EXHIBIT 10.1
$537,500,000
364-DAY
CREDIT AGREEMENT
dated as of
April 19, 2001
among
DUKE CAPITAL CORPORATION,
as Borrower
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THE BANKS LISTED HEREIN
as Banks
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and
BANK ONE, NA
as Administrative Agent
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BANC ONE CAPITAL MARKETS, INC.
Lead Arranger and Sole Book Runner
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Definitions............................................ 1
SECTION 1.02 Accounting Terms and Determinations.................... 10
SECTION 1.03 Types and Classes of Borrowings........................ 10
ARTICLE 2 THE CREDITS
SECTION 2.01 Commitments............................................ 11
SECTION 2.02 Notice of Borrowings................................... 12
SECTION 2.03 Notice to Banks; Funding of Loans...................... 12
SECTION 2.04 Registry; Notes........................................ 13
SECTION 2.05 Maturity of Loans...................................... 14
SECTION 2.06 Interest Rates......................................... 14
SECTION 2.07 Commitment Fees........................................ 15
SECTION 2.08 Optional Termination or Reduction of Commitments....... 15
SECTION 2.09 Method of Electing Interest Rates...................... 15
SECTION 2.10 Mandatory Termination of Commitments................... 16
SECTION 2.11 Optional Prepayments................................... 16
SECTION 2.12 General Provisions as to Payments...................... 17
SECTION 2.13 Funding Losses......................................... 17
SECTION 2.14 Computation of Interest and Fees....................... 18
SECTION 2.15 Regulation D Compensation.............................. 18
SECTION 2.16 Facility LCs........................................... 18
ARTICLE 3 CONDITIONS
SECTION 3.01 Effectiveness.......................................... 23
SECTION 3.02 Credit Extensions...................................... 24
ARTICLE 4 REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Corporate Existence and Power.......................... 25
SECTION 4.02 Corporate and Governmental Authorization;
No Contravention..................................... 25
SECTION 4.03 Binding Effect......................................... 25
SECTION 4.04 Financial Information.................................. 25
SECTION 4.05 Regulation U........................................... 26
SECTION 4.06 Litigation............................................. 26
SECTION 4.07 Compliance with Laws................................... 26
SECTION 4.08 Taxes.................................................. 26
SECTION 4.09 Public Utility Holding Company Act..................... 27
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ARTICLE 5 COVENANTS
SECTION 5.01 Information........................................... 27
SECTION 5.02 Payment of Taxes...................................... 28
SECTION 5.03 Maintenance of Property; Insurance.................... 29
SECTION 5.04 Maintenance of Existence.............................. 29
SECTION 5.05 Compliance with Laws.................................. 29
SECTION 5.06 Books and Records..................................... 29
SECTION 5.07 Maintenance of Ownership of Principal Subsidiaries.... 30
SECTION 5.08 Negative Pledge....................................... 30
SECTION 5.09 Consolidations, Mergers and Sales of Assets........... 31
SECTION 5.10 Use of Proceeds....................................... 31
SECTION 5.11 Transactions with Affiliates.......................... 31
SECTION 5.12 Indebtedness/Capitalization Ratio..................... 32
SECTION 5.13 Post-closing Consents/Waivers......................... 32
ARTICLE 6 DEFAULTS
SECTION 6.01 Events of Default..................................... 32
SECTION 6.02 Notice of Default..................................... 35
ARTICLE 7 THE ADMINISTRATIVE AGENT
SECTION 7.01 Appointment; Nature of Relationship................... 35
SECTION 7.02 Administrative Agent and Affiliates................... 36
SECTION 7.03 Action by Administrative Agent........................ 36
SECTION 7.04 Consultation with Experts............................. 36
SECTION 7.05 Liability of Administrative Agent..................... 36
SECTION 7.06 Indemnification....................................... 37
SECTION 7.07 Credit Decision....................................... 37
SECTION 7.08 Successor Administrative Agent........................ 37
SECTION 7.09 Administrative Agent's Fee............................ 37
ARTICLE 8 CHANGE IN CIRCUMSTANCES
SECTION 8.01 Basis for Determining Interest Rate Inadequate
or Unfair........................................... 38
SECTION 8.02 Illegality............................................ 38
SECTION 8.03 Increased Cost and Reduced Return..................... 39
SECTION 8.04 Taxes................................................. 40
SECTION 8.05 Alternate Base Rate Loans Substituted for Affected
Euro-Dollar Loans................................... 42
SECTION 8.06 Substitution of Bank.................................. 43
ARTICLE 9 MISCELLANEOUS
SECTION 9.01. Notices............................................... 44
SECTION 9.02 No Waivers............................................ 44
SECTION 9.03 Expenses; Indemnification............................. 44
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SECTION 9.04 Sharing of Set-offs.................................. 45
SECTION 9.05 Amendments and Waivers............................... 45
SECTION 9.06 Successors and Assigns............................... 45
SECTION 9.07 Collateral........................................... 47
SECTION 9.08 Confidentiality...................................... 47
SECTION 9.09 Governing Law; Submission to Jurisdiction............ 47
SECTION 9.10 Counterparts; Integration............................ 47
SECTION 9.11 WAIVER OF JURY TRIAL................................. 47
SECTION 9.12 Payments Set Aside................................... 48
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COMMITMENTS SCHEDULE
PRICING SCHEDULE
NOTICE ADDRESSES SCHEDULE
EXISTING LCS SCHEDULE
EXHIBIT A - Note
EXHIBIT B-1 - Opinion of General Counsel of the Borrower
EXHIBIT B-2 - Opinion of Special Counsel for the Borrower
EXHIBIT C - Assignment and Assumption Agreement
EXHIBIT D - Extension Agreement
EXHIBIT E - Facility LC Application
EXHIBIT F - Facility LC
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364-DAY CREDIT AGREEMENT
364-DAY CREDIT AGREEMENT dated as of April 19, 2001 among DUKE CAPITAL
CORPORATION, the BANKS listed on the signature pages hereof and BANK ONE, NA, a
national banking association having its principal office in Chicago, Illinois,
as Administrative Agent.
The parties hereto agree as follows:
1 ARTICLE
DEFINITIONS AND ACCOUNTING TERMS
2.1. SECTION Definitions. The following terms, as used herein, have the
following meanings:
"Additional Bank" means any financial institution that becomes a Bank
for purposes hereof in connection with the replacement of a Bank pursuant to
Section 8.06.
"Administrative Agent" means Bank One, NA, in its capacity as
administrative agent for the Banks hereunder, and its successors in such
capacity.
"Administrative Questionnaire" means, with respect to each Bank, the
administrative questionnaire in the form submitted to such Bank by the
Administrative Agent and submitted to the Administrative Agent (with a copy to
the Borrower) duly completed by such Bank.
"Affiliate" means (i) any Person that directly, or indirectly through
one or more intermediaries, controls the Borrower (a "Controlling Person") or
(ii) any Person (other than the Borrower or a Subsidiary) which is controlled by
or is under common control with a Controlling Person. As used herein, the term
"control" means possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Banks.
"Aggregate Outstanding Credit Exposure" means, at any time, the
aggregate of the Outstanding Credit Exposure of all the Banks.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of the
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Alternate Base Rate Loan" means a Loan which, except as otherwise
provided in Section 2.06, bears interest at the Alternate Base Rate.
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"Applicable Lending Office" means, with respect to any Bank, (i) in the
case of its Alternate Base Rate Loans, its Domestic Lending Office and (ii) in
the case of its Euro-Dollar Loans, its Euro-Dollar Lending Office.
"Applicable Margin" means, with respect to Euro-Dollar Borrowings at
any time, the percentage rate per annum which is applicable to such time with
respect to Euro-Dollar Borrowings as set forth in the Pricing Schedule.
"Approved Officer" means the president, a vice president or the
treasurer or assistant treasurer of the Borrower or such other representative of
the Borrower as may be designated by any one of the foregoing with the consent
of the Administrative Agent.
"Assignee" has the meaning set forth in Section 9.06(c).
"Available Aggregate Commitment" means, at any time, the Aggregate
Commitment then in effect minus the Aggregate Outstanding Credit Exposure at
such time.
"Bank" means each bank or other financial institution listed on the
signature pages hereof, each Additional Bank, each Assignee which becomes a Bank
pursuant to Section 9.06(c), and their respective successors.
"Bank One" means Bank One, NA, a national banking association having
its principal office in Chicago, Illinois, in its individual capacity, and its
successors.
"Borrower" means Duke Capital Corporation, a Delaware corporation, and
its successors.
"Borrowing" has the meaning set forth in Section 1.03.
"Cash Equivalents" means (i) securities issued or unconditionally
guaranteed by the United States of America or any agency or instrumentality
thereof, backed by the full faith and credit of the United States of America and
maturing within 30 days from the date of acquisition, (ii) commercial paper
issued by any Person organized under the laws of the United States of America,
maturing within 30 days from the date of acquisition and, at the time of
acquisition, having a rating of at least A-1 or the equivalent thereof by S&P or
at least P-1 or the equivalent thereof by Moody's, (iii) time deposits and
certificates of deposit maturing within 30 days from the date of issuance and
issued by a bank or trust company organized under the laws of the United States
of America or any state thereof that has combined capital and surplus of at
least $500,000,000 and that has (or is a subsidiary of a bank holding company
that has) a long-term unsecured debt rating of at least A or the equivalent
thereof by S&P or at least A2 or the equivalent thereof by Moody's, (iv)
repurchase obligations with a term not exceeding seven (7) days with respect to
underlying securities of the types described in clause (i) above entered into
with any bank or trust company meeting the qualifications specified in clause
(iii) above, and (v)
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money market funds at least 95% of the assets of which are continuously invested
in securities of the type described in clause (i) above.
"Class" refers to the determination whether a Loan is a Revolving
Credit Loan or a Term Loan.
"Collateral Shortfall Amount" is defined in Section 6.01.
"Commitment" means (i) with respect to each Bank listed on the signature pages
hereof, the amount set forth opposite the name of such Bank on the Commitment
Schedule, and (ii) with respect to each Additional Bank or Assignee which
becomes a bank pursuant to Sections 2.01(c) and 9.06(c), the amount of the
Commitment thereby assumed by it, in each case as such amount may from time to
time be reduced pursuant to Section 2.08, 2.10 or 9.06(c) or increased pursuant
to Section 8.06 or 9.06(c).
"Commitment Fee Rate" means, on any day, the percentage rate per annum
applicable on such day as set forth in the Pricing Schedule.
"Commitment Schedule" means the Schedule attached hereto identified as
such.
"Commitment Termination Date" means, for each Bank, April 18, 2002, as
such date may be extended from time to time pursuant to Section 2.01(c) or, if
any such day is not a Euro-Dollar Business Day, the next preceding Euro-Dollar
Business Day.
"Consolidated Capitalization" means the sum of (i) Consolidated
Indebtedness, (ii) consolidated common stockholders' equity as would appear on a
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries
prepared in accordance with generally accepted accounting principles, (iii) the
aggregate liquidation preference of preferred stocks (other than preferred
stocks subject to mandatory redemption or repurchase) of the Borrower and its
Consolidated Subsidiaries upon involuntary liquidation, (iv) the aggregate
outstanding amount of all Equity Preferred Securities, and (v) minority
interests as would appear on a consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries prepared in accordance with generally accepted
accounting principles.
"Consolidated Indebtedness" means, at any date, all Indebtedness of
Borrower and its Consolidated Subsidiaries determined on a consolidated basis in
accordance with generally accepted accounting principles.
"Consolidated Subsidiary" means, for any Person, at any date any
Subsidiary or other entity the accounts of which would be consolidated with
those of such Person in its consolidated financial statements if such statements
were prepared as of such date; unless otherwise specified "Consolidated
Subsidiary" means a Consolidated Subsidiary of the Borrower.
3
"Credit Extension" means the issuance of a Facility LC hereunder or the
making of a Borrowing.
"Credit Rating" is defined in the Pricing Schedule.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in Chicago, Illinois are authorized by law
to close.
"Domestic Lending Office" means, as to each Bank, its office located at
its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent.
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 3.01.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges, releases of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes into the environment including, without
limitation, ambient air, surface water, ground water, or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes.
"Equity Preferred Securities" means any securities, however
denominated, (i) issued by the Borrower or any Consolidated Subsidiary of the
Borrower, (ii) that are not subject to mandatory redemption or the underlying
securities, if any, of which are not subject to mandatory redemption, (iii) that
are perpetual or mature no less than 20 years from the date of issuance, (iv)
the indebtedness issued in connection with which, including any guaranty, is
subordinated in right of payment to the unsecured and unsubordinated
indebtedness of the issuer of such indebtedness or guaranty, and (v) the terms
of which permit the deferral of interest or distributions thereon to a date
occurring after the Final Maturity Date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower, are treated as a single employer under
Section 414 of the Internal Revenue Code.
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"Euro-Dollar Base Rate" has the meaning set forth in Section 2.06(b).
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office, branch
or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Borrower and the Administrative Agent.
"Euro-Dollar Loan" means a Loan which, except as otherwise provided in
Section 2.06, bears interest at the applicable Euro-Dollar Rate.
"Euro-Dollar Rate" means a rate of interest determined pursuant to
Section 2.06(b) on the basis of a Euro-Dollar Base Rate.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.15.
"Event of Default" has the meaning set forth in Section 6.01.
"Existing LC" means a letter of credit listed on the Existing LCs
Schedule.
"Existing LCs Schedule" means the Schedule attached hereto identified
as such.
"Facility LC" means an Existing LC or a letter of credit issued
pursuant to Section 2.16(a).
"Facility LC Application" is defined in Section 2.16(c).
"Facility LC Collateral Account" is defined in Section 2.16(k).
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Domestic Business Day, for the immediately preceding Domestic Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day which is a Domestic Business Day, the average of the quotations at
approximately 10:00 a.m. (Chicago time) on such day on such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by the Administrative Agent in its sole discretion.
5
"Final Maturity Date" means the one-year anniversary of the Commitment
Termination Date, as such date may be extended pursuant to Section 2.01(c).
"Group of Loans" means at any time a group of Loans of the same Class
consisting of (i) all Alternate Base Rate Loans of such Class outstanding at
such time or (ii) all Euro-Dollar Loans of such Class having the same Interest
Period at such time, provided that, if a Loan of any particular Bank is
converted to or made as an Alternate Base Rate Loan pursuant to Article 8, such
Loan shall be included in the same Group or Groups of Loans from time to time as
it would have been if it had not been so converted or made.
"Indebtedness" of any Person means at any date, without duplication,
(a) all obligations of such Person for borrowed money, (b) all indebtedness of
such Person for the deferred purchase price of property or services purchased,
(c) all indebtedness created or arising under any conditional sale or other
title retention agreement with respect to property acquired, (d) all
indebtedness under leases which shall have been or should be, in accordance with
generally accepted accounting principles, recorded as capital leases in respect
of which such Person is liable as lessee, (e) the face amount of letter of
credit indebtedness available or to be available to be drawn (other than letter
of credit obligations relating to indebtedness included in Indebtedness pursuant
to another clause of this definition) and, without duplication, the unreimbursed
amount of all drafts drawn thereunder, (f) indebtedness secured by any Lien on
property or assets of such Person, whether or not assumed (but in any event not
exceeding the fair market value of the property or asset), (g) all direct
guarantees and sureties in respect of indebtedness referred to in clauses (a)
through (f) above of another Person, (h) all amounts payable in connection with
mandatory redemptions or repurchases of preferred stock and (i) any obligations
of such Person (in the nature of principal or interest) in respect of
acceptances or similar obligations issued or created for the account of such
Person.
"Interest Period" means, with respect to each Euro-Dollar Loan, the
period commencing on the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in an applicable Notice of Interest Rate
Election and ending one, two, three or six, or, if deposits of a corresponding
maturity are generally available in the London interbank market, nine or twelve,
months thereafter, as the Borrower may elect in such notice; provided that:
(a) any Interest Period which would otherwise end on a
day which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar Business
Day; and
(b) any Interest Period which begins on the last
Euro-Dollar Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Euro-Dollar Business
Day of a calendar month;
6
provided further that: (x) any Interest Period applicable to any Loan which
begins before the Commitment Termination Date and would otherwise end after the
Commitment Termination Date shall end on the Commitment Termination Date; and
(y) any Interest Period applicable to any Loan which would otherwise end after
the Final Maturity Date shall end on the Final Maturity Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Investment Grade Status" exists as to any Person at any date if all
senior long-term unsecured debt securities of such Person outstanding at such
date which had been rated by S&P or Moody's are rated BBB- or higher by S&P or
Baa3 or higher by Moody's, as the case may be.
"LC Fee" is defined in Section 2.16(d).
"LC Issuer" means Bank One (or any subsidiary or affiliate of Bank One
designated by Bank One) in its capacity as issuer of Facility LCs hereunder,
First Union National Bank in its capacity as issuer of Facility LCs hereunder,
any other Bank listed as the issuer of an Existing LC on the Existing LCs
Schedule and any other Bank which accepts a designation by the Borrower and the
Administrative Agent as an LC Issuer hereunder.
"LC Obligations" means, at any time, the sum, without duplication, of
(i) the aggregate undrawn stated amount under all Facility LCs outstanding at
such time plus (ii) the aggregate unpaid amount at such time of all
Reimbursement Obligations.
"LC Payment Date" is defined in Section 2.16(e).
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, the Borrower or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"Loan" means a Revolving Credit Loan or a Term Loan made by a Bank
pursuant to Section 2.01.
"Loan Documents" means this Agreement, the Facility LC Applications and
any Notes issued pursuant to Section 2.04.
"Material Debt" means Indebtedness of the Borrower or any of its
Subsidiaries in an aggregate principal amount exceeding $100,000,000.
"Material Plan" has the meaning set forth in Section 6.01(i).
7
"Material Subsidiary" means at any time any Subsidiary of the Borrower
having, together with its Subsidiaries, consolidated assets in excess of 10% of
the total assets of the Borrower and its Consolidated Subsidiaries, determined
on a consolidated basis as of such time.
"Modify" and "Modification" are defined in Section 2.16(a).
"Moody's" means Moody's Investors Service, Inc.
"Notes" means promissory notes of the Borrower, in the form required by
Section 2.04, evidencing the obligation of the Borrower to repay the Loans, and
"Note" means any one of such promissory notes issued hereunder.
"Notice Addresses Schedule" means the Schedule attached hereto
identified as such.
"Notice of Borrowing" has the meaning set forth in Section 2.02.
"Notice of Interest Rate Election" has the meaning set forth in Section
2.09(a).
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all Reimbursement Obligations, all accrued and unpaid
fees and all expenses, reimbursements, indemnities and other obligations of the
Borrower to the Banks or to any Bank, the Administrative Agent, any LC Issuer or
any indemnified party arising under the Loan Documents.
"Outstanding Credit Exposure" means, as to any Bank at any time, the
sum of (i) the aggregate principal amount of its Loans outstanding at such time,
plus (ii) an amount equal to its Pro Rata Share of the LC Obligations at such
time.
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"Participant" has the meaning set forth in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Internal Revenue Code and is either (i) maintained by a
member of the ERISA Group for employees of a member of the ERISA Group or (ii)
maintained pursuant to a collective bargaining agreement or
8
any other arrangement under which more than one employer makes contributions
and to which a member of the ERISA Group is then making or accruing an
obligation to make contributions or has within the preceding five plan years
made contributions.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"Principal Subsidiary" means each of Texas Eastern Transmission
Corporation, Algonquin Gas Transmission Company, PanEnergy Corp, and their
respective successors.
"Pro Rata Share" means, with respect to a Bank, a portion equal to a
fraction the numerator of which is such Bank's Commitment and the denominator of
which is the Aggregate Commitment.
"Quarterly Payment Date" means the first Domestic Business Day of each
January, April, July and October.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Reimbursement Date" has the meaning set forth in Section 2.16(f).
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Borrower then outstanding under Section 2.16 to reimburse the
LC Issuers for amounts paid by the LC Issuers in respect of any one or more
drawings under Facility LCs.
"Required Banks" means at any time Banks (i) having at least 51% of the
Aggregate Commitment or (ii) if all of the Commitments shall have been
terminated, having at least 51% of the Aggregate Outstanding Credit Exposure.
"Revolving Credit Loan" means a loan made or to be made by a Bank
pursuant to Section 2.01(a); provided that, if any such loan or loans (or
portions thereof) are combined or subdivided pursuant to a Notice of Interest
Rate Election, the term "Revolving Credit Loan" shall refer to the combined
principal amount resulting from such combination or to each of the separate
principal amounts resulting from such subdivision, as the case may be.
"Revolving Credit Period" means the period from and including the
Effective Date to but not including the Commitment Termination Date.
"S&P" means Standard & Poor's Rating Services, a division of The
McGraw-Hill Companies, Inc.
9
"Subsidiary" means, as to any Person, any corporation or other entity
of which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person; unless
otherwise specified, "Subsidiary" means a Subsidiary of the Borrower.
"Substantial Assets" means assets sold or otherwise disposed of in a
single transaction or a series of related transactions representing 25% or more
of the consolidated assets of the Borrower and its Consolidated Subsidiaries,
taken as a whole.
"Term Loan" means a loan made or to be made by a Bank pursuant to
Section 2.01(b); provided that, if any such loan or loans (or portions thereof)
are combined or subdivided pursuant to a Notice of Interest Rate Election, the
term "Term Loan" shall refer to the combined principal amount resulting from
such combination or to each of the separate principal amounts resulting from
such subdivision, as the case may be.
"Three-Year Credit Agreement" means the Three-Year Credit Agreement
dated as of April 19, 2001 among the Borrower, certain lenders and Bank One, NA,
as administrative agent, as such agreement may be amended or modified from time
to time.
"Type" means, with respect to any Loan, its nature as an Alternate Base
Rate Loan or a Euro-Dollar Loan.
"United States" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"Unfunded Vested Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all benefits under
such Plan exceeds (ii) the fair market value of all Plan assets allocable to
such benefits, all determined as of the then most recent valuation date for such
Plan, but only to the extent that such excess represents a potential liability
of a member of the ERISA Group to the PBGC or the Plan under Title IV of ERISA.
2.2. SECTION Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks.
2.3. SECTION Types and Classes of Borrowings. The term "Borrowing" denotes
the aggregation of Loans of the Banks to be made to the Borrower pursuant to
Article 2 on a single date and for a single Interest Period. Borrowings are
classified for purposes of this Agreement
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either by reference to the pricing of Loans comprising such Borrowing (e.g., a
"Euro-Dollar Borrowing" is a Borrowing comprised of Euro-Dollar Loans) or by
reference to the Class of Loans comprising such Borrowing (e.g., a "Term
Borrowing" is a Borrowing comprised of Term Loans).
3 ARTICLE
4 THE CREDITS
4.1. SECTION Commitments
4.2.(a) Revolving Credit Loans; Facility LCs. During the Revolving Credit
Period, each Bank severally agrees, on the terms and conditions set forth in
this Agreement, (i) to make loans to the Borrower and (ii) to participate in
Facility LCs issued upon the request of the Borrower, from time to time,
provided that, after giving effect to the making of each such Revolving Credit
Loan and the issuance of each such Facility LC, such Bank's Outstanding Credit
Exposure shall not exceed its Commitment. Each Borrowing under this subsection
shall be in an aggregate principal amount of $10,000,000 or any larger multiple
of $1,000,000 (except that any such Borrowing may be in the aggregate amount
available in accordance with Section 3.02(b)) and shall be made from the Banks
ratably according to their Pro Rata Shares. Within the foregoing limits, the
Borrower may borrow under this subsection (a), or to the extent permitted by
Section 2.11, prepay Loans and reborrow at any time during the Revolving Credit
Period under this subsection (a). The Commitments to extend credit hereunder
shall expire on the Commitment Termination Date. The LC Issuers will issue
Facility LCs hereunder on the terms and conditions set forth in Section 2.16.
(b) Term Loans. Each Bank severally agrees, on the terms and
conditions set forth in this Agreement, to make a loan to the Borrower on the
Commitment Termination Date in an amount up to but not exceeding the amount of
its Revolving Credit Loans outstanding on the Commitment Termination Date. Each
Borrowing under this subsection (b) shall be made from the Banks ratably
according to their Pro Rata Shares.
(c) Extension of Commitments. On no more than two separate
occasions, the Borrower may, upon notice not less than 45 days but no earlier
than 60 days prior to the then current Commitment Termination Date to the
Administrative Agent (which shall notify each Bank of receipt of such request),
propose to extend the Revolving Credit Period for an additional 364 days
measured from the Commitment Termination Date then in effect. Each Bank shall
endeavor to respond to such request, whether affirmatively or negatively (such
determination in the sole discretion of such Bank), by notice to the Borrower
and the Administrative Agent not more than 45 days nor less than 30 days prior
to the Commitment Termination Date. Subject to the execution by the Borrower,
the Administrative Agent and such Banks of a duly completed Extension Agreement
in substantially the form of Exhibit D, the Commitment Termination Date
applicable to the Commitment of each Bank so affirmatively notifying the
Borrower and the Administrative Agent shall be extended for the period specified
above; provided that the Commitment Termination Date shall not be extended
unless Banks shall have elected so to extend their Commitments that have
Commitments constituting at least the greater of (i) 66 2/3% in
11
aggregate amount of the Commitments in effect at the time any such extension is
requested and (ii) the Aggregate Outstanding Credit Exposure on the Commitment
Termination Date prior to any extension thereof and after giving effect to any
repayment of Loans and/or termination of Facility LCs on such date. Any Bank
which does not give such notice to the Borrower and the Administrative Agent
shall be deemed to have elected not to extend as requested, and on the
Commitment Termination Date determined without giving effect to such requested
extension, the Commitment of each non-extending Bank shall terminate, the
participations of each non-extending Bank in Facility LCs shall terminate, and
the Borrower shall repay all Loans and other Obligations owing to such
non-extending Bank. The Borrower may, in accordance with Section 8.06, designate
another bank or other financial institution (which may be, but need not be, an
extending Bank) to replace a non-extending Bank. The Borrower may revoke its
proposal to extend the then current Commitment Termination Date by giving notice
of such revocation to the Administrative Agent (which shall notify each Bank of
such revocation) at any time prior to the then current Commitment Termination
Date and prior to execution by the Borrower of an Extension Agreement.
4.3. SECTION Notice of Borrowings. The Borrower shall give the
Administrative Agent notice (a "Notice of Borrowing") not later than 10:00 A.M.
(Chicago time) on (x) the date of each Alternate Base Rate Borrowing and (y) the
third Euro-Dollar Business Day before each Euro-Dollar Borrowing, specifying:
(a) the date of such Borrowing, which shall be a Domestic Business Day in
the case of a Domestic Borrowing or a Euro-Dollar Business Day in the case of a
Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Loans comprising such Borrowing are to bear interest
initially at the Alternate Base Rate or a Euro-Dollar Rate,
(d) the Class of Loans comprising such Borrowing, and
(e) in the case of a Euro-Dollar Borrowing, the duration of the initial
Interest Period applicable thereto, subject to the provisions of the definition
of Interest Period.
4.4. SECTION Notice to Banks; Funding of Loans. (a) Upon receipt of a
Notice of Borrowing, the Administrative Agent shall promptly notify each Bank of
the contents thereof and of such Bank's share of such Borrowing and such Notice
of Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 12:00 Noon (Chicago time) on the date of each
Borrowing, each Bank shall (except as provided in subsection (c) of this
Section) make available its share of such Borrowing, in Federal or other funds
immediately available in Chicago, to the Administrative Agent at its address
specified in or pursuant to Section 9.01. Unless the Administrative Agent
determines that any applicable condition specified in Article 3 has not been
satisfied, the
12
Administrative Agent will make the funds so received from the Banks available to
the Borrower at the Administrative Agent's aforesaid address.
(c) Unless the Administrative Agent shall have received notice
from a Bank prior to the date of any Borrowing that such Bank will not make
available to the Administrative Agent such Bank's share of such Borrowing, the
Administrative Agent may assume that such Bank has made such share available to
the Administrative Agent on the date of such Borrowing in accordance with
subsection (b) of this Section 2.03 and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such share available to the Administrative Agent, such Bank and, if such Bank
shall not have made such payment within two Domestic Business Days of demand
therefor, the Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Administrative Agent, at (i) in the case
of the Borrower, a rate per annum equal to the higher of the Federal Funds
Effective Rate and the interest rate applicable thereto pursuant to Section 2.06
and (ii) in the case of such Bank, the Federal Funds Effective Rate. If such
Bank shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Bank's Loan included in such Borrowing
for purposes of this Agreement.
(d) The failure of any Bank to make the Loan to be made by it as
part of any Borrowing shall not relieve any other Bank of its obligation
thereunder to make a Loan on the date of such Borrowing, but no Bank shall be
responsible for the failure of any other Bank to make a Loan to be made by such
other Bank.
4.5. SECTION Registry; Notes. (a) The Administrative Agent shall maintain a
register (the "Register") on which it will record the Commitment of each Bank,
each Loan made by such Bank and each repayment of any Loan made by such Bank.
Any such recordation by the Administrative Agent on the Register shall be
conclusive, absent manifest error. Failure to make any such recordation, or any
error in such recordation, shall not affect the Borrower's obligations
hereunder.
(b) The Borrower hereby agrees that, promptly upon the request of
any Bank at any time, the Borrower shall deliver to such Bank a duly executed
Note, in substantially the form of Exhibit A hereto, payable to the order of
such Bank and representing the obligation of the Borrower to pay the unpaid
principal amount of the Loans made to the Borrower by such Bank, with interest
as provided herein on the unpaid principal amount from time to time outstanding.
(c) Each Bank shall record the date, amount and maturity of each
Loan made by it and the date and amount of each payment of principal made by the
Borrower with respect thereto, and each Bank receiving a Note pursuant to this
Section, if such Bank so elects in connection with any transfer or enforcement
of its Note, may endorse on the schedule forming a part thereof appropriate
notations to evidence the foregoing information with respect to each
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such Loan then outstanding; provided that the failure of such Bank to make any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Notes. Such Bank is hereby irrevocably authorized by the
Borrower so to endorse its Note and to attach to and make a part of its Note a
continuation of any such schedule as and when required.
4.6. SECTION Maturity of Loans. (a) Each Revolving Credit Loan made by any
Bank shall mature, and the principal amount thereof shall be due and payable
together with accrued interest thereon, on the Commitment Termination Date.
(b) The Term Loans of each Bank shall mature, and the principal
amount thereof shall be due and payable, together with accrued interest thereon,
on the Final Maturity Date.
4.7. SECTION Interest Rates. (a) Each Alternate Base Rate Loan shall bear
interest on the outstanding principal amount thereof for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the
Alternate Base Rate for such day. Such interest shall be payable quarterly in
arrears on each Quarterly Payment Date and at maturity. Any overdue principal of
or overdue interest on any Alternate Base Rate Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the sum of 1%
plus the Alternate Base Rate for such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin for such
day plus the Euro-Dollar Base Rate applicable to such Interest Period. Such
interest shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than three months, at intervals of three
months after the first day thereof, and at maturity.
"Euro-Dollar Base Rate" means, with respect to a Euro-Dollar Borrowing
for the relevant Interest Period, the applicable British Bankers' Association
Interest Settlement Rate for deposits in U.S. dollars appearing on Reuters
Screen FRBD as of 11:00 A.M. (London time) two Euro-Dollar Business Days prior
to the first day of such Interest Period, and having a maturity equal to such
Interest Period, provided that, (i) if Reuters Screen FRBD is not available to
the Administrative Agent for any reason, the applicable Euro-Dollar Base Rate
for the relevant Interest Period shall instead be the applicable British
Bankers' Association Interest Settlement Rate for deposits in U.S. dollars as
reported by any other generally recognized financial information service as of
11:00 A.M. (London time) two Euro-Dollar Business Days prior to the first day of
such Interest Period, and having a maturity equal to such Interest Period, and
(ii) if no such British Bankers' Association Interest Settlement Rate is
available to the Administrative Agent, the applicable Euro-Dollar Base Rate for
the relevant Interest Period shall instead be the rate determined by the
Administrative Agent to be the rate at which Bank One or one of its Affiliate
banks offers to place deposits in U.S. dollars with first-class banks in the
London interbank market approximately 11:00 A.M. (London time) two Euro-Dollar
Business Days prior to the first day of such Interest Period, in the approximate
amount of Bank One's relevant Euro-Dollar Loan and having a maturity equal to
such Interest Period.
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(c) Any overdue principal of or overdue interest on any
Euro-Dollar Loan shall bear interest, payable on demand, for each day from and
including the date payment thereof was due to but excluding the date of actual
payment, at a rate per annum equal to the sum of 1% plus the higher of (i) the
Alternate Base Rate for such day and (ii) the sum of the Applicable Margin for
such day plus the Euro-Dollar Base Rate for such day.
(d) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the participating Banks by telecopy, telex or cable
of each rate of interest so determined, and its determination thereof shall be
conclusive in the absence of manifest error unless the Borrower raises an
objection thereto within five Domestic Business Days after receipt of such
notice.
4.8. SECTION Commitment Fees. The Borrower shall pay to the Administrative
Agent for the account of the Banks ratably according to their Pro Rata Shares a
commitment fee at the Commitment Fee Rate (determined daily in accordance with
the Pricing Schedule). Such commitment fee shall accrue from and including the
Effective Date to but excluding the Commitment Termination Date, on the daily
average Available Aggregate Commitment. Accrued commitment fees under this
Section shall be payable quarterly in arrears on each Quarterly Payment Date and
on the Commitment Termination Date.
4.9. SECTION Optional Termination or Reduction of Commitments. The Borrower
may, upon at least three Domestic Business Days' notice to the Administrative
Agent, (i) terminate the Commitments at any time, if no Loans are outstanding at
such time or (ii) ratably reduce from time to time by an aggregate amount of
$10,000,000 or any larger multiple of $1,000,000 the aggregate amount of the
Commitments in excess of the Aggregate Outstanding Credit Exposure.
4.10. SECTION Method of Electing Interest Rates. (a) The Loans included in
each Borrowing shall bear interest initially at the type of rate specified by
the Borrower in the applicable Notice of Borrowing. Thereafter, the Borrower may
from time to time elect to change or continue the type of interest rate borne by
each Group of Loans (subject in each case to the provisions of Article 8 and the
last sentence of this subsection (a)), as follows:
(A) if such Loans are Alternate Base Rate Loans, the Borrower may
elect to convert such Loans to Euro-Dollar Loans as of any Euro-Dollar
Business Day; and
(B) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Alternate Base Rate Loans or elect to continue
such Loans as Euro-Dollar Loans for an additional Interest Period,
subject to Section 2.13 in the case of any such conversion or
continuation effective on any day other than the last day of the then
current Interest Period applicable to such Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Administrative Agent not later than 10:00 A.M. (Chicago
time) on the third Euro-Dollar Business Day before the conversion or
continuation selected in such notice is to be effective. A Notice of Interest
Rate Election may, if it so specifies, apply to only a portion of the aggregate
15
principal amount of the relevant Group of Loans, provided that (i) such portion
is allocated ratably among the Loans comprising such Group and (ii) the portion
to which such notice applies, and the remaining portion to which it does not
apply, are each $10,000,000 or any larger multiple of $1,000,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such
notice applies;
(ii) the date on which the conversion or continuation
selected in such notice is to be effective, which shall comply with the
applicable clause of subsection 2.09(a) above;
(iii) if the Loans comprising such Group are to be
converted, the new Type of Loans and, if the Loans being converted are
to be Euro-Dollar Loans, the duration of the next succeeding Interest
Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar
Loans for an additional Interest Period, the duration of such
additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of the term "Interest Period."
(c) Promptly after receiving a Notice of Interest Rate Election
from the Borrower pursuant to subsection 2.09(a) above, the Administrative Agent
shall notify each Bank of the contents thereof and such notice shall not
thereafter be revocable by the Borrower. If no Notice of Interest Rate Election
is timely received prior to the end of an Interest Period for any Group of
Loans, the Borrower shall be deemed to have elected that such Group of Loans be
converted to Alternate Base Rate Loans as of the last day of such Interest
Period.
(d) An election by the Borrower to change or continue the rate of
interest applicable to any Group of Loans pursuant to this Section shall not
constitute a "Borrowing" subject to the provisions of Section 3.02.
4.11. SECTION Mandatory Termination of Commitments. The Commitment of each
Bank shall terminate on the Commitment Termination Date, and any Revolving
Credit Loans of such Bank then outstanding (together with accrued interest
thereon) shall be due and payable on such date; provided that such Revolving
Credit Loans shall be paid with the proceeds from the Term Loans if Term Loans
are made on the Commitment Termination Date.
4.12. SECTION Optional Prepayments. (a) The Borrower may (i) upon notice to
the Administrative Agent not later than 10:00 A.M. (Chicago time) on any
Domestic Business Day prepay on such Domestic Business Day any Group of
Alternate Base Rate Loans and (ii) upon at least three Euro-Dollar Business
Days' notice to the Administrative Agent not later than 10:00
16
A.M. (Chicago time) prepay any Group of Euro-Dollar Loans, in each case in whole
at any time, or from time to time in part in amounts aggregating $5,000,000 or
any larger multiple of $1,000,000, by paying the principal amount to be prepaid
together with accrued interest thereon to the date of prepayment and together
with any additional amounts payable pursuant to Section 2.13. Each such optional
prepayment shall be applied to prepay ratably the Loans of the several Banks
included in such Group or Borrowing.
(b) Upon receipt of a notice of prepayment pursuant to this
Section, the Administrative Agent shall promptly notify each Bank of the
contents thereof and of such Bank's share of such prepayment and such notice
shall not thereafter be revocable by the Borrower.
4.13. SECTION General Provisions as to Payments. (a) The Borrower shall make
each payment of principal of, and interest on, the Loans and of fees hereunder,
not later than 12:00 Noon (Chicago time) on the date when due, in Federal or
other funds immediately available in Chicago, to the Administrative Agent at its
address referred to in Section 9.01. The Administrative Agent will promptly
distribute to each Bank its ratable share of each such payment received by the
Administrative Agent for the account of the Banks. Whenever any payment of
principal of, or interest on, the Alternate Base Rate Loans, or of fees shall be
due on a day which is not a Domestic Business Day, the date for payment thereof
shall be extended to the next succeeding Domestic Business Day. Whenever any
payment of principal of, or interest on, the Euro-Dollar Loans shall be due on a
day which is not a Euro-Dollar Business Day, the date for payment thereof shall
be extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case the date
for payment thereof shall be the next preceding Euro-Dollar Business Day. If the
date for any payment of principal is extended by operation of law or otherwise,
interest thereon shall be payable for such extended time.
(b) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Banks
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent that
the Borrower shall not have so made such payment, each Bank shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Effective Rate.
4.14. SECTION Funding Losses. If the Borrower makes any payment of principal
with respect to any Euro-Dollar Loan or any Euro-Dollar Loan is converted to a
Alternate Base Rate Loan or continued as a Euro-Dollar Loan for a new Interest
Period (pursuant to Article 2, 6 or 8 or otherwise) on any day other than the
last day of an Interest Period applicable thereto, or if the Borrower fails to
borrow, prepay, convert or continue any Euro-Dollar Loans after notice has been
given to any Bank in accordance with Section 2.03(a), 2.09(c) or 2.11(b), the
Borrower shall reimburse each Bank within 15 days after demand for any resulting
loss or expense
17
incurred by it (or by an existing or prospective Participant in the related
Loan), including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after any such payment or conversion or failure to borrow,
prepay, convert or continue, provided that such Bank shall have delivered to the
Borrower a certificate setting forth in reasonable detail the calculation of the
amount of such loss or expense, which certificate shall be conclusive in the
absence of manifest error.
4.15. SECTION Computation of Interest and Fees. Interest based on the Prime
Rate hereunder shall be computed on the basis of a year of 365 days (or 366 days
in a leap year) and paid for the actual number of days elapsed (including the
first day but excluding the last day). All other interest and fees (including
the LC Fees and fronting fees) shall be computed on the basis of a year of 360
days and paid for the actual number of days elapsed (including the first day but
excluding the last day).
4.16. SECTION Regulation D Compensation. In the event that a Bank is
required to maintain reserves of the type contemplated by the definition of
"Euro-Dollar Reserve Percentage", such Bank may require the Borrower to pay,
contemporaneously with each payment of interest on the Euro-Dollar Loans,
additional interest on the related Euro-Dollar Loan of such Bank at a rate per
annum determined by such Bank up to but not exceeding the excess of (i) (A) the
applicable Euro-Dollar Base Rate divided by (B) one minus the Euro-Dollar
Reserve Percentage over (ii) the applicable Euro-Dollar Base Rate. Any Bank
wishing to require payment of such additional interest (x) shall so notify the
Borrower and the Administrative Agent, in which case such additional interest on
the Euro-Dollar Loans of such Bank shall be payable to such Bank at the place
indicated in such notice with respect to each Interest Period commencing at
least three Euro-Dollar Business Days after the giving of such notice and (y)
shall notify the Borrower at least three Euro-Dollar Business Days prior to each
date on which interest is payable on the Euro-Dollar Loans of the amount then
due it under this Section. Each such notification shall be accompanied by such
information as the Borrower may reasonably request.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in Chicago with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents).
4.17. SECTION Facility LCs.
(a) Issuance; Existing LCs. Each LC Issuer hereby agrees, on the
terms and conditions set forth in this Agreement, to issue standby and trade
letters of credit and to renew, extend, increase, decrease or otherwise modify
each Facility LC ("Modify," and each such action a "Modification"), from time to
time during the Revolving Credit Period upon the request of the Borrower;
provided that immediately after each such Facility LC is issued or Modified, the
Aggregate Outstanding Credit Exposure shall not exceed the Aggregate Commitment.
No
18
Facility LC shall have an expiry date later than the Final Maturity Date. The
stated account party under any Facility LC may be the Borrower, a Subsidiary of
the Borrower or an Affiliate of the Borrower. By their execution of this
Agreement, the Borrower and each Bank listed as an issuer of an Existing LC on
the Existing LCs Schedule hereby agree that effective as of the Effective Date
(i) such Existing LC shall be a Facility LC under this Agreement and subject to
the terms hereof, (ii) such Bank shall be an LC Issuer hereunder with respect to
such Existing LC, and (iii) the prior reimbursement agreement or letter of
credit application of the Borrower and such Bank relating to such Existing LC is
replaced by this Agreement.
(b) Participations. Upon the occurrence of the Effective Date,
with respect to each Existing LC, and upon the issuance or Modification by an LC
Issuer of a Facility LC in accordance with this Section 2.16, such LC Issuer
shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably sold to each Bank, and each Bank shall be
deemed, without further action by any party hereto, to have unconditionally and
irrevocably purchased from such LC Issuer, a participation in such Facility LC
(and each Modification thereof) and the related LC Obligations in proportion to
its Pro Rata Share.
(c) Notice. Subject to Section 2.16(a), the Borrower shall give
the applicable LC Issuer and the Administrative Agent notice of the proposed
issuance or Modification of a Facility LC, substantially in the form of Exhibit
E (a "Facility LC Application") specifying the beneficiary, the proposed date of
issuance (or Modification) and the expiry date of such Facility LC, and
describing the proposed terms of such Facility LC, such duly completed Facility
LC Application to be received prior to 10:00 A.M. (Chicago time) on the Business
Day that is at least two Domestic Business Days prior to the proposed date of
issuance or Modification of each Facility LC or in the case of a Facility LC
substantially in the form of Exhibit F, at least one Domestic Business Day prior
to the proposed date of issuance or Modification. Upon receipt of such Facility
LC Application, such LC Issuer shall promptly notify the Administrative Agent,
and the Administrative Agent shall promptly notify each Bank, of the contents
thereof and of the amount of such Bank's participation in such proposed Facility
LC. The issuance or Modification by any LC Issuer of any Facility LC shall, in
addition to the conditions precedent set forth in Article 3 (the satisfaction of
which such LC Issuer shall have no duty to ascertain), be subject to the
condition precedent that such Facility LC shall be satisfactory to such LC
Issuer. In the event of any conflict between the terms of this Agreement and the
terms of any Facility LC Application, the terms of this Agreement shall control.
Subject to the foregoing conditions, the applicable LC Issuer will endeavor to
issue or Modify such Facility LC as soon as practicable after receiving such
Facility LC Application but in any event within two Domestic Business Days after
receiving such Facility LC Application or, in the case of a Facility LC
substantially in the form of Exhibit F, within one Domestic Business Day after
receiving such Facility LC Application.
(d) LC Fees. The Borrower shall pay to the Administrative Agent,
for the account of the Banks ratably in accordance with their respective Pro
Rata Shares, a letter of credit fee at a per annum rate equal to the sum of (i)
the Applicable Margin for Euro-Dollar Loans in effect
19
from time to time plus (ii) 0.125% during any period following the Commitment
Termination Date plus (iii) if an Event of Default exists, 1%, on the average
daily undrawn stated amount under each Facility LC, such fee to be payable in
arrears on each Quarterly Payment Date and the Final Maturity Date (each such
fee described in this sentence an "LC Fee"). The Borrower shall also pay to each
LC Issuer for its own account (x) a fronting fee at a per annum rate equal to
0.10% on the average daily undrawn stated amount under each Facility LC issued
by such LC Issuer, such fee to be payable in arrears on each Quarterly Payment
Date and the Final Maturity Date and (y) documentary and processing charges in
connection with the issuance or Modification or transfer of and draws under
Facility LCs issued by such LC Issuer in accordance with such LC Issuer's
standard schedule for such charges as in effect from time to time (or such other
amounts as such LC Issuer and the Borrower may agree).
(e) Administration; Reimbursement by Banks. Upon receipt from the
beneficiary of any Facility LC of any demand for payment under such Facility LC,
the applicable LC Issuer shall notify the Administrative Agent and the Borrower
and the Administrative Agent shall promptly notify each other Bank as to the
amount to be paid by such LC Issuer as a result of such demand and the proposed
payment date (the "LC Payment Date"). The responsibility of such LC Issuer to
the Borrower and each Bank shall be only to determine that the documents
(including each demand for payment) delivered under each Facility LC in
connection with such presentment shall be in conformity in all material respects
with such Facility LC. Each LC Issuer shall endeavor to exercise the same care
in the issuance and administration of its Facility LCs as it does with respect
to letters of credit in which no participations are granted, it being understood
that in the absence of any gross negligence or willful misconduct by such LC
Issuer, each Bank shall be unconditionally and irrevocably liable without regard
to the occurrence of any Default or any condition precedent whatsoever, to
reimburse such LC Issuer on demand for (i) such Bank's Pro Rata Share of the
amount of each payment made by such LC Issuer under each Facility LC to the
extent such amount is not reimbursed by the Borrower pursuant to Section 2.16(f)
below, plus (ii) interest on the foregoing amount to be reimbursed by such Bank,
for each day from the date of such LC Issuer's demand for such reimbursement
(or, if such demand is made after 10:00 A.M. (Chicago time) on such date, from
the next succeeding Domestic Business Day) to the date on which such Bank pays
the amount to be reimbursed by it, at a rate of interest per annum equal to the
Federal Funds Effective Rate for the first three days and, thereafter, at a rate
of interest equal to the rate applicable to Alternate Base Rate Borrowings.
(f) Reimbursement by Borrower. The Borrower shall be irrevocably
and unconditionally obligated to reimburse the applicable LC Issuer for any
amounts to be paid by such LC Issuer upon any drawing under any Facility LC,
without presentment, demand, protest or other formalities of any kind; provided
that neither the Borrower nor any Bank shall hereby be precluded from asserting
any claim for direct (but not consequential) damages suffered by the Borrower or
such Bank to the extent, but only to the extent, caused by (i) the willful
misconduct or gross negligence of such LC Issuer in determining whether a
request presented under any Facility LC issued by it complied with the terms of
such Facility LC or (ii) such LC Issuer's
20
failure to pay under any Facility LC issued by it after the presentation to it
of a request strictly complying with the terms and conditions of such Facility
LC. The Borrower shall make such reimbursement (1) on or before 2:00 P.M.
(Chicago time) on the applicable LC Payment Date if the Borrower receives notice
of the related demand for payment no later than 10:00 A.M. (Chicago time) on
such LC Payment Date or (2) if the Borrower receives notice of the related
demand for payment later than 10:00 A.M. (Chicago time) on such LC Payment Date,
on or before 2:00 P.M. (Chicago time) on the next succeeding Domestic Business
Day (such date by which reimbursement must be made (the LC Payment Date under
clause (1) or the next succeeding Domestic Business Day under clause (2)) being
the "Reimbursement Date"). All such amounts paid by such LC Issuer and remaining
unpaid by the Borrower shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to (x) the rate applicable to Alternate
Base Rate Borrowings for such day if such day falls on or before the applicable
Reimbursement Date and (y) the sum of 1% plus the rate applicable to Alternate
Base Rate Borrowings for such day if such day falls after such Reimbursement
Date. Such LC Issuer will pay to each Bank ratably in accordance with its Pro
Rata Share all amounts received by it from the Borrower for application in
payment, in whole or in part, of the Reimbursement Obligation in respect of any
Facility LC issued by such LC Issuer, but only to the extent such Bank has made
payment to such LC Issuer in respect of such Facility LC pursuant to Section
2.16(e). Subject to the terms and conditions of this Agreement (including
without limitation the submission of a Notice of Borrowing in compliance with
Section 2.02 and the satisfaction of the applicable conditions precedent set
forth in Article 3), the Borrower may request a Borrowing hereunder for the
purpose of satisfying any Reimbursement Obligation.
(g) Obligations Absolute. The Borrower's obligations under this
Section 2.16 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against any LC Issuer, any Bank or any beneficiary
of a Facility LC. The Borrower further agrees with the LC Issuers and the Banks
that the LC Issuers and the Banks shall not be responsible for, and the
Borrower's Reimbursement Obligation in respect of any Facility LC shall not be
affected by, among other things, the validity or genuineness of documents or of
any endorsements thereon, even if such documents should in fact prove to be in
any or all respects invalid, fraudulent or forged, or any dispute between or
among the Borrower, any of its Affiliates, the beneficiary of any Facility LC or
any financing institution or other party to whom any Facility LC may be
transferred or any claims or defenses whatsoever of the Borrower or of any of
its Affiliates against the beneficiary of any Facility LC or any such
transferee. No LC Issuer shall be liable for any error, omission, interruption
or delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Facility LC. The Borrower agrees that any
action taken or omitted by any LC Issuer or any Bank under or in connection with
each Facility LC and the related drafts and documents, if done without gross
negligence or willful misconduct, shall be binding upon the Borrower and shall
not put any LC Issuer or any Bank under any liability to the Borrower. Nothing
in this Section 2.16(g) is intended to limit the right of the Borrower to make a
claim against any LC Issuer for damages as contemplated by the proviso to the
first sentence of Section 2.16(f).
21
(h) Actions of LC Issuer. Each LC Issuer shall be entitled to
rely, and shall be fully protected in relying, upon any Facility LC, draft,
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document 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, independent accountants and other experts selected by such LC Issuer.
Each LC Issuer shall be fully justified in failing or refusing to take any
action under this Agreement unless it shall first have received such advice or
concurrence of the Required Banks as it reasonably deems appropriate or it shall
first be indemnified to its reasonable satisfaction by the Banks against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. Notwithstanding any other provision of this
Section 2.16, each LC Issuer shall in all cases be fully protected in acting, or
in refraining from acting, under this Agreement in accordance with a request of
the Required Banks, and such request and any action taken or failure to act
pursuant thereto shall be binding upon the Banks and any future holders of a
participation in any Facility LC.
(i) Indemnification. The Borrower hereby agrees to indemnify and
hold harmless each Bank, each LC Issuer and the Administrative Agent, and their
respective directors, officers, agents and employees from and against any and
all claims and damages, losses, liabilities, costs or expenses which such Bank,
such LC Issuer or the Administrative Agent may incur (or which may be claimed
against such Bank, such LC Issuer or the Administrative Agent by any Person
whatsoever), including reasonable fees and disbursements of counsel, by reason
of or in connection with the issuance, execution and delivery or transfer of or
payment or failure to pay under any Facility LC or any actual or proposed use of
any Facility LC, including, without limitation, any claims, damages, losses,
liabilities, costs or expenses which any LC Issuer may incur by reason of or in
connection with (i) the failure of any other Bank to fulfill or comply with its
obligations to such LC Issuer hereunder (but nothing herein contained shall
affect any rights the Borrower may have against any defaulting Bank) or (ii) by
reason of or on account of any LC Issuer issuing any Facility LC which specifies
that the term "Beneficiary" included therein includes any successor by operation
of law of the named Beneficiary, but which Facility LC does not require that any
drawing by any such successor Beneficiary be accompanied by a copy of a legal
document, satisfactory to such LC Issuer, evidencing the appointment of such
successor Beneficiary; provided that the Borrower shall not be required to
indemnify any Bank, any LC Issuer or the Administrative Agent for any claims,
damages, losses, liabilities, costs or expenses to the extent, but only to the
extent, caused by (x) the willful misconduct or gross negligence of such LC
Issuer in determining whether a request presented under any Facility LC complied
with the terms of such Facility LC or (y) any LC Issuer's failure to pay under
any Facility LC after the presentation to it of a request strictly complying
with the terms and conditions of such Facility LC. Nothing in this Section
2.16(i) is intended to limit the obligations of the Borrower under any other
provision of this Agreement.
22
(j) Banks' Indemnification. Each Bank shall, ratably in accordance
with its Pro Rata Share, indemnify each LC Issuer, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct or such LC Issuer's failure to pay under any Facility LC of such LC
Issuer after the presentation to it of a request strictly complying with the
terms and conditions of such Facility LC) that such indemnitees may suffer or
incur in connection with this Section 2.16 or any action taken or omitted by
such indemnitees hereunder.
(k) Facility LC Collateral Account. The Borrower agrees that it
will, upon the occurrence (i) of an Event of Default and (ii) (A) at the request
of the Administrative Agent with the consent of the Banks having Pro Rata Shares
of more than 66 2/3% pursuant to Section 6.01 or (B) at the request of the Banks
having Pro Rata Shares of more than 66 2/3% pursuant to Section 6.01 and until
the final expiration date of any Facility LC and thereafter as long as any
amount is payable to the LC Issuers or the Banks in respect of any Facility LC,
maintain a special collateral account pursuant to arrangements satisfactory to
the Administrative Agent (the "Facility LC Collateral Account") at the
Administrative Agent's office at the address specified pursuant to Section 9.01,
in the name of the Borrower but under the sole dominion and control of the
Administrative Agent, for the benefit of the Banks and in which such Borrower
shall have no interest other than as set forth in Section 6.01. The Borrower
hereby pledges, assigns and grants to the Administrative Agent, on behalf of and
for the ratable benefit of the Banks and the LC Issuers, a security interest in
all of the Borrower's right, title and interest in and to all funds which may
from time to time be on deposit in the Facility LC Collateral Account and all
investments thereof, interest and returns thereon and proceeds thereof to secure
the prompt and complete payment and performance of the Obligations. The
Administrative Agent will invest any funds on deposit from time to time in the
Facility LC Collateral Account in Cash Equivalents. Interest and returns
realized by such investments shall be credited to the Facility LC Collateral
Account and applied as required by Section 6.01. Nothing in this Section 2.16(k)
shall either obligate the Administrative Agent to require the Borrower to
deposit any funds in the Facility LC Collateral Account or limit the right of
the Administrative Agent to release any funds held in the Facility LC Collateral
Account in each case other than as required by Section 6.01.
(l) Rights as a Bank. In its capacity as a Bank, each LC Issuer
shall have the same rights and obligations as any other Bank.
5 ARTICLE
6 CONDITIONS
6.1. SECTION Effectiveness. This Agreement shall become effective on the
date that each of the following conditions shall have been satisfied (or waived
in accordance with Section 9.05):
23
(a) receipt by the Administrative Agent of counterparts hereof
signed by each of the parties hereto (or, in the case of any party as to which
an executed counterpart shall not have been received, receipt by the
Administrative Agent in form satisfactory to it of telegraphic, telecopy, telex
or other written confirmation from such party of execution of a counterpart
hereof by such party);
(b) receipt by the Administrative Agent of an opinion of the
General Counsel to the Borrower substantially in the form of Exhibit B-1 hereto
and covering such additional matters relating to the transactions contemplated
hereby as the Required Banks may reasonably request;
(c) receipt by the Administrative Agent of an opinion of Robinson,
Bradshaw & Hinson, P.A., special counsel for the Borrower, substantially in the
form of Exhibit B-2 hereto and covering such additional matters relating to the
transactions contemplated hereby as the Required Banks may reasonably request.;
(d) receipt by the Administrative Agent of a certificate signed by
a Vice President, the Treasurer or the Controller of the Borrower, dated the
Effective Date, to the effect set forth in clauses (c) and (d) of Section 3.02;
(e) receipt by the Administrative Agent of all documents it may
have reasonably requested prior to the date hereof relating to the existence of
the Borrower, the corporate authority for and the validity of this Agreement and
the Notes, and any other matters relevant hereto, all in form and substance
satisfactory to the Administrative Agent; and
provided that this Agreement shall not become effective or be binding on any
party hereto unless all of the foregoing conditions are satisfied not later than
April 30, 2001. The Administrative Agent shall promptly notify the Borrower and
the Banks of the Effective Date, and such notice shall be conclusive and binding
on all parties hereto.
6.2. SECTION Credit Extensions. The obligation of any Bank to make a Credit
Extension on the occasion of any Borrowing or issuance of a Facility LC is
subject to the satisfaction of the following conditions:
(a) receipt by the Administrative Agent of a Notice of Borrowing
or receipt by the applicable LC Issuer and the Administrative Agent of a
Facility LC Application as required by Section 2.02 or 2.16, as the case may be;
(b) the fact that, immediately after such Credit Extension the
Aggregate Outstanding Credit Exposure will not exceed the Aggregate Commitment;
(c) the fact that, immediately after such Credit Extension, no
Default shall have occurred and be continuing; and
24
(d) the fact that the representations and warranties of the
Borrower contained in this Agreement (except the representations and warranties
set forth in Sections 4.04(b) and 4.06) shall be true on and as of the date of
such Credit Extension.
Each Credit Extension hereunder shall be deemed to be a representation
and warranty by the Borrower on the date of such Credit Extension as to the
facts specified in clauses (b), (c) and (d) of this Section.
7 ARTICLE
8 REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
8.1. SECTION Corporate Existence and Power. The Borrower is a corporation
duly incorporated, validly existing and in good standing under the laws of
Delaware, and has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted and is duly qualified to do business as a foreign corporation in each
jurisdiction where such qualification is required, except where the failure so
to qualify would not have a material adverse effect on the business, financial
position or results of operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole.
8.2. SECTION Corporate and Governmental Authorization; No Contravention.
The execution, delivery and performance by the Borrower of this Agreement and
the Notes are within the Borrower's corporate powers, have been duly authorized
by all necessary corporate action, require no action by or in respect of, or
filing with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the articles of incorporation or by-laws of the Borrower or of any agreement
(subject to compliance with Section 5.13), judgment, injunction, order, decree
or other instrument binding upon the Borrower or result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Material
Subsidiaries.
8.3. SECTION Binding Effect. This Agreement constitutes a valid and binding
agreement of the Borrower and each Note, if and when executed and delivered in
accordance with this Agreement, will constitute a valid and binding obligation
of the Borrower, in each case enforceable in accordance with its terms, except
as the same may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and by general principles of equity.
8.4. SECTION Financial Information. (a) The consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of December 31, 2000 and the
related consolidated statements of income, cash flows, capitalization and
retained earnings for the fiscal year then ended, reported on by Deloitte &
Touche, copies of which have been delivered to each of the Banks, fairly
present, in conformity with generally accepted accounting principles, the
consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their consolidated results of operations and
cash flows for such fiscal year.
25
(b) Since December 31, 2000, there has been no material adverse
change in the business, financial position or results of operations of the
Borrower and its Consolidated Subsidiaries, considered as a whole.
8.5. SECTION Regulation U. The Borrower and its Material Subsidiaries are
not engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System) and no proceeds of any Credit Extension
by the Borrower 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. Not
more than 25% of the value of the assets of the Borrower and its Material
Subsidiaries is represented by margin stock.
8.6. SECTION Litigation. Except as disclosed in the reports referred to in
Section 4.04, there is no action, suit or proceeding pending against, or to the
knowledge of the Borrower threatened against or affecting, the Borrower or any
of its Subsidiaries before any court or arbitrator or any governmental body,
agency or official which would be likely to be decided adversely to Borrower or
such Subsidiary and, as a result, have a material adverse effect upon the
business, consolidated financial position or results of operations of the
Borrower and its Consolidated Subsidiaries, considered as a whole, or which in
any manner draws into question the validity of this Agreement or any Note.
8.7. SECTION Compliance with Laws. The Borrower and each Material
Subsidiary is in compliance in all material respects with all applicable laws,
ordinances, rules, regulations and requirements of governmental authorities
(including, without limitation, ERISA and Environmental Laws) except where (i)
non-compliance would not have a material adverse effect on the business,
financial position or results of operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole, or (ii) the necessity of compliance
therewith is contested in good faith by appropriate proceedings.
8.8. SECTION Taxes. The Borrower and its Material Subsidiaries have filed
all United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Borrower or any
Material Subsidiary except (i) where nonpayment would not have a material
adverse effect on the business, financial position or results of operations of
the Borrower and its Consolidated Subsidiaries, considered as a whole or (ii)
where the same are contested in good faith by appropriate proceedings. The
charges, accruals and reserves on the books of the Borrower and its Material
Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate.
8.9. SECTION Public Utility Holding Company Act. The Borrower is not a
holding company under the Public Utility Holding Company Act of 1935, as
amended.
9 ARTICLE
10 COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment
hereunder or any amount payable hereunder remains unpaid or any Facility LC
remains outstanding:
26
10.1. SECTION Information. The Borrower will deliver to each of the Banks:
(a) as soon as available and in any event within 120 days after
the end of each fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such fiscal year and
the related consolidated statements of income, cash flows, capitalization and
retained earnings for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on in a
manner consistent with the requirements of the Securities and Exchange
Commission by Deloitte & Touche or other independent public accountants of
nationally recognized standing;
(b) as soon as available and in any event within 60 days after the
end of each of the first three quarters of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as
of the end of such quarter and the related consolidated statements of income and
cash flows for such quarter and for the portion of the Borrower's fiscal year
ended at the end of such quarter, setting forth in each case in comparative form
the figures for the corresponding quarter and the corresponding portion of the
Borrower's previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, generally accepted accounting
principles and consistency by an Approved Officer of the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of an
Approved Officer of the Borrower stating whether any Default exists on the date
of such certificate and, if any Default then exists, setting forth the details
thereof and the action which the Borrower is taking or proposes to take with
respect thereto;
(d) within five days after any officer of the Borrower with
responsibility relating thereto obtains knowledge of any Default, if such
Default is then continuing, a certificate of an Approved Officer of the Borrower
setting forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(e) promptly upon the filing thereof copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which the Borrower shall have filed with the Securities and
Exchange Commission;
(f) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Material Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows that
the plan administrator of any Material Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such reportable
event given or required to be given to the PBGC; (ii) receives notice of
complete or partial withdrawal liability under Title IV of ERISA or notice that
any Material Plan is in reorganization, is
27
insolvent or has been terminated, a copy of such notice; (iii) receives notice
from the PBGC under Title IV of ERISA of an intent to terminate, impose material
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or appoint a trustee to administer any Plan, a copy of such notice; (iv) applies
for a waiver of the minimum funding standard under Section 412 of the Internal
Revenue Code, a copy of such application; (v) gives notice of intent to
terminate any Material Plan under Section 4041(c) of ERISA, a copy of such
notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Material Plan pursuant to Section 4063 of ERISA, a copy of
such notice; or (vii) fails to make any payment or contribution to any Material
Plan or makes any amendment to any Material Plan which has resulted or could
result in the imposition of a Lien or the posting of a bond or other security, a
certificate of the chief financial officer or the chief accounting officer of
the Borrower setting forth details as to such occurrence and action, if any,
which the Borrower or applicable member of the ERISA Group is required or
proposes to take; and
(g) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the
Administrative Agent, at the request of any Bank, may reasonably request.
Information required to be delivered pursuant to these Sections
5.01(a), 5.01(b) and 5.0.1(e) shall be deemed to have been delivered on the date
on which the Borrower provides notice to the Banks that such information has
been posted on the Securities and Exchange Commission website on the Internet at
sec.gov/edaux/searches.htm or at another website identified in such notice and
accessible by the Banks without charge; provided that (i) such notice may be
included in a certificate delivered pursuant to Section 5.01(c) and (ii) the
Borrower shall deliver paper copies of the information referred to in Sections
5.01(a), 5,01(b) and 5.01(e) to any Bank which requests such delivery.
10.2. SECTION Payment of Taxes. The Borrower will pay and discharge, and
will cause each Material Subsidiary to pay and discharge, at or before maturity,
all their tax liabilities, except where (i) nonpayment would not have a material
adverse effect on the business, financial position or results of operations of
the Borrower and its Consolidated Subsidiaries, considered as a whole, or (ii)
the same may be contested in good faith by appropriate proceedings, and will
maintain, and will cause each Material Subsidiary to maintain, in accordance
with generally accepted accounting principles, appropriate reserves for the
accrual of any of the same.
10.3. SECTION Maintenance of Property; Insurance. (a) The Borrower will
keep, and will cause each Material Subsidiary to keep, all property useful and
necessary in its business in good working order and condition, ordinary wear and
tear excepted.
(b) The Borrower will, and will cause each of its Material
Subsidiaries to, maintain (either in the name of the Borrower or in such
Subsidiary's own name) with financially sound and responsible insurance
companies, insurance on all their respective properties in at least such amounts
and against at least such risks (and with such risk retention) as are usually
insured against in the same general area by companies of established repute
engaged in the same or a similar business; provided that self-insurance by the
Borrower or any such Material Subsidiary
28
shall not be deemed a violation of this covenant to the extent that companies
engaged in similar businesses and owning similar properties in the same general
areas in which the Borrower or such Material Subsidiary operates self-insure;
and will furnish to the Banks, upon request from the Administrative Agent,
information presented in reasonable detail as to the insurance so carried.
10.4. SECTION Maintenance of Existence. The Borrower will preserve, renew
and keep in full force and effect, and will cause each Material Subsidiary to
preserve, renew and keep in full force and effect their respective corporate
existence and their respective rights, privileges and franchises material to the
normal conduct of their respective businesses; provided that nothing in this
Section 5.04 shall prohibit the termination of any right, privilege or franchise
of the Borrower or any Material Subsidiary or of the corporate existence of any
Material Subsidiary if the Borrower in good faith determines that such
termination is in the best interest of the Borrower and is not materially
disadvantageous to the Banks.
10.5. SECTION Compliance with Laws. The Borrower will comply, and cause each
Material Subsidiary to comply, in all material respects with all applicable
laws, ordinances, rules, regulations, and requirements of governmental
authorities (including, without limitation, ERISA and Environmental Laws) except
where (i) noncompliance would not have a material adverse effect on the
business, financial position or results of operations of the Borrower and its
Consolidated Subsidiaries, considered as a whole, or (ii) the necessity of
compliance therewith is contested in good faith by appropriate proceedings.
10.6. SECTION Books and Records. The Borrower will keep, and will cause each
Material Subsidiary to keep, proper books of record and account in which full,
true and correct entries shall be made of all financial transactions in relation
to its business and activities in accordance with its customary practices; and
will permit, and will cause each Material Subsidiary to permit, representatives
of any Bank at such Bank's expense (accompanied by a representative of the
Borrower, if the Borrower so desires) to visit any of their respective
properties, to examine any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants, all upon such reasonable notice,
at such reasonable times and as often as may reasonably be desired.
10.7. SECTION Maintenance of Ownership of Principal Subsidiaries. The
Borrower will maintain ownership of all shares of the common stock of each
Principal Subsidiary, directly or indirectly through Subsidiaries, free and
clear of all Liens, provided that any Principal Subsidiary may merge with and
into the Borrower or another wholly-owned Subsidiary.
10.8. SECTION Negative Pledge. The Borrower will not create, assume or
suffer to exist any Lien on any asset now owned or hereafter acquired by it,
except:
(a) Liens granted by the Borrower existing on the date of this
Agreement securing Indebtedness outstanding on the date of this Agreement in an
aggregate principal amount not exceeding $100,000,000;
29
(b) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into the Borrower and not
created in contemplation of such event;
(c) any Lien existing on any asset prior to the acquisition
thereof by the Borrower and not created in contemplation of such acquisition;
(d) any Lien on any asset securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the cost of acquiring
such asset, provided that such Lien attaches to such asset concurrently with or
within 180 days after the acquisition thereof;
(e) any Lien arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Indebtedness is not
increased and is not secured by any additional assets;
(f) Liens for taxes, assessments or other governmental charges or
levies not yet due or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with generally accepted accounting
principles;
(g) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law, created in
the ordinary course of business and for amounts not past due for more than 60
days or which are being contested in good faith by appropriate proceedings which
are sufficient to prevent imminent foreclosure of such Liens, are promptly
instituted and diligently conducted and with respect to which adequate reserves
or other appropriate provisions are being maintained in accordance with
generally accepted accounting principles;
(h) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal bonds) in
connection with workers' compensation, unemployment insurance and other types of
social security benefits or to secure the performance of tenders, bids, leases,
contracts (other than for the repayment of Indebtedness), statutory obligations
and other similar obligations or arising as a result of progress payments under
government contracts;
(i) easements (including, without limitation, reciprocal easement
agreements and utility agreements), rights-of-way, covenants, consents,
reservations, encroachments, variations and other restrictions, charges or
encumbrances (whether or not recorded) affecting the use of real property;
(j) Liens with respect to judgments and attachments which do not
result in an Event of Default;
30
(k) Liens, deposits or pledges to secure the performance of bids,
tenders, contracts (other than contracts for the payment of money), leases
(permitted under the terms of this Agreement), public or statutory obligations,
surety, stay, appeal, indemnity, performance or other obligations arising in the
ordinary course of business;
(l) Liens required by Section 2.16(k) and other similar customary
cash collateral requirements with respect to letters of credit upon the
occurrence of a default, including, without limitation, such requirements under
the Three-Year Credit Agreement; and
(m) other Liens including Liens imposed by Environmental Laws
arising in the ordinary course of its business which (i) do not secure
Indebtedness, (ii) do not secure any obligation in an amount exceeding
$100,000,000 at any time at which Investment Grade Status does not exist as to
the Borrower and (iii) do not in the aggregate materially detract from the value
of its assets or materially impair the use thereof in the operation of its
business.
10.9. SECTION Consolidations, Mergers and Sales of Assets. The Borrower will
not (i) consolidate or merge with or into any other Person or (ii) sell, lease
or otherwise transfer, directly or indirectly, Substantial Assets to any Person
(other than a Subsidiary); provided that the Borrower may merge with another
Person if the Borrower is the corporation surviving such merger and, after
giving effect thereto, no Default shall have occurred and be continuing.
10.10. SECTION Use of Proceeds. The proceeds of the Loans made under this
Agreement will be used by the Borrower for its general corporate purposes,
including liquidity support for outstanding commercial paper. None of such
proceeds will be used, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of buying or carrying any "margin stock"
within the meaning of Regulation U.
10.11. SECTION Transactions with Affiliates. The Borrower will not, and will
not permit any Subsidiary to, directly or indirectly, pay any funds to or for
the account of, make any investment in, lease, sell, transfer or otherwise
dispose of any assets, tangible or intangible, to, or participate in, or effect,
any transaction with, any Affiliate unless all such transactions between the
Borrower and its Subsidiaries on the one hand and any Affiliate on the other,
taken in the aggregate and not individually, shall be on an arms-length basis on
terms no less favorable to the Borrower or such Subsidiary than could have been
obtained from a third party who was not an Affiliate; provided that the
foregoing provisions of this Section shall not prohibit the Borrower and each
Subsidiary from (i) declaring or paying any lawful dividend so long as, after
giving effect thereto, no Default shall have occurred and be continuing, (ii)
issuing and maintaining letters of credit, guaranties and sureties as contingent
obligations on behalf of Affiliates, or (iii) the payment of funds and making of
capital contributions, loans and other transfers of money to Affiliates or to
other Persons, including payments made under letters of credit, guarantees and
sureties issued and maintained on behalf of Affiliates, provided that the
aggregate amount for all such payments and transfers does not exceed
$200,000,000 at any time outstanding.
10.12. SECTION Indebtedness/Capitalization Ratio. The ratio of Consolidated
Indebtedness to Consolidated Capitalization will at no time exceed 65%.
31
10.13. SECTION Post-closing Consents/Waivers. The Borrower agrees to obtain
and deliver to the Administrative Agent no later than September 1, 2001 (but in
any event prior to the occurrence of any Event of Default) waivers, amendments
or consents, in form and substance reasonably satisfactory to the Administrative
Agent, to the 364-Day Credit Agreement dated as of August 21, 2000 among the
Borrower, certain lenders and The Chase Manhattan Bank, as administrative agent,
and to the Five-Year Credit Agreement dated as of August 25, 1997 among the
Borrower, certain lenders and The Chase Manhattan Bank, as administrative agent,
to the extent either such agreement is still in effect, permitting the cash
collateralization provisions of this Agreement relating to LC Obligations.
11 ARTICLE
12 DEFAULTS
12.1. SECTION Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any
Loan or Reimbursement Obligation or shall fail to pay, within five days of the
due date thereof, any interest, fees or any other amount payable hereunder;
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.04, 5.08, 5.09, 5.12 or the second sentence of 5.10,
inclusive;
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a) or
(b) above) for 30 days after notice thereof has been given to the Borrower by
the Administrative Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made
by the Borrower in this Agreement or in any certificate, financial statement or
other document delivered pursuant to this Agreement shall prove to have been
incorrect in any material respect when made (or deemed made);
(e) the Borrower or any Subsidiary shall fail to make any payment
in respect of Material Debt (other than the Loans) when due or within any
applicable grace period;
(f) any event or condition shall occur and shall continue beyond
the applicable grace or cure period, if any, provided with respect thereto so as
to result in the acceleration of the maturity of Material Debt;
(g) the Borrower or any Material Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
32
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall admit in writing its inability to, or shall
fail generally to, pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Borrower or any Material Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of 90 days; or an order for relief shall be entered against the Borrower
or any Material Subsidiary under the federal bankruptcy laws as now or hereafter
in effect;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $25,000,000 which it shall have
become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice
of intent to terminate a Plan or Plans having aggregate Unfunded Vested
Liabilities in excess of $50,000,000 (collectively, a "Material Plan") shall be
filed under Title IV of ERISA by any member of the ERISA Group, any plan
administrator or any combination of the foregoing; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate or to cause a trustee to be
appointed to administer any Material Plan or a proceeding shall be instituted by
a fiduciary of any Material Plan against any member of the ERISA Group to
enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have
been dismissed within 90 days thereafter; or a condition shall exist by reason
of which the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated;
(j) a judgment or other court order for the payment of money in
excess of $50,000,000 shall be rendered against the Borrower or any Material
Subsidiary and such judgment or order shall continue without being vacated,
discharged, satisfied or stayed or bonded pending appeal for a period of 45
days;
(k) the Borrower shall cease to be a Subsidiary or Affiliate of
Duke Energy Corporation; or
(l) an "Event of Default" as defined in the Three-Year Credit
Agreement shall have occurred and be continuing;
then, and in every such event, the Administrative Agent shall (i) if requested
by Banks having Pro Rata Shares of more than 66 2/3%, by notice to the Borrower
terminate the Commitments and they shall thereupon terminate, (ii) if requested
by Banks having Pro Rata Shares of more than 66 2/3%, by notice to the Borrower
declare the Loans and all Reimbursement Obligations (together
33
with accrued interest thereon) to be, and the Loans and all Reimbursement
Obligations shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower, and (iii) if requested by Banks having Pro Rata
Shares of more than 66 2/3%, by notice to the Borrower and in addition to the
continuing right to demand payment of all amounts payable under the Loan
Documents, make demand on the Borrower to pay, and the Borrower will, forthwith
upon such demand and without any further notice, act or demand, pay to the
Administrative Agent an amount in immediately available funds, which funds shall
be held in the Facility LC Collateral Account, equal to the difference of (x)
the amount of LC Obligations at such time, less (y) the amount on deposit in the
Facility LC Collateral Account at such time which is free and clear of all
rights and claims of third parties and has not been applied against the
Obligations (such difference, the "Collateral Shortfall Amount"); provided that
in the case of any of the Events of Default specified in clause (g) or (h) above
with respect to the Borrower, without any notice to the Borrower or any other
act by the Administrative Agent or the Banks, the Commitments shall thereupon
terminate and the Loans and all Reimbursement Obligations (together with accrued
interest thereon) shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower, and the Borrower will be and become thereby unconditionally
obligated, without any further notice, act or demand, to pay forthwith to the
Administrative Agent the Collateral Shortfall Amount, which funds shall be
deposited in the Facility LC Collateral Account.
If at any time after the Banks have requested the Borrower to pay the
Administrative Agent funds to be held in the Facility LC Collateral Account, the
Administrative Agent determines that the Collateral Shortfall Amount at such
time is greater than zero, the Administrative Agent may make demand on the
Borrower to pay, and the Borrower will, forthwith upon such demand and without
any further notice or act, pay to the Administrative Agent the Collateral
Shortfall Amount, which funds shall be deposited in the Facility LC Collateral
Account.
The Administrative Agent may at any time or from time to time after
funds are deposited in the Facility LC Collateral Account, apply such funds to
the payment of the LC Obligations and any other amounts as shall from time to
time have become due and payable by the Borrower to the Banks or the LC Issuers
under the Loan Documents.
At any time while any Event of Default is continuing, neither the
Borrower nor any Person claiming on behalf of or through the Borrower shall have
any right to withdraw any of the funds held in the Facility LC Collateral
Account. After the sooner of (i) the Required Banks waiving the Event(s) of
Default that gave rise to requesting the Borrower to pay funds into the Facility
LC Collateral Account and (ii) all of the LC Obligations have been indefeasibly
paid in full and all Facility LCs have expired or terminated and the Aggregate
Commitment has been terminated, any funds remaining in the Facility LC
Collateral Account, including accrued interest, after application to any other
Obligations then due and owing to the Administrative Agent and the Banks, shall
be returned by the Administrative Agent to the Borrower or paid to
34
whomever may be legally entitled thereto at such time.
12.2. SECTION Notice of Default. The Administrative Agent shall give notice
to the Borrower under Section 6.01(c) promptly upon being requested to do so by
any Bank and shall thereupon notify all the Banks thereof.
13 ARTICLE
14 THE ADMINISTRATIVE AGENT
14.1. SECTION Appointment; Nature of Relationship. Bank One is hereby
appointed by each of the Banks as its contractual representative (herein
referred to as the Administrative Agent) hereunder and under each other Loan
Document, and each of the Banks irrevocably authorizes the Administrative Agent
to act as the contractual representative of such Bank with the rights and duties
expressly set forth herein and in the other Loan Documents. The Administrative
Agent agrees to act as such contractual representative upon the express
conditions contained in this Article 7. Notwithstanding the use of the defined
term "Administrative Agent," it is expressly understood and agreed that the
Administrative Agent shall not have any fiduciary responsibilities to any Bank
by reason of this Agreement or any other Loan Document and that the
Administrative Agent is merely acting as the contractual representative of the
Banks with only those duties as are expressly set forth in this Agreement and
the other Loan Documents. In its capacity as the Banks' contractual
representative, the Administrative Agent (i) does not hereby assume any
fiduciary duties to any of the Banks, (ii) is a "representative" of the Banks
within the meaning of Section 9-105 of the Uniform Commercial Code and (iii) is
acting as an independent contractor, the rights and duties of which are limited
to those expressly set forth in this Agreement and the other Loan Documents.
Each of the Banks hereby agrees to assert no claim against the Administrative
Agent on any agency theory or any other theory of liability for breach of
fiduciary duty, all of which claims each Bank hereby waives.
The Administrative Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Administrative Agent by
the terms of each thereof, together with such powers as are reasonably
incidental thereto. The Administrative Agent shall have no implied duties to the
Banks, or any obligation to the Banks to take any action thereunder except any
action specifically provided by the Loan Documents to be taken by the
Administrative Agent.
14.2. SECTION Administrative Agent and Affiliates. Bank One shall have the
same rights and powers under this Agreement as any other Bank and may exercise
or refrain from exercising the same as though it were not the Administrative
Agent, and Bank One and its affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with the Borrower or any Subsidiary
or affiliate of the Borrower as if it were not the Administrative Agent
hereunder.
14.3. SECTION Action by Administrative Agent. The obligations of the
Administrative Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the
35
foregoing, the Administrative Agent shall not be required to take any action
with respect to any Default, except as expressly provided in Article 6.
14.4. SECTION Consultation with Experts. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken by it in good faith in accordance with
the advice of such counsel, accountants or experts.
14.5. SECTION Liability of Administrative Agent. Neither the Administrative
Agent nor any of its affiliates nor any of their respective directors, officers,
agents or employees shall be liable to any Bank for any action taken or not
taken by it in connection herewith (i) with the consent or at the request of the
Required Banks or (ii) in the absence of its own gross negligence or willful
misconduct. Neither the Administrative Agent nor any of its affiliates nor any
of their respective directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into or verify (i) any
statement, warranty or representation made in connection with this Agreement or
any borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of the Borrower; (iii) the satisfaction of any condition
specified in Article 3, except receipt of items required to be delivered to the
Administrative Agent; or (iv) the validity, effectiveness or genuineness of this
Agreement, the Notes or any other instrument or writing furnished in connection
herewith. The Administrative Agent shall not incur any liability by acting in
reliance upon any notice, consent, certificate, statement, or other writing
(which may be a bank wire, telex or similar writing) believed by it in good
faith to be genuine or to be signed by the proper party or parties. Without
limiting the generality of the foregoing, the use of the term "agent" in this
Agreement with reference to the Administrative Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. Instead, such term is used merely as a matter of
market custom and is intended to create or reflect only an administrative
relationship between independent contracting parties.
14.6. SECTION Indemnification. Each Bank shall, ratably in accordance with
its Commitment, indemnify the Administrative Agent, its affiliates and their
respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this Agreement or any action
taken or omitted by such indemnitees thereunder.
14.7. SECTION Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Bank also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking any action under this Agreement.
14.8. SECTION Successor Administrative Agent. The Administrative Agent may
resign at any time by giving notice thereof to the Banks and the Borrower. Upon
any such resignation, the Borrower, with the consent of the Required Banks (such
consent not to be unreasonably withheld
36
or delayed), shall have the right to appoint a successor Administrative Agent.
If no successor Administrative Agent shall have been so appointed, and shall
have accepted such appointment, within 30 days after the retiring Administrative
Agent gives notice of resignation, then the retiring Administrative Agent may,
on behalf of the Banks, appoint a successor Administrative Agent, which shall be
a commercial bank organized or licensed under the laws of the United States of
America or of any State thereof and having a combined capital and surplus of at
least $250,000,000. Upon the acceptance of its appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder; provided that if such successor Administrative Agent is appointed
without the consent of the Borrower, such successor Administrative Agent may be
replaced by the Borrower with the consent of the Required Banks. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Article shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent.
14.9. SECTION Administrative Agent's Fee. The Borrower shall pay to the
Administrative Agent for its own account fees in the amounts and at the times
previously agreed upon between the Borrower and the Administrative Agent.
15 ARTICLE
16 CHANGE IN CIRCUMSTANCES
16.1. SECTION Basis for Determining Interest Rate Inadequate or Unfair. If
on or prior to the first day of any Interest Period for any Euro-Dollar
Borrowing:
(a) the Administrative Agent determines that deposits in dollars
(in the applicable amounts) are not being offered to the Administrative Agent in
the relevant market for such Interest Period, or
(b) in the case of a Euro-Dollar Borrowing, Banks having 662/3% or
more of the aggregate amount of the affected Loans advise the Administrative
Agent that the Euro-Dollar Base Rate as determined by the Administrative Agent
will not adequately and fairly reflect the cost to such Banks of funding their
Euro-Dollar Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Banks to make Euro-Dollar Loans or to continue or convert
outstanding Loans as or into Euro-Dollar Loans shall be suspended and (ii) each
outstanding Euro-Dollar Loan shall be converted into a Alternate Base Rate Loan
on the last day of the then current Interest Period applicable thereto. Unless
the Borrower notifies the Administrative Agent at least one Domestic Business
Day before the date of any Euro-Dollar Borrowing for which a Notice of Borrowing
has previously been given that it elects not to borrow on such date, such
Borrowing shall instead be made as a Alternate Base Rate Borrowing.
37
16.2. SECTION Illegality. If, on or after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Euro-Dollar Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for any Bank (or its
Euro-Dollar Leading Office) to make, maintain or fund any of its Euro-Dollar
Loans and such Bank shall so notify the Administrative Agent, the Administrative
Agent shall forthwith give notice thereof to the other Banks and the Borrower,
whereupon until such Bank notifies the Borrower and the Administrative Agent
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans, or to continue or convert
outstanding Loans as or into Euro-Dollar Loans, shall be suspended. Before
giving any notice to the Administrative Agent pursuant to this Section, such
Bank shall designate a different Euro-Dollar Lending Office if such designation
will avoid the need for giving such notice and will not be otherwise
disadvantageous to such Bank in the good faith exercise of its discretion. If
such notice is given, each Euro-Dollar Loan of such Bank then outstanding shall
be converted to a Alternate Base Rate Loan either (a) on the last day of the
then current Interest Period applicable to such Euro-Dollar Loan if such Bank
may lawfully continue to maintain and fund such Loan to such day or (b)
immediately if such Bank shall determine that it may not lawfully continue to
maintain and fund such Loan to such day.
16.3. SECTION Increased Cost and Reduced Return. (a) If on or after the date
of this Agreement, in the case of any Loan or Facility LC or any obligation to
make Loans or issue or maintain Facility LCs, the adoption of any applicable
law, rule or regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Applicable Lending Office) or any LC Issuer with any request or directive
(whether or not having the force of law) issued on or after such date of any
such authority, central bank or comparable agency shall impose, modify or deem
applicable any reserve, special deposit or similar requirement (including,
without limitation, any such requirement imposed by the Board of Governors of
the Federal Reserve System, but excluding with respect to any Euro-Dollar Loan
any such requirement included in an applicable Euro-Dollar Reserve Percentage)
against assets of, deposits with or for the account of, or credit extended by,
any Bank (or its Applicable Lending Office) or any LC Issuer or shall impose on
any Bank (or its Applicable Lending Office) or any LC Issuer or on the London
interbank market any other condition (other than in respect of Taxes or Other
Taxes) affecting its Euro-Dollar Loans, its Note, any Facility LC Application,
any Facility LCs, its obligation to make Euro-Dollar Loans or its obligation to
issue or to participate in Facility LCs and the result of any of the foregoing
is to increase the cost to such Bank (or its Applicable Lending Office) or such
LC Issuer of making or maintaining any Euro-Dollar Loan or Facility LC, or to
reduce the amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) or such LC Issuer under this Agreement or under its
Note with
38
respect thereto, by an amount deemed by such Bank or such LC Issuer to be
material, then, within 15 days after demand by such Bank or such LC Issuer (with
a copy to the Administrative Agent), the Borrower shall pay to such Bank or such
LC Issuer such additional amount or amounts as will compensate such Bank or such
LC Issuer for such increased cost or reduction; provided that no such amount
shall be payable with respect to any period commencing more than 90 days prior
to the date such Bank or such LC Issuer first notifies the Borrower of its
intention to demand compensation therefor under this Section 8.03(a) unless such
increased cost or reduction is imposed on such Bank or such LC Issuer on a
retroactive basis.
(b) If any Bank or any LC Issuer shall have determined that, on or
after the date of this Agreement, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change in any such law, rule or
regulation, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency given or made after the date of this
Agreement, has or would have the effect of reducing the rate of return on
capital of such Bank or LC Issuer (or its Parent) as a consequence of such
Bank's or LC Issuer's obligations hereunder to a level below that which such
Bank or LC Issuer (or its Parent) could have achieved but for such adoption,
change, request or directive (taking into consideration its policies with
respect to capital adequacy) by an amount deemed by such Bank or LC Issuer to be
material, then from time to time, within 15 days after demand by such Bank or LC
Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such
Bank or LC Issuer such additional amount or amounts as will compensate such Bank
or LC Issuer (or its Parent) for such reduction; provided that no such amount
shall be payable with respect to any period commencing less than 30 days after
the date such Bank or LC Issuer first notifies the Borrower of its intention to
demand compensation under this Section 8.03(b).
(c) Each Bank and LC Issuer will promptly notify the Borrower and
the Administrative Agent of any event of which it has knowledge, occurring after
the date hereof, which will entitle such Bank or LC Issuer to compensation
pursuant to this Section and will designate a different Applicable Lending
Office if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the judgment of such Bank or LC Issuer, be
otherwise disadvantageous to such Bank or LC Issuer. A certificate of any Bank
or LC Issuer claiming compensation under this Section and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount, such Bank or LC
Issuer may use any reasonable averaging and attribution methods.
16.4. SECTION Taxes. (a) For purposes of this Section 8.04, the following
terms have the following meanings:
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by the
Borrower pursuant to this Agreement or any Note or Facility LC Application, and
all liabilities with respect thereto,
39
excluding (i) in the case of each Bank, LC Issuer and the Administrative Agent,
taxes imposed on its income, net worth or gross receipts and franchise or
similar taxes imposed on it by a jurisdiction under the laws of which such Bank,
LC Issuer or the Administrative Agent (as the case may be) is organized or in
which its principal executive office is located or, in the case of each Bank, in
which its Applicable Lending Office is located and (ii) in the case of each Bank
and LC Issuer, any United States withholding tax imposed on such payments except
to the extent that such Bank and LC Issuer is subject to United States
withholding tax by reason of a U.S. Tax Law Change.
"Other Taxes" means any present or future stamp or documentary taxes
and any other excise or property taxes, or similar charges or levies, which
arise from any payment made pursuant to this Agreement or under any Note or
Facility LC Application or from the execution or delivery of, or otherwise with
respect to, this Agreement or any Note or Facility LC Application.
"U.S. Tax Law Change" means with respect to any Bank or Participant the
occurrence (x) in the case of each Bank listed on the signature pages hereof,
after the date of its execution and delivery of this Agreement and (y) in the
case of any other Bank, after the date such Bank shall have become a Bank
hereunder, and (z) in the case of each Participant, after the date such
Participant became a Participant hereunder, of the adoption of any applicable
U.S. federal law, U.S. federal rule or U.S. federal regulation relating to
taxation, or any change therein, or the entry into force, modification or
revocation of any income tax convention or treaty to which the United States is
a party.
(b) Any and all payments by the Borrower to or for the account of
any Bank, LC Issuer or the Administrative Agent hereunder or under any Note or
Facility LC Application shall be made without deduction for any Taxes or Other
Taxes; provided that, if the Borrower shall be required by law to deduct any
Taxes or Other Taxes from any such payments, (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 8.04) such
Bank, LC Issuer or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions, (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 9.01, the original
or a certified copy of a receipt evidencing payment thereof.
(c) The Borrower agrees to indemnify each Bank, LC Issuer and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 8.04) paid by such Bank, LC
Issuer or the Administrative Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. This
40
indemnification shall be paid within 15 days after such Bank, LC Issuer or the
Administrative Agent (as the case may be) makes demand therefor.
(d) Each Bank organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter as required by law (but only so long as such
Bank remains lawfully able to do so), shall provide the Borrower two completed
and duly executed copies of Internal Revenue Service form W-8BEN or W-8ECI, as
appropriate, or any successor form prescribed by the Internal Revenue Service,
or other documentation reasonably requested by the Borrower, certifying that
such Bank is entitled to benefits under an income tax treaty to which the United
States is a party which exempts the Bank from United States withholding tax or
reduces the rate of withholding tax on payments of interest for the account of
such Bank or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States.
(e) For any period with respect to which a Bank has failed to
provide the Borrower with the appropriate form pursuant to Section 8.04(d)
(unless such failure is due to a U.S. Tax Law Change), such Bank shall not be
entitled to indemnification under Section 8.04(b) or 8.04(c) with respect to any
Taxes or Other Taxes which would not have been payable had such form been so
provided, provided that if a Bank, which is otherwise exempt from or subject to
a reduced rate of withholding tax, becomes subject to Taxes because of its
failure to deliver a form required hereunder, the Borrower shall take such steps
as such Bank shall reasonably request to assist such Bank to recover such Taxes
(it being understood, however, that the Borrower shall have no liability to such
Bank in respect of such Taxes).
(f) If the Borrower is required to pay additional amounts to or
for the account of any Bank pursuant to this Section 8.04, then such Bank will
take such action (including changing the jurisdiction of its Applicable Lending
Office) as in the good faith judgment of such Bank (i) will eliminate or reduce
any such additional payment which may thereafter accrue and (ii) is not
otherwise disadvantageous to such Bank.
(g) If any Bank or the Administrative Agent receives a refund
(including a refund in the form of a credit against taxes that are otherwise
payable by the Bank or the Administrative Agent) of any Taxes or Other Taxes for
which the Borrower has made a payment under Section 8.04(b) or (c) and such
refund was received from the taxing authority which originally imposed such
Taxes or Other Taxes, such Bank or the Administrative Agent agrees to reimburse
the Borrower to the extent of such refund, provided that nothing contained in
this paragraph (g) shall require any Bank or the Administrative Agent to make
available its tax returns (or any other information relating to its taxes which
it deems to be confidential).
16.5. SECTION Alternate Base Rate Loans Substituted for Affected Euro-Dollar
Loans. If (i) the obligation of any Bank to make or to continue or convert
outstanding Loans as or into
41
Euro-Dollar Loans has been suspended pursuant to Section 8.02 or (ii) any Bank
has demanded compensation under Section 8.03(a) or 8.04 with respect to its
Euro-Dollar Loans and the Borrower shall, by at least five Euro-Dollar Business
Days' prior notice to such Bank through the Administrative Agent, have elected
that the provisions of this Section shall apply to such Bank, then, unless and
until such Bank notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank as (or
continued as or converted to) Euro-Dollar Loans, as the case may be, shall
instead be Alternate Base Rate Loans (on which interest and principal shall be
payable contemporaneously with the related Euro-Dollar Loans of the other
Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all
payments of principal which would otherwise be applied to repay such Loans shall
be applied to repay its Alternate Base Rate Loans instead.
If such Bank notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer exist, the principal amount of
each such Alternate Base Rate Loan shall be converted into a Euro-Dollar Loan on
the first day of the next succeeding Interest Period applicable to the related
Euro-Dollar Loans of the other Banks.
16.6. SECTION Substitution of Bank. If (i) the obligation of any Bank to
make or to convert or continue outstanding Loans as or into Euro-Dollar Loans
has been suspended pursuant to Section 8.02, (ii) any Bank has demanded
compensation under Section 8.03 or 8.04, (iii) any Bank exercises its right not
to extend its Commitment Termination Date pursuant to Section 2.01(c), or (iv)
Investment Grade Status ceases to exist as to any Bank, then:
(a) the Borrower shall have the right, with the assistance of the
Administrative Agent, to designate a substitute bank or banks (which may be one
or more of the Banks) mutually satisfactory to the Borrower and the
Administrative Agent (whose consent shall not be unreasonably withheld or
delayed) to purchase for cash, pursuant to an Assignment and Assumption
Agreement in substantially the form of Exhibit C hereto, the outstanding Loans,
Reimbursement Obligations and Facility LC participations of such Bank and assume
the Commitment of such Bank, without recourse to or warranty by, or expense to,
such Bank, for a purchase price equal to the principal amount of all of such
Bank's outstanding Loans and Reimbursement Obligations plus any accrued but
unpaid interest thereon and the accrued but unpaid fees in respect of such
Bank's Commitment and Facility LCs hereunder plus such amount, if any, as would
be payable pursuant to Section 2.13 if the outstanding Loans of such Bank were
prepaid in their entirety on the date of consummation of such assignment, and
the Borrower shall cause the termination or cancellation of all Facility LCs
issued by such Bank, not later than the date of consummation of such assignment;
and
(b) if at the time Investment Grade Status exists as to the
Borrower and no Default and Event of Default then exists, the Borrower may elect
to terminate this Agreement as to such Bank, provided that (i) the Borrower
notifies such Bank through the Administrative Agent of
42
such election at least three Euro-Dollar Business Days before the effective date
of such termination, (ii) the Borrower repays or prepays the principal amount of
all outstanding Loans made by such Bank and Reimbursement Obligations of such
Bank plus any accrued but unpaid interest thereon and the accrued but unpaid
fees in respect of such Bank's Commitment and Facility LCs hereunder plus all
other amounts payable by the Borrower to such Bank hereunder, not later than the
effective date of such termination and (iii) the Borrower causes the termination
or cancellation of all Facility LCs issued by such Bank not later than the
effective date of such termination. Upon satisfaction of the foregoing
conditions, the Commitment of such Bank shall terminate on the effective date
specified in such notice.
17 ARTICLE
18 MISCELLANEOUS
18.1. SECTION Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including bank wire, telex, facsimile
transmission or similar writing) and shall be given to such party: (x) in the
case of the Borrower or the Administrative Agent, at its address or telecopy or
telex number set forth on the Notice Addresses Schedule, (y) in the case of any
Bank or LC Issuer, at its address or telecopy or telex number set forth in its
Administrative Questionnaire or the Notice Addresses Schedule or (z) in the case
of any party, such other address or telecopy or telex number as such party may
hereafter specify for the purpose by notice to the Administrative Agent and the
Borrower. Each such notice, request or other communication shall be effective
(i) if given by telecopy or telex, when such telecopy or telex is transmitted to
the telecopy or telex number specified in this Section and the appropriate
answerback or confirmation slip, as the case may be, is received, or (ii) if
given by any other means, when delivered at the address specified in this
Section; provided that notices to the Administrative Agent under Article 2 or
Article 3 shall not be effective until delivered.
18.2. SECTION No Waivers. No failure or delay by the Administrative Agent,
any LC Issuer or any Bank in exercising any right, power or privilege hereunder
or under any Note or Facility LC Application shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
18.3. SECTION Expenses; Indemnification. (a) The Borrower shall pay (i) all
reasonable out-of-pocket expenses of the Administrative Agent, including
reasonable fees and disbursements of special counsel for the Administrative
Agent, in connection with the preparation of this Agreement, any waiver or
consent hereunder or any amendment hereof or any Default or alleged Default
hereunder and (ii) if an Event of Default occurs, all reasonable out-of-pocket
expenses incurred by the Administrative Agent, any LC Issuer or any Bank,
including reasonable fees and disbursements of counsel, in connection with such
Event of Default and collection and other enforcement proceedings resulting
therefrom.
(b) The Borrower agrees to indemnify the Administrative Agent,
each LC Issuer and each Bank, their respective affiliates and the respective
directors, officers, agents and employees
43
of the foregoing (each an "Indemnitee") and hold each Indemnitee harmless from
and against any and all liabilities, losses, damages, costs and expenses of any
kind, including, without limitation, the reasonable fees and disbursements of
counsel, which may be incurred by such Indemnitee in connection with any
investigative, administrative or judicial proceeding (whether or not such
Indemnitee shall be designated a party thereto) relating to or arising out of
this Agreement or any actual or proposed use of proceeds of Loans hereunder;
provided that no Indemnitee shall have the right to be indemnified hereunder for
such Indemnitee's own gross negligence or willful misconduct as determined by a
court of competent jurisdiction.
18.4. SECTION Sharing of Set-offs. Each Bank agrees that if it shall, by
exercising any right of set-off or counterclaim or otherwise, receive payment of
a proportion of the aggregate amount then due with respect to the Obligations
held by it which is greater than the proportion received by any other Bank in
respect of the aggregate amount then due with respect to the Loans held by such
other Bank, the Bank receiving such proportionately greater payment shall
purchase such participations in the Obligations held by the other Banks, and
such other adjustments shall be made, as may be required so that all such
payments with respect to the Loans held by the Banks shall be shared by the
Banks pro rata; provided that nothing in this Section shall impair the right of
any Bank to exercise any right of set-off or counterclaim it may have and to
apply the amount subject to such exercise to the payment of indebtedness of the
Borrower other than its indebtedness under this Agreement.
18.5. SECTION Amendments and Waivers. Any provision of this Agreement or the
Notes may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed by the Borrower and the Required Banks (and, if the rights
or duties of the Administrative Agent are affected thereby, by the
Administrative Agent and, if the rights or duties of an LC Issuer are affected
thereby, by such LC Issuer); provided that no such amendment or waiver shall,
unless signed by all the Banks, (i) increase or decrease the Commitment of any
Bank (except for a ratable decrease in the Commitments of all Banks) or subject
any Bank to any additional obligation, (ii) reduce the principal of or rate of
interest on any Obligations or any fees hereunder, (iii) postpone the date fixed
for any payment of principal of or interest on any Loan or interest thereon or
any fees hereunder or for termination of any Commitment or (iv) change the
percentage of the Commitments or of the aggregate Pro Rata Shares, or the number
of Banks, which shall be required for the Banks or any of them to take any
action under this Section or any other provision of this Agreement.
18.6. SECTION Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Borrower may not assign or
otherwise transfer any of its rights under this Agreement without the prior
written consent of all Banks.
(b) Any Bank may, with (unless an Event of Default then exists)
the consent of the Borrower (such consent not to be unreasonably withheld or
delayed), at any time grant to one or more banks or other institutions (each a
"Participant") participating interests in its Commitment or any or all of its
Obligations. In the event of any such grant by a Bank of a participating
interest to a Participant, whether or not upon notice to the Administrative
Agent, such Bank shall remain responsible for the performance of its obligations
hereunder, and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Bank in connection
44
with such Bank's rights and obligations under this Agreement. Any agreement
pursuant to which any Bank may grant such a participating interest shall provide
that such Bank shall retain the sole right and responsibility to enforce the
obligations of the Borrower hereunder including, without limitation, the right
to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such participation agreement may provide that such Bank
will not agree to any modification, amendment or waiver of this Agreement
described in clause (i), (ii) or (iii) of Section 9.05 without the consent of
the Participant. The Borrower agrees that each Participant shall, to the extent
provided in its participation agreement, be entitled to the benefits of Article
8 with respect to its participating interest, subject to the performance by such
Participant of the obligations of a Bank thereunder. An assignment or other
transfer which is not permitted by subsection (c) or (d) below shall be given
effect for purposes of this Agreement only to the extent of a participating
interest granted in accordance with this subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
financial institutions (each an "Assignee") all, or a proportionate part
(equivalent to an initial Commitment of not less than $10,000,000 (unless the
Borrower and the Administrative Agent shall otherwise agree)) of all, of its
rights and obligations under this Agreement and its Note (if any), and such
Assignee shall assume such rights and obligations, pursuant to an Assignment and
Assumption Agreement in substantially the form of Exhibit C hereto executed by
such Assignee and such transferor Bank, with (and only with and subject to) the
prior written consent of the Borrower (given in its sole discretion), provided
that an Event of Default does not exist, and the Administrative Agent (which
shall not be unreasonably withheld or delayed), provided that unless such
assignment is of the entire right, title and interest of the transferor Bank
hereunder, after making any such assignment such transferor Bank shall have a
Commitment of at least $10,000,000 (unless the Borrower and the Administrative
Agent shall otherwise agree). Upon execution and delivery of such instrument of
assumption and payment by such Assignee to such transferor Bank of an amount
equal to the purchase price agreed between such transferor Bank and such
Assignee, such Assignee shall be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Bank, the Administrative Agent
and the Borrower shall make appropriate arrangements so that, if required by the
Assignee, a Note is issued to the Assignee. If the Assignee is not incorporated
under the laws of the United States of America or a state thereof it shall,
prior to the first date on which interest or fees are payable hereunder for its
account, deliver to the Borrower and the Administrative Agent certification as
to exemption from deduction or withholding of any United States federal income
taxes in accordance with Section 8.04. All assignments shall be subject to a
transaction fee established by, and payable by the transferor Bank to, the
Administrative Agent for its own account (which shall not exceed $4,000).
45
(d) Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Note (if any) to a Federal Reserve Bank. No
such assignment shall release the transferor Bank from its obligations hereunder
or modify any such obligations.
(e) No Assignee, Participant or other transferee of any Bank's
rights (including any Applicable Lending Office other than such Bank's initial
Applicable Lending Office) shall be entitled to receive any greater payment
under Section 8.03 or 8.04 than such Bank would have been entitled to receive
with respect to the rights transferred, unless such transfer is made by reason
of the provisions of Section 8.02, 8.03 or 8.04 requiring such Bank to designate
a different Applicable Lending Office under certain circumstances or at a time
when the circumstances giving rise to such greater payment did not exist.
18.7. SECTION Collateral. Each of the Banks represents to the Administrative
Agent and each of the other Banks that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
18.8. SECTION Confidentiality. The Administrative Agent and each Bank agree
to keep any information delivered or made available by the Borrower pursuant to
this Agreement confidential from anyone other than persons employed or retained
by such Bank and its affiliates who are engaged in evaluating, approving,
structuring or administering the credit facility contemplated hereby, provided
that nothing herein shall prevent any Bank from disclosing such information (a)
to any other Bank or to the Administrative Agent, (b) to any other Person if
reasonably incidental to the administration of the credit facility contemplated
hereby, (c) upon the order of any court or administrative agency, (d) upon the
request or demand of any regulatory agency or authority, (e) which had been
publicly disclosed other than as a result of a disclosure by the Administrative
Agent or any Bank prohibited by this Agreement, (f) in connection with any
litigation to which the Administrative Agent, any Bank or its subsidiaries or
Parent may be a party, (g) to the extent necessary in connection with the
exercise of any remedy hereunder, (h) to such Bank's or Administrative Agent's
legal counsel and independent auditors and (i) subject to provisions
substantially similar to those contained in this Section 9.08, to any actual or
proposed Participant or Assignee.
18.9. SECTION Governing Law; Submission to Jurisdiction. This Agreement and
each Note (if any) shall be construed in accordance with and governed by the law
of the State of New York. The Borrower hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York State court sitting in New York City for purposes
of all legal proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. The Borrower irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
18.10. SECTION Counterparts; Integration. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement constitutes the entire
46
agreement and understanding among the parties hereto and supersedes any and all
prior agreements and understandings, oral or written, relating to the subject
matter hereof.
18.11. SECTION WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE BANKS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
18.12. SECTION Payments Set Aside. To the extent that the Borrower makes a
payment to the Administrative Agent or any Bank, or the Administrative Agent or
any Bank exercises any right of set-off, and such payment or the proceeds of
such set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Bank in its
discretion) to be repaid by the Administrative Agent or such Bank (the "Repaying
Party") to a trustee, receiver or any other party, in connection with any
proceeding under any debtor relief law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred, and (b) each Bank
severally agrees to pay to the Repaying Party upon demand its applicable share
of any amount so recovered from or repaid by the Repaying Party, plus interest
thereon from the date of such demand to the date such payment is made at a rate
per annum equal to the Federal Funds Effective Rate from time to time in effect.
47
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
DUKE CAPITAL CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address: 422 South Church Street
Charlotte, NC 28202-1904
Attention:
Telecopy number:
BANK ONE, NA, as Administrative Agent,
LC Issuer and a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
2
FIRST UNION NATIONAL BANK,
as Co-Syndication Agent and a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
3
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
as Co-Syndication Agent and a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
4
DEUTSCHE BANK AG NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH, as Documentation
Agent and a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
5
BAYERISCHE LANDESBANK GIROZENTRALE,
CAYMAN ISLANDS BRANCH, as Co-Agent
and a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
6
ABN AMRO BANK N.V., as Co-Agent
and a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
7
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as Co-Agent and a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
8
WACHOVIA BANK, N.A., as Co-Agent
and a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
9
UBS AG, STAMFORD BRANCH, as a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
10
BNP PARIBAS, as a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
11
TORONTO DOMINION (TEXAS), INC., as a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
12
BANCA COMMERCIALE ITALIANA - LOS ANGELES
BRANCH, as a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
13
CITIBANK, N.A., as a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
14
THE INDUSTRIAL BANK OF JAPAN, LIMITED, as
a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
15
BARCLAYS BANK PLC, as a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
16
THE CHASE MANHATTAN BANK, as a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
17
BANK OF AMERICA, N.A., as a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
18
BANCO BILBAO VIZCAYA ARGENTARIA, as a
Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
19
WESTPAC BANKING CORPORATION, as a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
20
SUNTRUST BANK, as a Bank
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
21
Commitments Schedule
--------------------
Bank Commitment
---- ----------
Bank One, N.A. $50,000,000
First Union National Bank $50,000,000
Westdeutsche Landesbank Girozentrale $50,000,000
Deutsche Bank AG New York Branch and/or
Cayman Islands Branch $50,000,000
Bayerische Landesbank Girozentrale $37,500,000
ABN AMRO Bank N.V. $37,500,000
Bank of Tokyo-Mitsubishi
Trust Company $37,500,000
Wachovia Bank, N.A. $37,500,000
UBS, AG, Stamford Branch $25,000,000
BNP Paribas $25,000,000
Toronto Dominion (Texas), Inc. $25,000,000
Banca Commerciale Italiana -
Los Angeles Branch $12,500,000
Citibank, N.A. $12,500,000
The Industrial Bank of Japan, Limited $12,500,000
Barclays Bank PLC $12,500,000
The Chase Manhattan Bank $12,500,000
Bank of America, N.A. $12,500,000
Banco Bilbao Vizcaya Argentaria $12,500,000
Westpac Banking Corporation $12,500,000
SunTrust Bank $12,500,000
--------------------
Total $537,500,000
22
Pricing Schedule
----------------
The "Commitment Fee Rate" and the "Applicable Margin" for any day are
the respective percentages set forth below in the applicable row under the
column corresponding to the Status that exists on such day:
- ---------------------------------------------------------------------------------------------------
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V LEVEL VI
- ---------------------------------------------------------------------------------------------------
Commitment Fee Rate 0.08% 0.09% 0.105% 0.125% 0.15% 0.20%
- ---------------------------------------------------------------------------------------------------
Applicable Margin 0.50% 0.55% 0.625% 0.75% 1.0% 1.375%
Utilization #33-1/3%
- ---------------------------------------------------------------------------------------------------
Applicable Margin 0.5625% 0.6125% 0.6875% 0.8125% 1.0625% 1.4375%
Utilization
>33-1/3% but #66-2/3%
- ---------------------------------------------------------------------------------------------------
Applicable Margin 0.625% 0.675% 0.75% 0.875% 1.125% 1.5%
Utilization >66-2/3%
- ---------------------------------------------------------------------------------------------------
For purposes of this Schedule, the following terms have the following
meanings:
"Level I Status" exists at any date if, at such date, the Borrower is
rated "A+" or higher by S&P or "A1" or higher by Moody's.
"Level II Status" exists at any date if, at such date, (i) the Borrower
is rated "A" or higher by S&P or "A2" or higher by Moody's and (ii) Level I
Status does not exist.
"Level III Status" exists at any date if, at such date, (i) the
Borrower is rated "A-" or higher by S&P or "A3" or higher by Moody's and (ii)
neither Level I Status nor Level II Status exists.
"Level IV Status" exists at any date if, at such date, (i) the Borrower
is rated "BBB+" by S&P or "Baa1" by Moody's and (ii) neither Level I Status,
Level II Status nor Level III Status exists.
"Level V Status" exists at any date if, at such date, (i) the Borrower
is rated "BBB" by S&P or "Baa2" by Moody's and (ii) neither Level I Status,
Level II Status, Level III Status nor Level IV Status exists.
"Level VI Status" exists at any date if, at such date, no other Status
exists.
"Status" refers to the determination of which of Level I Status, Level
II Status, Level III Status, Level IV Status, Level V Status or Level VI Status
exists at any date.
"Utilization" means, at any date, the percentage equivalent of a
fraction (i) the numerator of which is the Aggregate Outstanding Credit Exposure
at such date and (ii) the denominator of which is the aggregate amount of the
Commitments at such date (or if such date is after the Commitment Termination
Date, the aggregate amount of the Commitments as in effect prior to their
termination on the Commitment Termination Date).
The credit ratings to be utilized for purposes of this Schedule (a
"Credit Rating") are those indicated for or assigned to the senior unsecured
long-term debt securities of the Borrower without third-party credit
enhancement, and any rating indicated for or assigned to any other debt security
of the Borrower shall be disregarded. The ratings in effect for any day are
those in effect at the close of business on such day. A change in credit rating
will result in an immediate change in the applicable Status. In the case of
split ratings from S&P and Moody's, the rating to be used to determine the
applicable Status is the higher of the two.
Notice Addresses Schedule
-------------------------
DUKE CAPITAL CORPORATION
422 South Church Street
Charlotte, NC 28202-1904
Attention: Grady S. Carpenter, Jr.
Telephone: (704) 382-7530
Facsimile: (704) 382-9497
Electronic Mail: gcarpent@duke-energy.com
BANK ONE, N.A.
Administrative Agent's Office, L/C Issuer and Bank One, N.A., Lending
Office
-------
Bank One, N.A.
1 Bank One Plaza
15th Floor
Suite IL1-0429
Chicago, IL 60670
Attention: Brian Zimmer
Telephone: (312) 732-2169
Facsimile: (312) 732-7455
Electronic Mail: brian_j_zimmer@bankone.com
Account No.: (4811 5286 0000)
Ref: Duke Capital
ABA #071-000-013
FIRST UNION NATIONAL BANK
Credit Contact:
--------------
First Union National Bank
201 S. College St.
Charlotte, NC 28288
Attention: Mitch Wilson
Telephone: (704) 383-5642
Facsimile: (704) 383-7611
Electronic Mail:
Administrative Contact:
----------------------
First Union National Bank
201 S. College St.
Charlotte, NC 28288
Attention: Chanue Micheal
Telephone: (704) 715-1195
Facsimile: (704) 383-7999
Electronic Mail:
WESTDEUTSCHE LANDESBANK GIRONZENTRALE
Credit Contact:
--------------
1211 Avenue of the Americas
New York, NY 10036
Attention: Felicia La Forgla
Telephone: (212) 852-6323
Facsimile: (212) 852-6307
Electronic Mail:
Administrative Contact:
----------------------
1211 Avenue of the Americas
New York, NY 10036
Attention: Philip Green
Telephone: (212) 852-6323
Facsimile: (212) 302-7946
Electronic Mail:
DEUTSCHE BANK AG NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
Credit Contact:
--------------
Deutsche Bank AG New York Branch and/or
Cayman Islands Branch
31 West 52nd Street
New York, NY 10019
Attention: Joel Makowsky
Telephone: (212) 469-7896
Facsimile: (212) 469-5711
Electronic Mail: joel.makowsky@db.com
Administrative Contact:
----------------------
Deutsche Bank AG New York Branch and/or
Cayman Islands Branch
31 West 52nd Street
New York, NY 10019
Attention: Noble Samuel
Cheryl H. Mandelbaum
Telephone: (212) 250-5374
Facsimile: (212) 669-1707
Electronic Mail: noble.samuel@db.com
cheryl.mandelbaum@db.com
BAYERISCHE LANDESBANK GIROZENTRALE,
CAYMAN ISLANDS BRANCH
Credit Contact:
--------------
Bayerische Landesbank Girozentrale,
Cayman Islands Branch
560 Lexington Avenue
17th Floor
New York, NY 10022
Attention: Sean O'Sullivan
Telephone: (212) 310-9913
Facsimile: (212) 310-9868
Electronic Mail: sosullivan@baylbny.com
Administrative Contact:
----------------------
Bayerische Landesbank Girozentrale,
Cayman Islands Branch
560 Lexington Avenue
17th Floor
New York, NY 10022
Attention: Patricia Sanchez
Telephone: (212) 310-9810
Facsimile: (212) 310-9930
Electronic Mail: psanchez@baylbny.com
Attention: Carol Dussie
Telephone: (212) 310-9846
Facsimile: (212) 310-9930
Electronic Mail: cdussie@baylbny.com
ABN AMRO BANK N.V.
Credit Contact:
--------------
ABN AMRO Bank N.V.
208 South LaSalle Street
Suite 710
Chicago, IL 60604-1003
Attention: Jeffrey Dodd
Telephone: (312) 992-5110
Facsimile: (312) 992-5111
Electronic Mail:
Administrative Contact:
----------------------
ABN AMRO Bank N.V.
208 South LaSalle Street
Suite 1500
Chicago, IL 60604-1003
Attention: Loan Administration
Telephone: (312) 992-5150
Facsimile: (312) 992-5155
Electronic Mail:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
Credit Contact:
--------------
Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas, 12th Floor
New York, NY 10020-1104
Attention: Nicholas R. Battista
Telephone: (212) 782-4333
Facsimile: (212) 782-4979
Electronic Mail: nbattista@btmna.com
Attention: Bill Rhodes
Telephone: (212) 782-4580
Facsimile: (212) 782-4979
Electronic Mail: brhodes@btmna.com
Administrative Contact:
----------------------
Bank of Tokyo-Mitsubishi Trust Company
BTM Information Services, Inc.
c/o Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas, 12th Floor
New York, NY 10020-1104
Attention: Rolando Uv
Telephone: (201) 413-8570
Facsimile: (201) 521-2304
(201) 521-2305
Electronic Mail:
WACHOVIA BANK, N.A.
Credit Contact:
--------------
Wachovia Bank, N.A.
c/o Hann Pirio
191 Peachtree Street
28th Floor
Atlanta, GA 30303
Attention: Melonie Willis
Telephone: (336) 735-5618
Facsimile: (336) 735-5636
Electronic Mail:
Administrative Contact:
----------------------
Wachovia Bank, N.A.
c/o Hann Pirio
191 Peachtree Street
28th Floor
Atlanta, GA 30303
Attention: Global Corporate Servicing
Telephone:
Facsimile:
Electronic Mail:
UBS, AG, STAMFORD BRANCH
Credit Contact:
--------------
UBS AG, Stamford Branch
677 Washington Blvd.
6th Floor
Stamford, CT 06901
Attention: Jennifer Poccia
Telephone: (203) 719-3834
Facsimile: (203) 719-4176
Electronic Mail: jennifer.poccia@ubsw.com
Administrative Contact:
----------------------
UBS AG, Stamford Branch
677 Washington Blvd.
6th Floor
Stamford, CT 06901
Attention: Jennifer Poccia
Telephone: (203) 719-3834
Facsimile: (203) 719-4176
Electronic Mail: jennifer.poccia@ubsw.com
BNP PARIBAS
Credit Contact:
--------------
BNP Paribas
Project Finance & Utilities Group
787 7th Avenue
New York, NY 10019
Attention: Sean Finnegan
Telephone: (212) 841-2310
Facsimile: (212) 841-2052
Electronic Mail: sean.finnegan@americas.bnpparibas.com
Administrative Contact:
----------------------
BNP Paribas
919 Third Avenue
New York, NY 10022-1278
Attention: Tecla Hurley
Telephone: (212) 471-6651
Facsimile: (212) 471-6697
Electronic Mail: tecla.hurley@americas.bnpparibas.com
TORONTO DOMINION (TEXAS), INC.
Credit Contact:
--------------
Toronto Dominion (Texas), Inc.
31 West 52nd Street, 18th Floor
New York, NY 10016
Attention: Suzanne Eberhard
Telephone: (212) 827-7783
Facsimile: (609) 730-8575
Electronic Mail:
Administrative Contact:
----------------------
Toronto Dominion (Texas), Inc.
909 Fannin Street, 17th Floor
Houston, TX 77010
Attention: Carol Brandt
Telephone: (713) 653-8204
Facsimile: (713) 951-9921
Electronic Mail: brandc@tdusa.com
BANCA COMMERCIALE ITALIANA -
LOS ANGELES BRANCH
Credit Contact:
--------------
Banca Commerciale Italiana - Los Angeles Branch
One William Street
New York, New York 10004
Attention: Hannah Plucinski
Telephone: (212) 607-3863
Facsimile: (212) 807-2124
Electronic Mail: hplucinski@bci.it
Administrative Contact:
----------------------
Banca Commerciale Italiana - Los Angeles Branch
One William Street
New York, New York 10004
Attention: Isabella Castrogiovanni
Telephone: (212) 607-3522
Facsimile: (212) 607-3807
Electronic Mail:
Attention: Alex Papace
Telephone: (212) 607-3531
Facsimile: (212) 807-3897
Electronic Mail:
CITIBANK, N.A.
Credit Contact:
--------------
Citibank, N.A.
2 Penn's Way
Newark, DE 19720
Attention: Nick McKee
Telephone: (212) 559-1503
Facsimile: (212) 793-6130
Electronic Mail: nick.mckee@citicorp.com
Administrative Contact:
----------------------
Citibank, N.A.
2 Penn's Way
Newark, DE 19720
Attention: Tracy Pinkett
Telephone: (302) 894-6078
Facsimile: (302) 894-6120
Electronic Mail: tracy.pinkett@citicorp.com
THE INDUSTRIAL BANK OF JAPAN, LIMITED
Credit Contact:
--------------
The Industrial Bank of Japan, Limited
191 Peachtree Street N.E.
Suite 3825
Atlanta, GA 30303
Attention: Bill LaDuca
Telephone: (404) 524-8770 ext. 105
Facsimile: (404) 524-8509
Electronic Mail:
Administrative Contact:
----------------------
The Industrial Bank of Japan, Limited
1251 Avenue of the Americas
New York, NY 10020-1104
Attention: Christine Francese
Telephone: (212) 282-4097
Facsimile: (212) 282-4480
Electronic Mail:
BARCLAYS BANK PLC
Credit Contact
Barclays Capital
222 Broadway, 8th Floor
New York, NY 10038
Attention: Michael J. Brennon
Telephone: (212) 412-2851
Facsimile: (212) 412-6709
Electronic Mail:
Attention: Sydney Dennis
Telephone: (212) 412-2470
Facsimile: (212) 412-7511
Electronic Mail:
Administrative Contact:
----------------------
Barclays Group Inc. (USA)
222 Broadway, 11th Floor
New York, NY 10038
Attention: Marsha Hamlette
Telephone: (212) 412-4081
Facsimile: (212) 412-5306/5307 or 5308
Electronic Mail:
THE CHASE MANHATTAN BANK
Credit Contact:
--------------
The Chase Manhattan Bank
270 Park Avenue
23rd Floor
New York, NY 10017
Attention: Paul Farrell
Telephone: (212) 270-7653
Facsimile: (212) 270-3089
Electronic Mail: paul.v.farrell@chase.com
Administrative Contact:
----------------------
The Chase Manhattan Bank
270 Park Avenue
23rd Floor
New York, NY 10017
Attention: Lynette Lang
Telephone: (212) 552-7692
Facsimile: (212) 552-5777
Electronic Mail: lynette.lang@chase.com
BANK OF AMERICA, N.A.
Credit Contact:
--------------
Bank of America, N.A.
100 North Tryon Street
Mail Code NC1-007-16-13
Charlotte, NC 28255
Attention: Gretchen P. Burud
Telephone: (704) 386-8394
Facsimile: (704) 386-1319
Electronic Mail: gretchen.burud@bankofamerica.com
Administrative Contact:
----------------------
Bank of America, N.A.
Bank of America Plaza
901 Main Street
14th Floor, TX1-492-14-05
Dallas, TX 75202-3714
Attention: Nora J. Taylor
Telephone: (214) 209-0175
Facsimile: (214) 290-9440
Electronic Mail: nora.j.taylor@bankofamerica.com
BANCO BILBAO VIZCAYA ARGENTARIA
Credit Contact:
--------------
Banco Bilboa Vizcaya Argentaria,
New York Branch
1345 Avenue of the Americas, 45th Floor
New York, NY 10105
Attention: Manual Sanchez
Telephone: (212) 728-1511
Facsimile: (212) 333-2904
Electronic Mail:
Attention: Franceso Alvarez
Telephone: (212) 728-1634
Facsimile: (212) 333-2904
Electronic Mail:
Administrative Contact:
----------------------
Banco Bilboa Vizcaya Argentaria,
New York Branch
1345 Avenue of the Americas, 45th Floor
New York, NY 10105
Attention: Francisco Miguens
Telephone: (212) 728-1682
Facsimile: (212) 333-2926
Electronic Mail:
WESTPAC BANKING CORPORATION
Credit Contact:
--------------
Westpac Banking Corporation
575 Fifth Avenue
39th Floor
New York, NY 10017
Attention: Tony Smith
Telephone: (212) 551-1814
Facsimile: (212) 551-1995
Electronic Mail: tonysmith@westpac.com.au
Administrative Contact:
----------------------
Westpac Banking Corporation
575 Fifth Avenue
39th Floor
New York, NY 10017
Attention: Susan Wildstein
Telephone: (212) 551-1960
Facsimile: (212) 551-1998
Electronic Mail: susanwildstein@westpac.com.au
SUNTRUST BANK
Credit Contact:
--------------
SunTrust Bank
Mail Code 1929
303 Peachtree Street, 3rd Floor
Atlanta, GA 30308
Attention: Steven Newby
Telephone: (404) 658-4916
Facsimile: (404) 827-6270
Electronic Mail: steven.newby@suntrust.com
Administrative Contact:
----------------------
SunTrust Bank
Mail Code 1929
303 Peachtree Street, 3rd Floor
Atlanta, GA 30308
Attention: Roshawn Orise
Telephone: (404) 230-1939
Facsimile: (404) 575-2730
Electronic Mail: roshawn.orise@suntrust.com
Existing LCs Schedule
---------------------
None.
EXHIBIT A
NOTE
New York, New York
, 2001
------------
For value received, Duke Capital Corporation, a Delaware corporation
(the "Borrower"), promises to pay to the order of
(the "Bank"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Bank to the Borrower pursuant to the
Credit Agreement referred to below on the date specified in the Credit
Agreement. The Borrower promises to pay interest on the unpaid principal amount
of each such Loan on the dates and at the rate or rates provided for in the
Credit Agreement. All such payments of principal and interest shall be made in
lawful money of the United States in Federal or other immediately available
funds at the office of Bank One, NA, 1 Bank One Plaza, Chicago, Illinois.
All Loans made by the Bank, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Bank and,
the Bank, if the Bank so elects in connection with any transfer or enforcement
of its Note, may endorse on the schedule attached hereto appropriate notations
to evidence the foregoing information with respect to the Loans then
outstanding; provided that the failure of the Bank to make any such recordation
or endorsement shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This note is one of the Notes referred to in the 364-Day Credit
Agreement dated as of , 2001 among the Borrower, the banks listed on the
--------
signature pages thereof and Bank One, NA, as Administrative Agent (as the same
may be amended from time to time, the "Credit Agreement"). Terms defined in the
Credit Agreement are used herein with the same meanings. Reference is made to
the Credit Agreement for provisions for the prepayment hereof and the
acceleration of the maturity hereof.
DUKE CAPITAL CORPORATION
By
Title:
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
- --------------------------------------------------------------------------------
Amount of
Amount Type Principal Maturity Notation
Date of Loan of Loan Repaid Date Made By
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EXHIBIT B-1
OPINION OF GENERAL
COUNSEL OF THE BORROWER
EXHIBIT B-2
OPINION OF SPECIAL
COUNSEL FOR THE BORROWER
EXHIBIT C
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of , 200 among [ASSIGNOR] (the
---------- --
"Assignor"), [ASSIGNEE] (the "Assignee"), DUKE CAPITAL CORPORATION (the
"Company") and BANK ONE, NA, a national banking association having its principal
office in Chicago, Illinois, as Administrative Agent (the "Administrative
Agent").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the 364-Day Credit Agreement dated as of , 2001 among the
-------
Company, the Assignor and the other Banks party thereto, as Banks, and the
Administrative Agent (the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans and to issue or participate in Facility LCs in an
aggregate principal amount at any time outstanding not to exceed $ ;*
-----------
WHEREAS, Loans made to the Borrower by the Assignor under the Credit
Agreement in the aggregate principal amount of $ are outstanding at
the date hereof; ------------
WHEREAS, the Assignor holds participations in Facility LCs under the
Credit Agreement in the aggregate principal amount of $
outstanding on the date hereof; and ---------------
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $ (the "Assigned Amount"),
---------
together with a corresponding portion of its outstanding Committed Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;*
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION . Definitions. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Credit Agreement.
- --------------------------------
1 The asterisked provisions shall be appropriately revised in the event
of an assignment after the Commitment Termination Date.
SECTION . Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the principal amount of the
Committed Loans made by the Assignor outstanding at the date hereof. Upon the
execution and delivery hereof by the Assignor, the Assignee, the Company and the
Administrative Agent and the payment of the amounts specified in Section 3
required to be paid on the date hereof (i) the Assignee shall, as of the date
hereof, succeed to the rights and be obligated to perform the obligations of a
Bank under the Credit Agreement with a Commitment in an amount equal to the
Assigned Amount, and (ii) the Commitment of the Assignor shall, as of the date
hereof, be reduced by a like amount and the Assignor released from its
obligations under the Credit Agreement to the extent such obligations have been
assumed by the Assignee. The assignment provided for herein shall be without
recourse to the Assignor.
SECTION . Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them.** It is
understood that facility fees accrued to the date hereof in respect of the
Assigned Amount are for the account of the Assignor and such fees accruing from
and including the date hereof are for the account of the Assignee. Each of the
Assignor and the Assignee hereby agrees that if it receives any amount under the
Credit Agreement which is for the account of the other party hereto, it shall
receive the same for the account of such other party to the extent of such other
party's interest therein and shall promptly pay the same to such other party.
SECTION . Consent of the Borrower and the Administrative Agent. This
Agreement is conditioned upon the consent of the Borrower and the Administrative
Agent pursuant to Section 9.06(c) of the Credit Agreement. The execution of this
Agreement by the Borrower and the Administrative Agent is evidence of this
consent. Pursuant to Section 2.04(c) of the Credit Agreement the Borrower agrees
to execute and deliver a Note, if required by the Assignee, payable to the order
of the Assignee to evidence the assignment and assumption provided for herein.
SECTION . Non-reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of any
Borrower, or the validity and enforceability of the obligations of any Borrower
in respect of the Credit Agreement or any Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into
- --------------------------------
2 Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee. It may be preferable
in an appropriate case to specify these amounts generically or by formula rather
than as a fixed sum.
this Agreement and will continue to be responsible for making its own
independent appraisal of the business, affairs and financial condition of the
Borrowers.
SECTION . Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION . Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION . Administrative Questionnaire. Attached is an Administrative
Questionnaire duly completed by the Assignee.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By
Title:
[ASSIGNEE]
By
Title:
DUKE CAPITAL CORPORATION
By
Title:
BANK ONE, NA, as
Administrative Agent
By
Title:
EXHIBIT D
EXTENSION AGREEMENT
Bank One, NA, as Administrative
Agent under the Credit Agreement
referred to below
1 Bank One Plaza
Chicago, Illinois 60670
Ladies and Gentlemen:
Effective as of [date], the undersigned hereby agrees to extend its
Commitment and Commitment Termination Date under the 364-Day Credit Agreement
dated as of , 2001 among Duke Capital Corporation (the "Borrower"), the
-------
banks parties thereto and Bank One, NA, as Administrative Agent (the "Credit
Agreement") for 364 days to [date to which its Commitment Termination Date is to
be extended] pursuant to Section 2.01(c) of the Credit Agreement. Terms defined
in the Credit Agreement are used herein as therein defined.
This Extension Agreement shall be construed in accordance with and
governed by the law of the State of New York. This Extension Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
[NAME OF BANK]
By
Title:
Agreed and Accepted:
DUKE CAPITAL CORPORATION,
as Borrower
By
-----------------------------------
Title:
BANK ONE, NA,
as Administrative Agent
By
-----------------------------------
Title:
EXHIBIT E
FACILITY LC APPLICATION
Date:
------------
To: Bank One, NA, as Administrative Agent
as LC Issuer
----------------
From: Duke Capital Corporation
Re: 364-Day Credit Agreement dated as of April 19, 2001 (as amended
from time to time, the "Credit Agreement") among Duke Capital
Corporation (the "Borrower"), the Banks parties thereto and Bank One,
NA as Administrative Agent
The Borrower hereby gives notice pursuant to Section 2.16(c) of the Credit
Agreement that the Borrower requests the above-named LC Issuer to issue on or
before a Facility LC containing the terms attached hereto as
------------------
Schedule 1 (the "Requested Letter of Credit").
The Requested Letter of Credit will be subject to [UCP 500] [ISP98].
The Borrower hereby represents and warrants to the LC Issuer, the
Administrative Agent and the Banks that:
(a) ARTICLE
immediately after the issuance of the
Requested Letter of Credit the Aggregate Outstanding Credit Exposure will not
exceed the Aggregate Commitment;
(b) immediately after the issuance of the Requested Letter of Credit, no
Default shall have occurred and be continuing; and
(c) the representations and warranties contained in the Credit Agreement
(except the representations and warranties set forth in Sections
4.04(c) and 4.06 of the Credit Agreement) shall be true and correct on
and as of the date of issuance of the Requested Letter of Credit.
The Borrower hereby authorizes the LC Issuer to issue the Requested Letter
of Credit with such variations from the above terms as the LC Issuer may, in its
discretion, determine are necessary and are not materially inconsistent with
this Facility LC Application. The opening of the Requested Letter of Credit and
the Borrower's responsibilities with respect thereto are subject to [UCP 500]
[ISP98] as indicated above and the terms and conditions set forth in the Credit
Agreement.
3
Terms used herein and not otherwise defined herein have the meanings
assigned to them in the Credit Agreement.
DUKE CAPITAL CORPORATION
By:
--------------------------------
Title:
------------------------------
4
SCHEDULE 1
Please issue an Irrevocable Letter of Credit as set forth below and forward same
to the Correspondent for the LC Issuer for delivery to the Beneficiary or, at
the LC Issuer's option, forward same directly to the Beneficiary as indicated
below (by check "X").
Transmit by:
o Courier o Air Mail o Full Telex/SWIFT o Other (specify in detail): ___________
- --------------------------------------------------------------------------------
Advising Bank (Name and Address) For account of ___________ (Name and
(LC Issuer use only unless Address)
Borrower designates advising bank)
_____ _______
- --------------------------------------------------------------------------------
Phone Number (___) _________
Fax Number (___) _________
- --------------------------------------------------------------------------------
To Beneficiary (Name and Address) Amount (Figures) _____________
_____ _______
- --------------------------------------------------------------------------------
(In Words) _____________
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o +/- _______%
- --------------------------------------------------------------------------------
Expiry Date:___ At the counters of the
LC Issuer
- --------------------------------------------------------------------------------
Available against Beneficiary's draft(s) at sight drawn on the LC Issuer and
accompanied by the following document(s).
o Beneficiary's signed and dated statement stating that:____
o Automatically renewable for___ months or for ___days with a final
expiration date of ___
o Copy(ies) of Beneficiary's commercial invoice (s)
marked "unpaid": ____
o Other: ______
o The required letter of credit terms and conditions are attached.
o Special Conditions: _________
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Complete only when the Beneficiary's bank or Correspondent is to issue its
guarantee or undertaking based on the issued Letter of Credit.
o Request Beneficiary's bank to issue and deliver their____________(Specify type
of bid or performance bond, guarantee, undertaking or other)
o In favor of: Name(s) & Attention ____________
Address/Street ___________
Address/City ______ State____Country ________
Telephone ( )_________ Fax Number ( )____________
For an amount not exceeding that specified above, effective immediately and
expiring at their office on ___ (At least 30 days prior to Expiry Date above)
Cover________ .
(specify number or bid or performance bond, etc.)
- --------------------------------------------------------------------------------
Drawings (Check where applicable):
o Partial drawings prohibited
o Multiple drawings prohibited
o Tele-facsimile drawings permitted
Charges: (Unless specified, all charges will be for Borrower's account) All
banking charges other than the LC Issuer's are for
o Beneficiary
o Borrower
Please include a brief description as to the purpose of the Requested Letter of
Credit: _______________
Please issue the Requested Letter of Credit subject to: (check one)
o ISP98 or
o UCP 500. If no selection is made, the Requested Letter of Credit shall be
subject to the UCP 500.
Duke Capital
Corporation
By:
-----------------------
Title:
--------------------