises, undertakings, representations
or warranties by the Agent or any Lender relative to subject
matter hereof or thereof not expressly set forth or referred to
herein or in the other Loan Documents.
9.13 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT
AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK.
9.14 Submission To Jurisdiction; Waivers. The Borrower
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the other
Loan Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-
exclusive general jurisdiction of the Courts of the State of New
York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now
or hereafter have to the venue of any such action or proceeding
in any such court or that such action or proceeding was brought
in an inconvenient court and agrees not to plead or claim the
same;
(c) agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form
of mail), postage prepaid, to the Borrower, as the case may be,
at its address set forth in Section 8.2 or at such other address
of which the Agent shall have been notified pursuant thereto;
(d) agrees that nothing contained herein shall affect
the right to effect service of process in any other manner
permitted by law or shall limit the right to sue in any other
jurisdiction; and
(e) waives, to the maximum extent not prohibited by
law, any right it may have to claim or recover in any legal
action or proceeding referred to in this Section any special,
exemplary, punitive or consequential damages.
9.15 Acknowledgments. The Borrower hereby acknowledges
that:
(a) Neither the Agent nor any Lender has any fiduciary
relationship with or duty to or the Borrower arising out of or in
connection with this Agreement or any of the other Loan
Documents, and the relationship between the Agent and the
Lenders, on the one hand, and the Borrower, on the other hand, in
connection herewith or therewith is solely that of creditor and
debtor; and
(b) no joint venture is created hereby or by the other
Loan Documents or otherwise exists by virtue of the transactions
contemplated hereby between the Agent, the Lenders and the
Borrower.
9.16 Waivers of Jury Trial. THE BORROWER, THE AGENT
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR THE NOTES OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
BORROWER:
NORTHWESTERN CORPORATION
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
AGENT:
CANADIAN IMPERIAL BANK OF COMMERCE
By:________________________________
Name:
Title:
LENDERS:
CIBC INC.
By:________________________________
Name:
Title:
BANCO SANTANDER CENTRAL HISPANO, S.A.
By:________________________________
Name:
Title:
BARCLAYS BANK PLC
By:________________________________
Name:
Title:
COBANK, ACB
By:________________________________
Name:
Title:
FIFTH THIRD BANK
By:________________________________
Name:
Title:
UNION PLANTERS BANK
By:________________________________
Name:
Title: