Exhibit 10(a)
[EXECUTION VERSION]
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LOC 2003 TRUST
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AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF DECEMBER 22, 2004
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CREDIT SUISSE FIRST BOSTON,
ACTING THROUGH ITS CAYMAN ISLANDS BRANCH
AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT
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CO-LEAD ARRANGERS AND CO-BOOK MANAGERS
CREDIT SUISSE FIRST BOSTON,
ACTING THROUGH ITS CAYMAN ISLANDS BRANCH
AND
J.P. MORGAN SECURITIES, INC.
SYNDICATION AGENT
J.P. MORGAN SECURITIES, INC.
DOCUMENTATION AGENT
CITIBANK, N.A.
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TABLE OF CONTENTS
PAGE
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Article I
DEFINITIONS; CONSTRUCTION
SECTION 1.01. Defined Terms................................................ 1
SECTION 1.02. Terms Generally.............................................. 8
Article II
THE LETTERS OF CREDIT AND THE LOANS
SECTION 2.01. Commitments.................................................. 9
SECTION 2.02. Loans........................................................ 9
SECTION 2.03. Borrowing Procedure..........................................10
SECTION 2.04. Letters of Credit............................................10
SECTION 2.05. Fees. 13
SECTION 2.06. Repayment of Outstanding Credits; Evidence of Indebtedness...13
SECTION 2.07. Interest on Loans............................................14
SECTION 2.08. Default Interest.............................................14
SECTION 2.09. Alternate Rate of Interest...................................15
SECTION 2.10. Termination and Reduction of Commitments.....................15
SECTION 2.11. Prepayment...................................................16
SECTION 2.12. Reserve Requirements; Change in Circumstances................16
SECTION 2.13. Change in Legality...........................................18
SECTION 2.14. Pro Rata Treatment...........................................19
SECTION 2.15. Sharing of Setoffs...........................................19
SECTION 2.16. Payments.....................................................20
SECTION 2.17. Taxes........................................................20
SECTION 2.18. Assignment of Commitments Under Certain Circumstances........23
Article III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers.........................................23
SECTION 3.02. Authorization................................................23
SECTION 3.03. Enforceability...............................................24
SECTION 3.04. Security Interests...........................................24
SECTION 3.05. Governmental Approvals.......................................24
SECTION 3.06. Financial Statements.........................................24
SECTION 3.07. Litigation...................................................25
SECTION 3.08. Federal Reserve Regulations..................................25
SECTION 3.09. Investment Company Act; Public Utility Holding Company Act...25
SECTION 3.10. No Material Misstatements....................................25
SECTION 3.11. Taxes........................................................25
SECTION 3.12. Borrower Activities..........................................26
SECTION 3.13. Solvency.....................................................26
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Article IV
CONDITIONS
SECTION 4.01. Conditions for Amendment and Restatement.....................26
SECTION 4.02. Conditions for All Borrowings................................28
Article V
COVENANTS
SECTION 5.01. Existence, Preservation of Rights and Modifications of
Governing Instruments........................................28
SECTION 5.02. Performance Under Parent Facility............................28
SECTION 5.03. Compliance with Law..........................................29
SECTION 5.04. Financial Statements, Reports, Etc...........................29
SECTION 5.05. Taxes, Etc...................................................30
SECTION 5.06. Maintenance and Preparation of Records; Access to
Properties and Inspections...................................30
SECTION 5.07. Consolidated Financial Statements............................30
SECTION 5.08. Use of Proceeds..............................................30
SECTION 5.09. Consolidations, Mergers, Sales and Acquisitions of Assets,
Creation of Subsidiaries and Assignments Under the
Parent Facility..............................................30
SECTION 5.10. Limitations on Liens.........................................31
SECTION 5.11. Limitation on Activities.....................................31
SECTION 5.12. Restricted Payments..........................................31
SECTION 5.13. Maintenance of Revenue Account...............................31
SECTION 5.14. Bankruptcy...................................................31
SECTION 5.15. Commingling..................................................32
SECTION 5.16. No Guaranties or Other Debt..................................32
SECTION 5.17. Special Purpose Entity.......................................32
SECTION 5.18. Compensation of Third Parties................................32
SECTION 5.19. Allocation of Rent and Overhead..............................32
SECTION 5.20. Allocation of Costs of Officers and Employees................32
SECTION 5.21. Allocation of Costs of Joint Contracting.....................33
SECTION 5.22. Allocation of Costs of Vendors and Service Providers.........33
SECTION 5.23. Arm's-Length Transactions....................................33
SECTION 5.24. Cash Collateral..............................................33
Article VI
THE REVENUE ACCOUNT
SECTION 6.01. Establishment and Management of Revenue Account..............34
SECTION 6.02. The Revenue Account..........................................35
SECTION 6.03. Prepayments and Deposits of Funds at the
Request of the Borrower......................................37
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Article VII
EVENTS OF DEFAULT
Article VIII
THE AGENTS
SECTION 8.01. The Agents Generally.........................................39
SECTION 8.02. Replacement of Agents........................................41
SECTION 8.03. Rights and Duties of the Collateral Agent....................42
Article IX
MISCELLANEOUS
SECTION 9.01. Notices......................................................43
SECTION 9.02. Survival of Agreement........................................44
SECTION 9.03. Binding Effect...............................................44
SECTION 9.04. Successors and Assigns.......................................44
SECTION 9.05. Expenses; Indemnity..........................................47
SECTION 9.06. Limitation on Liability of the Trustee.......................48
SECTION 9.07. Right of Setoff..............................................49
SECTION 9.08. Applicable Law...............................................49
SECTION 9.09. Waivers; Amendment...........................................49
SECTION 9.10. Entire Agreement.............................................50
SECTION 9.11. Severability.................................................50
SECTION 9.12. Counterparts.................................................50
SECTION 9.13. Headings.....................................................50
SECTION 9.14. Interest Rate Limitation.....................................51
SECTION 9.15. Jurisdiction; Venue..........................................51
SECTION 9.16. Confidentiality..............................................52
SECTION 9.17. Approval of Amendments.......................................52
EXHIBITS AND SCHEDULES
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Exhibit A - Form of Borrowing Request
Exhibit B - Form of Assignment and Acceptance
Exhibit C - Form of Promissory Note
Exhibit D - Form of First Amendment to Security Agreement
Schedule 1 - Commitments
Schedule 2 - Letters of Credit
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AMENDED AND RESTATED CREDIT AGREEMENT (this "AGREEMENT"),
dated as of December 22, 2004, among LOC 2003 TRUST, a
Delaware statutory trust (the "BORROWER"), the lenders
listed in Schedule 1 (together with their successors and
assigns, the "LENDERS") and CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands branch ("CSFB"), as
administrative agent for the Lenders (in such capacity, the
"ADMINISTRATIVE AGENT") and as collateral agent for the
Lenders (in such capacity, the "COLLATERAL AGENT" and,
together with the Administrative Agent, the "AGENTS").
PRELIMINARY STATEMENT
The Lenders have previously provided a credit facility for the making of
loans to the Borrower and the issuance of letters of credit to beneficiaries
designated by the Borrower in an aggregate amount not in excess of $500,000,000.
The Lenders have agreed to amend and restate such credit facility on the terms
and conditions set forth herein, and CSFB has agreed to continue to act as
Administrative Agent and Collateral Agent under such credit facility on behalf
of the Lenders.
Accordingly, the parties hereby agree as follows.
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.01. DEFINED TERMS.
As used in this Agreement, the following terms shall have the meanings
specified below:
"ABR BORROWING" shall mean a Borrowing comprised of ABR Loans.
"ABR LOAN" shall mean any Loan bearing interest at a rate determined
by reference to the Alternate Base Rate in accordance with the provisions
of Article II or any Eurodollar Loan converted (pursuant to Section 2.09 or
2.13(a)(ii)) to a loan bearing interest at a rate determined by reference
to the Alternate Base Rate.
"ACCELERATION" shall mean the termination of the Total Commitment and
the acceleration of the maturity of the Loans (whether automatically or
upon a declaration by the Administrative Agent) pursuant to Article VII.
"ADMINISTRATION AGREEMENT" means that certain Administrative Services
Agreement, dated as of August 8, 2003, between the Borrower and the
Administrator.
"ADMINISTRATIVE AGENT" shall have the meaning given such term in the
preamble hereto.
"ADMINISTRATIVE FEES" shall have the meaning given such term in
Section 2.05(b).
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"ADMINISTRATOR" shall mean TXU Business Services Company, in its
capacity as administrator under the Administration Agreement, and its
successors and assigns.
"AFFILIATE" shall mean, when used with respect to a specified person,
another person that directly or indirectly controls or is controlled by or
is under common control with the person specified.
"AGENTS" shall have the meaning given such term in the preamble
hereto.
"AGREEMENT" shall have the meaning given such term in the preamble
hereto.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
greater of (i) the Federal Funds Effective Rate in effect on such day plus
0.50% and (ii) the Prime Rate in effect on such day. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error; provided that the Administrative Agent
shall, upon request, provide to the Borrower a certificate setting forth in
reasonable detail the basis for such determination) that it is unable to
ascertain the Federal Funds Effective Rate for any reason, including the
inability of the Administrative Agent to obtain sufficient quotations in
accordance with the terms thereof, the Alternate Base Rate shall be
determined without regard to clause (i) of the first sentence of this
definition until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.
"APPLICABLE MARGIN" shall mean, during any Collateral Period, 0.15%
per annum and, at all other times, 1.0% per annum.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee in the form of Exhibit B.
"BOARD" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"BORROWER" shall have the meaning given such term in the preamble
hereto.
"BORROWING" shall mean a group of Loans of a single Type made by one
or more of the Lenders on a single date and as to which a single Interest
Period is in effect.
"BORROWING REQUEST" shall mean a request made pursuant to Section 2.03
in the form of Exhibit A.
"BUSINESS DAY" shall mean any day (other than a day that is a
Saturday, Sunday or legal holiday in the City or State of New York) on
which banks are open for business in New York City; provided, however,
that, when used in connection with a Eurodollar Loan, the term "BUSINESS
DAY" shall also exclude any day on which banks are not open for dealings in
dollar deposits in the London interbank market.
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"CASH COLLATERAL ACCOUNT" shall have the meaning given such term in
Section 5.24.
"CASH COLLATERAL REQUIREMENT" shall mean, at any time, an amount equal
to 105% of the aggregate Outstanding Credits at such time.
A "CHANGE IN CONTROL" shall be deemed to have occurred if TXU shall
cease to be the beneficial owner of 100% of the beneficial interests in the
Borrower.
"CODE" shall mean the Internal Revenue Code of 1986, as the same may
be amended from time to time.
"COLLATERAL" shall mean all or any of the collateral pledged pursuant
to the Security Documents and Section 5.24.
"COLLATERAL AGENT" has the meaning given such term in the preamble
hereto.
"COLLATERAL LC" has the meaning given to such term in Section 5.24(a).
"COLLATERAL PERIOD" shall mean any period commencing on the date on
which the Borrower shall have provided to the Administrative Agent
Collateral pursuant to Section 5.24 and ending (but excluding) on the date
on which such Collateral shall have been surrendered pursuant to Section
5.24(b).
"COMMITMENT" shall mean, with respect to each Lender, the commitment
of such Lender in the amount set forth in Schedule 1 hereto to make Loans
and, in such Lender's capacity as an LC Bank, to issue Letters of Credit,
as such Commitment may be permanently terminated or reduced from time to
time pursuant to Section 2.10 or Article VII or modified from time to time
pursuant to Section 9.04.
"CONTROL AGREEMENT" shall mean that certain Control Agreement, dated
as of August 8, 2003 (as amended, supplemented or modified from time to
time), among The Bank of New York, the Borrower and the Collateral Agent.
"CSFB" shall have the meaning given such term in the preamble hereto.
"DEFAULT" shall mean any event or condition that upon notice, lapse of
time or both would constitute an Event of Default.
"DOLLARS" or "$" shall mean lawful money of the United States of
America.
"EURODOLLAR BORROWING" shall mean a Borrowing comprised of Eurodollar
Loans.
"EURODOLLAR LOAN" shall mean any Loan bearing interest at a rate
determined by reference to the LIBO Rate in accordance with the provisions
of Article II.
"EVENT OF DEFAULT" shall have the meaning given such term in Article
VII.
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"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
released on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so released for any day that is a
Business Day, the arithmetic average, as determined by the Administrative
Agent, of the quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"FEES" shall mean the LC Fees and the Administrative Fees.
"FINANCIAL OFFICER" shall mean any person designated by the Trust to
be responsible for managing the financial affairs of the Borrower.
"GAAP" shall mean generally accepted accounting principles, applied on
a consistent basis.
"GOVERNING INSTRUMENTS" shall mean the Trust Agreement, the
certificate of trust of the Borrower and the Administration Agreement.
"GOVERNMENTAL AUTHORITY" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"INDEBTEDNESS" of any person shall mean all indebtedness representing
money borrowed that is created, assumed, incurred or guaranteed in any
manner by such person or for which such person is responsible or liable
(whether by agreement to purchase indebtedness of, or to supply funds to or
invest in, others or otherwise).
"INTEREST PAYMENT DATE" shall mean, with respect to any Loan, the last
day of the Interest Period applicable thereto and, in the case of a
Eurodollar Loan with an Interest Period of more than three months'
duration, each day that would have been an Interest Payment Date for such
Loan had successive Interest Periods of three months' duration been
applicable to such Loan and, in addition, the date of any prepayment of
each Loan or conversion of such Loan to a Loan of a different Type.
"INTEREST PERIOD" shall mean (i) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the
numerically corresponding day (or, if there is no numerically corresponding
day, on the last day) in the calendar month that is 1, 2, 3 or 6 months
thereafter; provided that, in the case of any Eurodollar Borrowing made
during the 30 day period ending on the Maturity Date, such period may end
on the seventh or fourteenth day thereafter as the Borrower may elect, (ii)
as to any ABR Borrowing, the period commencing on the date of such
Borrowing and ending on the earliest of (A) the next succeeding March 31,
June 30, September 30 or December 31, (B) the Maturity Date and (C) the
date such Borrowing is repaid or prepaid in accordance with Section 2.06 or
Section 2.11; provided, however, that if any Interest Period would end on a
day other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless, in the case of Eurodollar Loans
only, such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next preceding
Business Day. Interest shall accrue from and including the first day of an
Interest Period to but excluding the last day of such Interest Period.
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"LC BANK" shall mean each Lender, in its capacity as issuer of any
Letter of Credit, provided, that each Lender may, in its discretion,
arrange for one or more Letters of Credit to be issued by any of its
Affiliates having credit ratings acceptable to the Borrower, in which case
the term "LC BANK" shall include any such Affiliate with respect to Letters
of Credit issued by such Affiliate.
"LC FEE" shall have the meaning given such term in Section 2.05(a).
"LC OUTSTANDINGS" shall mean, on any date of determination and with
respect to any LC Bank, the sum of (i) the undrawn stated amounts of all
Letters of Credit issued by such LC Bank that are outstanding on such date
and (ii) the aggregate principal amount of all unpaid reimbursement
obligations of the Borrower on such date with respect to payments made by
such LC Bank under Letters of Credit (excluding reimbursement obligations
that have been repaid with the proceeds of any Loan) issued by such LC
Bank.
"LC PAYMENT NOTICE" shall have the meaning given such term in Section
2.04(b).
"LENDERS" shall have the meaning given such term in the preamble
hereto.
"LETTER AGREEMENT" means that certain fee letter agreement, dated as
of August 8, 2003, between the Borrower and CSFB, as amended, modified or
supplemented from time to time.
"LETTER OF CREDIT" means a letter of credit issued by an LC Bank,
outstanding on the date hereof and listed on Schedule 2, as such letter of
credit may from time to time be amended or modified, or may have been
extended on or prior to the date hereof, each in accordance with the terms
of this Agreement.
"LIBO RATE" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, the rate appearing on Page 3750 of the Telerate
Service (or on any successor or substitute page of such service, or any
successor to or substitute for such service, providing rate quotations
comparable to those currently provided on such page of such service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period as the rate
for dollar deposits with a maturity comparable to such Interest Period. In
the event that such rate is not available at such time for any reason, then
the "LIBO RATE" with respect to such Eurodollar Borrowing for such Interest
Period shall be the rate at which dollar deposits of $5,000,000 and for a
maturity comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available funds in
the London interbank market at approximately 11:00 a.m. London time, two
Business Days prior to the commencement of such Interest Period.
6
"LIEN" shall mean, 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, any person shall be deemed
to own subject to a Lien any asset that it has acquired or holds subject to
the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"LOAN DOCUMENT" shall mean this Agreement, any promissory notes
executed and delivered pursuant to Section 2.06(e) and the Security
Documents.
"LOANS" shall mean the revolving loans made pursuant to Sections 2.03
and 2.04. Each Loan shall be a Eurodollar Loan or an ABR Loan.
"MARGIN REGULATIONS" shall mean Regulations T, U and X of the Board as
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"MARGIN STOCK" shall have the meaning given such term under Regulation
U of the Board.
"MATERIAL ADVERSE CHANGE" shall mean a materially adverse change in
the business, assets, operations or financial condition of the Borrower
that makes the Borrower unable to perform any of its obligations under this
Agreement or that impairs the rights of, or benefits available to, the
Lenders or any LC Bank under any Loan Document.
"MATURITY DATE" shall mean the earlier to occur of (i) December 31,
2005 and (ii) the date of termination or reduction in whole of the
Commitments pursuant to Section 2.10 or Article VII.
"MOODY'S" shall mean Moody's Investors Service, Inc.
"OUTSTANDING CREDITS" mean, on any date of determination and with
respect to any Lender, an amount equal to (i) the aggregate principal
amount of all Loans of such Lender outstanding on such date plus (ii) the
LC Outstandings of such Lender on such date.
"PARENT FACILITY" means the Credit Agreement, dated August 8, 2003,
between the Borrower and TXU, as amended, supplemented and modified from
time to time in accordance with the terms thereof and hereof.
"PERCENTAGE" means, for any Lender on any date of determination, the
percentage obtained by dividing such Lender's Commitment on such date by
the Total Commitment on such date.
"PERSON" shall mean any natural person, corporation, statutory trust,
joint venture, association, company, limited liability company, partnership
or government, or any agency or political subdivision thereof.
7
"PRIME RATE" shall mean the rate of interest per annum announced from
time to time by the Administrative Agent as its base rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective on the date such change is announced as effective.-
"REGISTER" shall have the meaning given such term in Section 9.04(d).
"REQUIRED LENDERS" shall mean, at any time, Lenders having Commitments
representing in excess of 50% of the Total Commitment, or, if the Total
Commitment at such time has been terminated, Lenders holding Outstanding
Credits representing in excess of 50% of the aggregate Outstanding Credits
of all Lenders.
"RESPONSIBLE OFFICER" shall mean the Administrator or the Trustee.
"RESTATEMENT DATE" shall have the meaning given such term in Section
4.01(a).
"RESTRICTED PAYMENT" shall mean (i) any direct or indirect
distribution, dividend or payment to any person on account of any
beneficial interest in the Borrower, (ii) any payment on account of the
purchase, redemption, or other acquisition or retirement of any beneficial
interest in the Borrower and (iii) any payment of management, consulting or
other fees by the Borrower to TXU or any Affiliate of TXU.
"REVENUE ACCOUNT" shall have the meaning given such term in Section
6.01(a).
"S&P" shall mean Standard & Poor's Ratings Services (a division of The
McGraw-Hill Companies, Inc.).
"SECURED PARTIES" shall have the meaning assigned to such term in the
Security Agreement.
"SECURITY AGREEMENT" shall mean that certain Security Agreement, dated
as of August 8, 2003 (as amended, supplemented or modified from time to
time), made by the Borrower in favor of the Collateral Agent for the
benefit of the secured parties named therein.
"SECURITY DOCUMENTS" shall mean the Security Agreement and the Control
Agreement.
"SOLVENT" means, with respect to any person as of a particular date,
that on such date (i) the assets, at a fair valuation, of such person will
exceed its debts; (ii) such person has not incurred and does not intend to
incur, and does not believe that it will incur, debts beyond its ability to
pay such debts as such debts mature; and (iii) such person will have
sufficient capital with which to conduct its business. For purposes of this
definition, "DEBT" means any liability on a claim, and "CLAIM" means (A)
right to payment from such person, whether or not such a right is reduced
to judgment against such person, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (B) right to an equitable remedy for breach of
performance by such person if such breach gives rise to a payment from such
person, whether or not such right to an equitable remedy is reduced to
8
judgment against such person, whether fixed, contingent, matured,
unmatured, disputed, undisputed, secured or unsecured. The amount of
unliquidated, contingent, unmatured or disputed liabilities of any person
at any time shall be computed as the amount that, in the light of all the
facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.
"SUBSIDIARY" shall mean, with respect to any person (the "PARENT"),
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 parent.
"TOTAL COMMITMENT" shall mean, at any time, the aggregate amount of
Commitments of all the Lenders, as in effect at such time.
"TOTAL LC OUTSTANDINGS" shall mean, on any date of determination, the
aggregate amount of LC Outstandings of all the LC Banks on such date.
"TRUST AGREEMENT" shall mean the Trust Agreement (LOC 2003 Trust),
dated as of July 28, 2003, as amended, modified and supplemented from time
to time, between Wilmington Trust Company, as trustee, and TXU, as
beneficial owner.
"TRUSTEE" shall mean Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely in its capacity as
trustee under the Governing Instruments, and its successors and assigns.
"TRUSTEE FEE LETTER" shall mean the Fee and Indemnity Agreement, dated
as of July 28, 2003, between the Borrower and Wilmington Trust Company.
"TXU" shall mean TXU Corp., a Texas corporation, and its successors.
"TYPE", when used with respect to any Loan or Borrowing, shall refer
to the rate (LIBO Rate or Alternate Base Rate) by reference to which
interest on such Loan or on the Loans comprising such Borrowing is
determined.
"WACHOVIA" shall mean Wachovia Bank, National Association.
SECTION 1.02. TERMS GENERALLY.
The definitions in Section 1.01 shall apply equally to both the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include", "includes" and "including" shall be deemed to be followed
by the phrase "without limitation." All references herein to Articles, Sections,
Exhibits and Schedules shall be deemed references to Articles and Sections of,
and Exhibits and Schedules to, this Agreement unless the context shall otherwise
require. Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time.
9
ARTICLE II
THE LETTERS OF CREDIT AND THE LOANS
SECTION 2.01. COMMITMENTS.
Each LC Bank has prior to the Restatement Date issued Letters of Credit for
the account of the Borrower in the amounts and with the expiration dates
specified on Schedule 2. Subject to the terms and conditions and relying upon
the representations and warranties herein set forth, each Lender agrees,
severally and not jointly, to make Loans to the Borrower at any time prior to
the Maturity Date to finance and re-finance the Borrower's reimbursement
obligations in respect of drawings under such Letters of Credit, as required
pursuant to Section 2.04(b) or as permitted pursuant to Sections 2.02(d) and
2.03, in an aggregate principal amount at any time outstanding not to exceed
such Lender's Commitment. Once repaid hereunder, Loans may not be reborrowed,
other than pursuant to Section 2.02(d), and no Letter of Credit may be extended
or may be modified to increase the stated amount thereof.
SECTION 2.02. LOANS.
(a) Each Loan shall be made as part of a Borrowing consisting of Loans made
by the Lenders ratably in accordance with their respective Percentages;
provided, however, that the failure of any Lender to make any Loan shall not in
itself relieve any other Lender of its obligation to lend hereunder (it being
understood, however, that no Lender shall be responsible for the failure of any
other Lender to make any Loan required to be made by such other Lender). Each
Loan shall be made in accordance with the procedures set forth in Section 2.03.
The Loan or Loans comprising any Borrowing shall be in an aggregate principal
amount that is an integral multiple of $5,000,000 and not less than $25,000,000
(or an aggregate principal amount at least equal to (x) the remaining balance of
the available Commitments or (y) the amount of the Borrower's reimbursement
obligations being financed or refinanced thereby).
(b) Each Borrowing shall be comprised entirely of Eurodollar Loans or ABR
Loans (except as otherwise required by Section 2.13(a)(i)), as the Borrower may
request pursuant to Section 2.03. Each Lender may at its option make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement. Borrowings of more than one Type may be outstanding at
the same time, but no more than seven Eurodollar Borrowings may be outstanding
at any time.
(c) If and to the extent that any Lender shall not have made its portion of
any Borrowing available to the Administrative Agent, such Lender and the
Borrower (without waiving any claim against such Lender for such Lender's
failure to make such portion available) 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, the interest rate applicable at the time to the
Loans comprising such Borrowing and (ii) in the case of such Lender, the Federal
Funds Effective Rate for the first three days and at the Alternate Base Rate,
thereafter. If such Lender shall repay to the Administrative Agent such
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corresponding amount, such amount shall constitute such Lender's Loan as part of
such Borrowing for purposes of this Agreement.
(d) The Borrower may refinance all or any part of any Borrowing with a
Borrowing of the same or a different Type, subject to the conditions and
limitations set forth in this Agreement. Any Borrowing or part thereof so
refinanced shall be deemed to be repaid or prepaid in accordance with Section
2.06 or 2.11, as applicable, with the proceeds of a new Borrowing, and the
proceeds of the new Borrowing, to the extent they do not exceed the principal
amount of the Borrowing being refinanced, shall not be paid by the Lenders to
the Administrative Agent or by the Administrative Agent to the Borrower pursuant
to subsection (c) above.
SECTION 2.03. BORROWING PROCEDURE.
In order to request a Borrowing to refinance Loans made under Section
2.04(b) or to refinance any such Borrowing, the Borrower shall provide the
Administrative Agent, via hand delivery, telecopy or telephone (promptly
confirmed via telecopy), a duly completed Borrowing Request in the form of
Exhibit A (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m.,
New York City time, three Business Days before such Borrowing, and (b) in the
case of an ABR Borrowing, not later than 11:00 a.m., New York City time, one
Business Day before such Borrowing. Such notice shall be irrevocable and shall
in each case specify (i) whether the Borrowing then being requested is to be a
Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which
shall be a Business Day) and the amount thereof; and (iii) if such Borrowing is
to be a Eurodollar Borrowing, the Interest Period with respect thereto, which
shall not end after the Maturity Date. If no election as to the Type of
Borrowing is specified in any such notice, then the requested Borrowing shall be
an ABR Borrowing. If no Interest Period with respect to any Eurodollar Borrowing
is specified in any such notice, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration (subject to the limitations
set forth in the definition of "Interest Period"). If the Borrower shall not
have given notice in accordance with this Section 2.03 of its election to
refinance a Borrowing prior to the end of the Interest Period in effect for such
Borrowing, then the Borrower shall (unless such Borrowing is repaid at the end
of such Interest Period) be deemed to have given notice of an election to
refinance such Borrowing with an ABR Borrowing. Notwithstanding any other
provision of this Agreement to the contrary, no Borrowing shall be requested if
the Interest Period with respect thereto would end after the Maturity Date. The
Administrative Agent shall promptly advise the Lenders of any notice given
pursuant to this Section 2.03 and of each Lender's portion of the requested
Borrowing.
SECTION 2.04. LETTERS OF CREDIT
(a) The Borrower hereby agrees to pay to each LC Bank on each date on which
such LC Bank shall pay any amount under any Letter of Credit issued by such LC
Bank a sum equal to the amount so paid plus interest on such amount from the
date so paid by such LC Bank until repayment to such LC Bank in full at a
fluctuating interest rate per annum equal to the Alternate Base Rate. If and to
the extent that (x) any Lender shall have funded its participation pursuant to
subsection (b) below in any reimbursement obligation of the Borrower under this
subsection (a) and (y) the amount paid by such Lender to fund such participation
shall constitute an ABR Loan pursuant to subsection (b) below, then the
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corresponding reimbursement obligation of the Borrower to the LC Bank under this
subsection (a) shall be deemed to be satisfied.
(b) Each LC Bank hereby grants to each Lender, and each Lender hereby
acquires from each LC Bank, a participation in each Letter of Credit issued by
such LC Bank equal to such Lender's Percentage of the stated amount of such
Letter of Credit. In consideration and in furtherance of the foregoing, if any
LC Bank shall not have been reimbursed in full by the Borrower for any payment
made by such LC Bank under a Letter of Credit on the date of such payment, such
LC Bank shall give the Administrative Agent and each Lender prompt notice
thereof (an "LC PAYMENT NOTICE") no later than 12:00 noon (New York City time)
on the Business Day immediately succeeding the date of such payment by such LC
Bank. Notwithstanding any provision of this Agreement to the contrary, each
Lender severally agrees to fund its participation in the reimbursement
obligation of the Borrower to each LC Bank by paying to the Administrative Agent
for the account of such LC Bank an amount equal to such Lender's Percentage of
such unreimbursed amount paid by such LC Bank, plus interest on such amount at a
rate per annum equal to the Federal Funds Effective Rate from the date of the
payment by such LC Bank to the date of payment to such LC Bank by such Lender.
Each such payment by a Lender shall be made not later than 3:00 p.m. (New York
City time) on the later to occur of (i) the Business Day immediately following
the date of such payment by such LC Bank and (ii) the Business Day on which the
Lender shall have received an LC Payment Notice from such LC Bank. Each Lender's
obligation to make each such payment to the Administrative Agent for the account
of each LC Bank shall be several and shall not be affected by the occurrence or
continuance of a Default or Event of Default or the failure of any other Lender
to make any payment under this subsection (b). Each Lender further agrees that
each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. If at any time prior to the Maturity Date any Lender shall
pay to the Administrative Agent any amount pursuant to this subsection (b) for
the account of any LC Bank in respect of the reimbursement obligations of the
Borrower in respect of any drawing under any Letter of Credit, such amount so
paid in respect of the principal amount of such reimbursement obligations shall,
until repaid or refinanced as part of a Eurodollar Borrowing pursuant to Section
2.02(d), constitute an ABR Loan made by such Lender for all purposes of this
Agreement, and all such ABR Loans made by the Lenders in respect of such
reimbursement obligations shall constitute an ABR Borrowing for all purposes of
this Agreement.
(c) The failure of any Lender to make any payment to the Administrative
Agent for the account of any LC Bank in accordance with subsection (b) above
shall not relieve any other Lender of its own obligation to make any similar
payment to the Administrative Agent, but no Lender shall be responsible for the
failure of any other Lender to make any such payment. If any Lender (a
"NON-PERFORMING LENDER") shall fail to make any payment to the Administrative
Agent for the account of any LC Bank in accordance with subsection (b) above
within five Business Days after the LC Payment Notice relating thereto, then,
for so long as such failure shall continue, for purposes of voting rights
hereunder, (i) such LC Bank shall be deemed to be a Lender hereunder owed an ABR
Loan and the Borrower's corresponding reimbursement obligation shall be deemed
to be satisfied and having a Commitment in an amount equal to the outstanding
principal amount due and payable by such non-performing Lender to the
Administrative Agent for the account of such LC Bank pursuant to subsection (b)
above and (ii) the Commitment of such non-performing Lender shall be reduced in
an amount equal to such outstanding principal amount due and payable by such
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non-performing Lender. Any non-performing Lender and the Borrower (without
waiving any claim against such Lender for such Lender's failure to fund a
participation in the reimbursement obligations of the Borrower under subsection
(b) above) severally agree to pay to the Administrative Agent for the account of
the applicable LC Bank forthwith on demand such amount, together with interest
thereon for each day from the date such Lender would have funded its
participation had it complied with the requirements of subsection (b) above
until the date such amount is paid to the Administrative Agent at a fluctuating
interest rate per annum equal to (A) in the case of such Borrower, the Alternate
Base Rate and (B) in the case of such Lender, the Federal Funds Effective Rate.
Interest at the rate prescribed in Section 2.08 shall not be due from the
Borrower with respect to any amount payable by the Borrower pursuant to the
preceding sentence unless and until the Borrower fails to comply with the
preceding sentence.
(d) The payment obligations of each Lender under subsection (b) above and
of the Borrower under this Agreement in respect of any payment under any Letter
of Credit shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including
the following circumstances:
(i) any lack of validity or enforceability of any Loan Document
or any other agreement or instrument relating hereto or to such Letter
of Credit;
(ii) any amendment or waiver of, or any consent to departure
from, the terms of any Loan Document or such Letter of Credit;
(iii) the existence of any claim, set-off, defense or other right
that the Borrower may have at any time against any beneficiary, or any
transferee, of such Letter of Credit (or any persons for whom any such
beneficiary or any such transferee may be acting), the LC Bank that
issued such Letter of Credit, or any other person, whether in
connection with this Agreement, the transactions contemplated hereby
or by such Letter of Credit, or any unrelated transaction;
(iv) any statement or any other document presented under such
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(v) payment in good faith by such LC Bank under the Letter of
Credit against presentation of a draft or certificate that does not
comply with the terms of such Letter of Credit; or
(vi) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing.
(e) The Borrower assumes all risks of the acts and omissions of any
beneficiary or transferee of any Letter of Credit. No LC Bank or Lender nor any
of their respective officers, directors, employees, agents or Affiliates shall
be liable or responsible for (i) the use that may be made of such Letter of
Credit or any acts or omissions of any beneficiary or transferee thereof in
connection therewith; (ii) the validity, sufficiency or genuineness of
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documents, or of any endorsement thereon, even if such documents should prove to
be in any or all respects invalid, insufficient, fraudulent or forged; (iii)
payment by any LC Bank against presentation of documents that do not comply with
the terms of such Letter of Credit, including failure of any documents to bear
any reference or adequate reference to such Letter of Credit; or (iv) any other
circumstances whatsoever in making or failing to make payment under such Letter
of Credit, except that the Borrower shall have the right to bring suit against
such LC Bank, and such LC Bank shall be liable to the Borrower, to the extent of
any direct, as opposed to consequential, damages suffered by the Borrower that
the Borrower proves were caused by such LC Bank's willful misconduct or gross
negligence, including, in the case of the Borrower, such LC Bank's willful
failure to make timely payment under such Letter of Credit following the
presentation to it by the beneficiary thereof of a draft and accompanying
certificate(s) that strictly comply with the terms and conditions of such Letter
of Credit. In furtherance and not in limitation of the foregoing, each LC Bank
may accept sight drafts and accompanying certificates presented under any Letter
of Credit issued by such LC Bank that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary, and payment against such documents shall not
constitute willful misconduct or gross negligence by such LC Bank.
SECTION 2.05. FEES.
(a) The Borrower agrees to pay the Administrative Agent for the account of
each Lender on the last Business Day of each March, June, September and
December, a fee (the "LC FEE") equal to such Lender's Percentage of, during any
Collateral Period, 0.15% and, at any other time, 1.0% of the daily average face
amounts of all Letters of Credit issued and outstanding during the period from
and including, in the case of such payment to be made on December 31, 2004, the
Restatement Date, and, in the case of each other payment, the preceding payment
date, to and excluding the date of such other payment. All LC Fees shall be
computed on the basis of the actual number of days elapsed in a year of 360
days.
(b) The Borrower agrees to pay the Administrative Agent and the Collateral
Agent, for their own accounts, the administrative and collateral agency fees
provided for in the Letter Agreement (the "ADMINISTRATIVE FEES").
(c) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders and the LC Banks. Once paid, none of the Fees shall be
refundable under any circumstances.
SECTION 2.06. REPAYMENT OF OUTSTANDING CREDITS; EVIDENCE OF INDEBTEDNESS.
(a) The outstanding principal balance of each (i) Eurodollar Loan shall be
due and payable on the last day of the Interest Period applicable thereto and on
the Maturity Date and (ii) ABR Loan shall be due and payable on the Maturity
Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness to such Lender (and to such
Lender in its capacity as an LC Bank) resulting from each Loan made by such
Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement.
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(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Letter of Credit issued and each Loan made
hereunder, the Type of each Loan made and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder, (iii) the
amount of any Fees due and payable or to become due and payable from the
Borrower to each Lender, and (iv) the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender's and LC Bank's
share thereof.
(d) The entries made in the accounts maintained pursuant to subsections (b)
and (c) of this Section 2.06 shall, to the extent permitted by applicable law,
be prima facie evidence of the existence and amounts of the obligations therein
recorded; provided, however, that the failure of any Lender or LC Bank or the
Administrative Agent to maintain such accounts or any error therein shall not in
any manner affect the obligations of the Borrower to repay the Outstanding
Credits in accordance with their terms.
(e) Any Lender may request that any Loans made by it and the Borrower's
reimbursement obligations in respect of Letters of Credit issued by it be
evidenced by one or more promissory notes substantially in the form of Exhibit
C. In such event, the Borrower shall execute and deliver to such Lender one or
more notes payable to the order of such Lender and in a form approved by the
Administrative Agent. Thereafter, the Loans evidenced by such notes and interest
thereon shall at all times (including after assignment pursuant to Section 9.04)
be represented by one or more notes in such form payable to the order of the
payee named therein.
SECTION 2.07. INTEREST ON LOANS.
(a) Subject to the provisions of Section 2.08, the Loans comprising each
Eurodollar Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to the
LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Margin from time to time in effect.
(b) Subject to the provisions of Section 2.08, the Loans comprising each
ABR Borrowing shall bear interest (computed on the basis of the actual number of
days elapsed over a year of (i) 365 or 366 days, as the case may be, for periods
during which the Alternate Base Rate is determined by reference to the Prime
Rate and (ii) 360 days for other periods) at a rate per annum equal to the
Alternate Base Rate.
(c) Interest on each Loan shall be payable on each Interest Payment Date
applicable to such Loan except as otherwise provided in this Agreement. The
applicable LIBO Rate or Alternate Base Rate for each Interest Period or day
within an Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error; provided that the Administrative Agent shall, upon request, provide to
the Borrower a certificate setting forth in reasonable detail the basis for such
determination.
SECTION 2.08. DEFAULT INTEREST.
If the Borrower shall default in the payment of the principal of or
interest on any Loan, or of any Letter of Credit reimbursement obligation or
interest thereon, or any other amount becoming due hereunder, whether by
scheduled maturity, notice of prepayment, acceleration or otherwise, the
15
Borrower shall on demand from time to time from the Administrative Agent pay
interest, to the extent permitted by law, on such defaulted amount up to (but
not including) the date of actual payment (after as well as before judgment) at
a rate per annum (computed as provided in Section 2.07(b)) equal to the
Alternate Base Rate plus 2%.
SECTION 2.09. ALTERNATE RATE OF INTEREST.
In the event, and on each occasion, that on the day two Business Days prior
to the commencement of any Interest Period for a Eurodollar Borrowing the
Administrative Agent shall have determined (i) that dollar deposits in the
principal amounts of the Eurodollar Loans comprising such Borrowing are not
generally available in the London interbank market or (ii) that reasonable means
do not exist for ascertaining the LIBO Rate, the Administrative Agent shall, as
soon as practicable thereafter, give telecopy notice of such determination to
the Borrower and the Lenders. In the event of any such determination under
clause (i) or (ii) above, until the Administrative Agent shall have advised the
Borrower and the Lenders that the circumstances giving rise to such notice no
longer exist, any request by the Borrower for a Eurodollar Borrowing pursuant to
Section 2.03 shall be deemed to be a request for an ABR Borrowing. In the event
the Required Lenders notify the Administrative Agent that the rates at which
dollar deposits are being offered will not adequately and fairly reflect the
cost to such Lenders of making or maintaining Eurodollar Loans during such
Interest Period, the Administrative Agent shall notify the Borrower of such
notice, and until the Required Lenders shall have advised the Administrative
Agent that the circumstances giving rise to such notice no longer exist, any
request by the Borrower for a Eurodollar Borrowing shall be deemed a request for
an ABR Borrowing. Each determination by the Administrative Agent hereunder shall
be made in good faith and shall be conclusive absent manifest error; provided
that the Administrative Agent, shall, upon request, provide to the Borrower a
certificate setting forth in reasonable detail the basis for such determination.
SECTION 2.10. TERMINATION AND REDUCTION OF COMMITMENTS.
(a) The Commitments shall be automatically terminated on the Maturity Date.
(b) Upon at least two Business Days' prior irrevocable written notice to
the Administrative Agent, the Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Total
Commitment; provided, however, that (i) each partial reduction of the Total
Commitment shall be in an integral multiple of $10,000,000 and in a minimum
principal amount of $10,000,000 and (ii) no such termination or reduction shall
be made that would reduce the Commitment of any Lender to an amount less than
(A) the aggregate amount of Outstanding Credits of such Lender on the date of
such termination or reduction (after giving effect to any prepayment made on
such date pursuant to Section 2.11), or (B) $50,000,000, unless the result of
such termination or reduction referred to in this clause (B) is to reduce the
Total Commitment to $0. The Administrative Agent shall advise the Lenders of any
notice given pursuant to this Section 2.10(b) and of each Lender's portion of
any such termination or reduction of the Total Commitment. Each reduction in the
Total Commitment under this subsection (b) shall be made ratably among the
Lenders in accordance with their respective Percentages.
16
(c) On each day on which the Commitment (as defined in the Parent Facility)
is reduced, the Total Commitment shall automatically and permanently reduce by
an amount equal to such reduction. Each reduction in the Total Commitment under
this subsection (c) shall be made ratably among the Lenders in accordance with
their respective Percentages.
(d) If on any date the Total Commitment shall exceed the Outstanding
Credits, the Total Commitment shall automatically and permanently be reduced by
an amount equal to such excess.
SECTION 2.11. PREPAYMENT.
(a) The Borrower shall have the right at any time and from time to time to
prepay any Borrowing, in whole or in part, upon giving telecopy notice (or
telephone notice promptly confirmed by telecopy) to the Administrative Agent:
(i) before 11:00 a.m., New York City time, three Business Days prior to
prepayment, in the case of Eurodollar Loans, and (ii) before 11:00 a.m., New
York City time, one Business Day prior to prepayment, in the case of ABR Loans;
provided, however, that each partial prepayment shall be in an amount that is an
integral multiple of $10,000,000 and not less than $10,000,000. Each Borrowing
that is prepaid shall be prepaid ratably in accordance with each Lender's
percentage of the outstanding principal amount of such Borrowing.
(b) On the date of any termination or reduction of the Commitments pursuant
to Section 2.10, the Borrower shall, by delivering sufficient funds to the
Collateral Agent for application in accordance with Section 6.03, pay or prepay
so much of the Borrowings in an amount as shall be necessary in order that the
Outstanding Credits of each Lender shall not exceed the amount of such Lender's
Commitment.
(c) On the date of any ABR Borrowing, the Borrower shall prepay any other
ABR Borrowing that is outstanding on such date, subject, however, to the rights
of the Borrower to refinance such outstanding ABR Borrowing pursuant to Section
2.02(d).
(d) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing (or portion
thereof) by the amount stated therein on the date stated therein. All
prepayments under this Section 2.11 shall be subject to Section 9.05(b)(ii) but
otherwise shall be made without premium or penalty. All prepayments under this
Section 2.11 shall be accompanied by accrued interest on the principal amount
being prepaid to the date of payment.
SECTION 2.12. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES.
(a) Notwithstanding any other provision herein, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall change the basis of taxation of payments to any Lender or any LC Bank
hereunder (except for changes in respect of taxes on the overall net income of
such Lender or LC Bank (as the case may be) or its lending office imposed by the
17
jurisdiction in which such Lender's or LC Bank's (as the case may be) principal
executive office or lending office is located), or shall result in the
imposition, modification or applicability of any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of or
credit extended by any Lender or any LC Bank, or shall result in the imposition
on any Lender, any LC Bank or the London interbank market of any other condition
affecting this Agreement, such Lender's Commitment, any Letter of Credit or any
Loan (other than an ABR Loan) made by such Lender, and the result of any of the
foregoing shall be to increase the cost to such Lender or LC Bank (as the case
may be) of maintaining any Letter of Credit or making or maintaining any Loan
(other than an ABR Loan) or to reduce the amount of any sum received or
receivable by such Lender or LC Bank (as the case may be) hereunder (whether of
principal, interest or otherwise) by an amount deemed by such Lender or LC Bank
(as the case may be) to be material, then the Borrower shall, upon receipt of
the notice and certificate provided for in Section 2.12(c), promptly pay to such
Lender or LC Bank (as the case may be) such additional amount or amounts as will
compensate such Lender or LC Bank (as the case may be) for such additional costs
incurred or reduction suffered.
(b) If any Lender or any LC Bank shall have determined that the adoption of
any law, rule, regulation or guideline arising out of the July 1988 report of
the Basle Committee on Banking Regulations and Supervisory Practices entitled
"International Convergence of Capital Measurement and Capital Standards," or the
adoption after the date hereof of any other law, rule, regulation or guideline
regarding capital adequacy, or any change in any of the foregoing or in the
interpretation or administration of any of the foregoing by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender or any LC Bank (or any
lending office of such Lender or LC Bank) or any Lender's or any LC Bank's
holding company with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Lender's or LC Bank's (as the case may be) capital or on the capital of
such Lender's or LC Bank's (as the case may be) holding company, if any, as a
consequence of this Agreement, such Lender's Commitment or the Loans made by
such Lender or the Letters of Credit issued by such LC Bank (as the case may be)
pursuant hereto to a level below that which such Lender or LC Bank (as the case
may be) or such Lender's or LC Bank's (as the case may be) holding company could
have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or LC Bank's (as the case may be) policies and the
policies of such Lender's or LC Bank's (as the case may be) holding company with
respect to capital adequacy) by an amount deemed by such Lender or LC Bank (as
the case may be) to be material, then from time to time such additional amount
or amounts as will compensate such Lender or LC Bank (as the case may be) for
any such reduction suffered will be paid by the Borrower to such Lender or LC
Bank (as the case may be).
(c) A certificate of each Lender or LC Bank setting forth such amount or
amounts as shall be necessary to compensate such Lender or LC Bank (as the case
may be) or its holding company as specified in subsection (a) or (b) above, as
the case may be, and containing an explanation in reasonable detail of the
manner in which such amount or amounts shall have been determined, shall be
delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay each Lender or LC Bank (as the case may be) the amount shown
as due on any such certificate delivered by it within 10 days after its receipt
of the same. Each Lender and each LC Bank shall give prompt notice to the
18
Borrower of any event of which it has knowledge, occurring after the date
hereof, that it has determined will require compensation by the Borrower
pursuant to this Section; provided, however, that failure by such Lender or LC
Bank to give such notice shall not constitute a waiver of such Lender's or LC
Bank's (as the case may be) right to demand compensation hereunder.
(d) Failure on the part of any Lender or any LC Bank to demand compensation
for any increased costs or reduction in amounts received or receivable or
reduction in return on capital with respect to any period shall not constitute a
waiver of such Lender's or LC Bank's (as the case may be) right to demand
compensation with respect to such period or any other period; provided, however,
that no Lender or LC Bank shall be entitled to compensation under this Section
2.12 for any costs incurred or reductions suffered with respect to any date
unless it shall have notified the Borrower that it will demand compensation for
such costs or reductions under subsection (c) above not more than 90 days after
the later of (i) such date and (ii) the date on which it shall have become aware
of such costs or reductions. The protection of this Section shall be available
to each Lender and each LC Bank regardless of any possible contention of the
invalidity or inapplicability of the law, rule, regulation, guideline or other
change or condition that shall have occurred or been imposed.
(e) Each Lender and LC Bank agrees that it will designate a different
lending office if such designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the reasonable judgment of such Lender or
LC Bank (as the case may be), be disadvantageous to such Lender or LC Bank (as
the case may be).
SECTION 2.13. CHANGE IN LEGALITY.
(a) Notwithstanding any other provision herein, if any change in any law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made by
such Lender hereunder, whereupon any request for a Eurodollar
Borrowing shall, as to such Lender only, be deemed a request for an
ABR Loan unless such declaration shall be subsequently withdrawn (any
Lender delivering such a declaration hereby agreeing to withdraw such
declaration promptly upon determining that such event of illegality no
longer exists); and
(ii) require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall
be automatically converted to ABR Loans as of the effective date of
such notice as provided in subsection (b) below.
In the event any Lender shall exercise its rights under paragraph (i) or (ii)
above, all payments and prepayments of principal that would otherwise have been
applied to repay the Eurodollar Loans that would have been made by such Lender
19
or the converted Eurodollar Loans of such Lender shall instead be applied to
repay the ABR Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurodollar Loans.
(b) For purposes of this Section 2.13, a notice by any Lender shall be
effective as to each Eurodollar Loan, if lawful, on the last day of the Interest
Period currently applicable to such Eurodollar Loan; in all other cases such
notice shall be effective on the date of receipt.
SECTION 2.14. PRO RATA TREATMENT.
Except as provided elsewhere in this Agreement with respect to the
reimbursement of draws under Letters of Credit and except as required under
Sections 2.11(a), 2.15, 2.18, 6.03 and 9.13, each Borrowing, each payment or
prepayment of principal of any Borrowing, each payment of interest on the Loans,
each reduction of the Commitments and each refinancing or conversion of any
Borrowing with a Borrowing of any Type, shall be allocated pro rata among the
Lenders in accordance with their respective Commitments (or, if such Commitments
shall have expired or been terminated, in accordance with the respective
principal amounts of their outstanding Loans or LC Outstandings, as applicable).
Each payment of principal of any Borrowing shall be allocated pro rata among the
Lenders participating in such Borrowing in accordance with the respective
principal amounts of their outstanding Loans comprising such Borrowing. Each
payment of interest on any Borrowing shall be allocated pro rata among the
Lenders participating in such Borrowing in accordance with the respective
amounts of accrued and unpaid interest on their outstanding Loans comprising
such Borrowing. Each Lender agrees that in computing such Lender's portion of
any Borrowing to be made hereunder, the Administrative Agent may, in its
discretion, round each Lender's share of such Borrowing to the next higher or
lower whole dollar amount.
SECTION 2.15. SHARING OF SETOFFS.
Each Lender agrees that if it shall, through the exercise of a right of
banker's lien, setoff or counterclaim, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Bankruptcy Code or other security
or interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, obtain payment (voluntary or involuntary) in
respect of any Outstanding Credits, as a result of which the unpaid portion of
its Outstanding Credits shall be proportionately less than the unpaid portion of
the Outstanding Credits of any other Lender, it shall be deemed simultaneously
to have purchased from such other Lender at face value, and shall promptly pay
to such other Lender the purchase price for, a participation in the Outstanding
Credits of such other Lender, so that the aggregate unpaid amount of the
Outstanding Credits and participations in the Outstanding Credits held by each
Lender shall be in the same proportion to the aggregate unpaid amount of all
Outstanding Credits then outstanding as the amount of its Outstanding Credits
prior to such exercise of banker's lien, setoff or counterclaim or other event
was to the amount of all Outstanding Credits outstanding prior to such exercise
of banker's lien, setoff or counterclaim or other event; provided, however,
that, if any such purchase or purchases or adjustments shall be made pursuant to
this Section 2.15 and the payment giving rise thereto shall thereafter be
recovered, such purchase or purchases or adjustments shall be rescinded to the
extent of such recovery and the purchase price or prices or adjustment restored
without interest. The Borrower expressly consents to the foregoing arrangements
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and agrees that any Lender holding a participation in Outstanding Credits deemed
to have been so purchased may exercise any and all rights of banker's lien,
setoff or counterclaim with respect to any and all moneys owing by the Borrower
to such Lender by reason thereof as fully as if such Lender had made a Loan in
the amount of such participation.
SECTION 2.16. PAYMENTS.
(a) The Borrower shall make each payment (including Letter of Credit
reimbursement obligations, principal of or interest on any Loan or any Fees or
other amounts) hereunder from an account in the United States not later than
12:00 noon, New York City time, on the date when due in dollars to the
Collateral Agent at its offices at Eleven Madison Avenue, Mail Stop OMA-02, New
York, New York 10010-3629, Attention: Christopher Kim/Agency Group (facsimile:
(212) 325-8304) in immediately available funds. Each such payment shall be made
without off-set, deduction or counterclaim, provided, that the foregoing shall
not constitute a relinquishment or waiver of the Borrower's rights to any
independent claim that the Borrower may have against either Agent, any LC Bank
or any Lender.
(b) Except as otherwise provided in this Agreement, whenever any payment
(including any reimbursement obligation in respect of any Letter of Credit or
principal of or interest on any Loan or any Fees or other amounts) hereunder
shall become due, or otherwise would occur, on a day that is not a Business Day,
such payment may be made on the next succeeding Business Day, and such extension
of time shall in such case be included in the computation of interest or Fees,
if applicable.
SECTION 2.17. TAXES.
(a) Any and all payments of principal and interest on any of the
Outstanding Credits, or of any Fees or indemnity or expense reimbursements by
the Borrower hereunder ("BORROWER PAYMENTS") shall be made, in accordance with
Section 2.16, free and clear of and without deduction for any and all current or
future United States Federal, state and local taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect to such
Borrower Payments, but only to the extent reasonably attributable to such
Borrower Payments, excluding (i) income taxes imposed on the net income of the
Agents, any LC Bank or any Lender (or any transferee or assignee thereof,
including a participation holder (any such entity a "TRANSFEREE")) and (ii)
franchise taxes imposed on the net income of the Agents, any LC Bank or any
Lender (or Transferee), in each case by the jurisdiction under the laws of which
the Administrative Agent, any LC Bank or such Lender (or Transferee) is
organized or doing business through offices or branches located therein, or any
political subdivision thereof (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities, collectively or individually,
"TAXES"). If the Borrower shall be required to deduct any Taxes from or in
respect of any sum payable hereunder to any Lender (or any Transferee), the
Agents or LC Bank, (i) the sum payable shall be increased by the amount (an
"ADDITIONAL AMOUNT") necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.17) such Lender (or Transferee), Agent or LC Bank (as the case may be) shall
receive an amount equal to the sum it would have received had no such deductions
been made, (ii) the Borrower shall make such deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
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(b) In addition, the Borrower shall pay to the relevant United States
Governmental Authority in accordance with applicable law any current or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Letter Agreement or any other Loan Document ("OTHER TAXES").
(c) The Borrower shall indemnify each Lender (or Transferee thereof), each
Agent and each LC Bank for the full amount of Taxes and Other Taxes with respect
to Borrower Payments paid by such person, and any liability (including
penalties, interest and expenses (including reasonable attorney's fees and
expenses)) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted by the relevant United States
Governmental Authority. A certificate setting forth and containing an
explanation in reasonable detail of the manner in which such amount shall have
been determined and the amount of such payment or liability prepared by a Lender
or an LC Bank, or the Administrative Agent on their behalf, absent manifest
error, shall be final, conclusive and binding for all purposes. Such
indemnification shall be made within 30 days after the date an Lender (or
Transferee), Agent or LC Bank, as the case may be, makes written demand
therefor.
(d) If any Lender (or Transferee), Agent or LC Bank shall become aware that
it is entitled to claim a refund from a United States Governmental Authority in
respect of Taxes or Other Taxes as to which it has been indemnified by the
Borrower, or with respect to which the Borrower has paid additional amounts,
pursuant to this Section 2.17, it shall promptly notify the Borrower of the
availability of such refund claim and shall, within 30 days after receipt of a
request by the Borrower, make a claim to such United States Governmental
Authority for such refund at the Borrower's expense. If any Lender (or
Transferee), Agent or LC Bank receives a refund (including pursuant to a claim
for refund made pursuant to the preceding sentence) in respect of any Taxes or
Other Taxes as to which it has been indemnified by the Borrower or with respect
to which the Borrower had paid additional amounts pursuant to this Section 2.17,
it shall within 30 days from the date of such receipt pay over such refund to
the Borrower (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section 2.17 with respect to the Taxes
or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of
such Lender (or Transferee), Agent or LC Bank and without interest (other than
interest paid by the relevant United States Governmental Authority with respect
to such refund); provided, however, that the Borrower, upon the request of such
Lender (or Transferee), Agent or LC Bank, agrees to repay the amount paid over
to the Borrower (plus penalties, interest or other charges) to such Lender (or
Transferee), Agent or LC Bank in the event such Lender (or Transferee), Agent or
LC Bank is required to repay such refund to such United States Governmental
Authority.
(e) As soon as practicable, but in any event within 30 days, after the date
of any payment of Taxes or Other Taxes by the Borrower to the relevant United
States Governmental Authority, the Borrower will deliver to the Administrative
Agent, at its address referred to in Section 9.01, the original or a certified
copy of a receipt issued by such United States Governmental Authority evidencing
payment thereof.
(f) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.17 shall
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survive the payment in full of the principal of and interest on all Loans and
reimbursement obligations hereunder and the termination or expiry of all Letters
of Credit.
(g) Each Agent, LC Bank and Lender (or Transferee) that is organized under
the laws of a jurisdiction other than the United States, any State thereof or
the District of Columbia (a "NON-U.S. LENDER" or "NON U.S. AGENT", as
applicable) shall deliver to the Borrower and the Administrative Agent two
copies of either United States Internal Revenue Service Form W-8BEN or Form
W-8ECI, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or reduced rate of, United States Federal withholding
tax on payments by the Borrower under this Agreement. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a party to
this Agreement (or, in the case of a Transferee that is a participation holder,
on or before the date such participation holder becomes a Transferee hereunder)
and on or before the date, if any, such Non-U.S. Lender changes its applicable
lending office by designating a different lending office (a "NEW LENDING
OFFICE"). In addition, each Non-U.S. Lender shall deliver such forms promptly
upon the obsolescence or invalidity of any form previously delivered by such
Non-U.S. Lender. Notwithstanding any other provision of this Section 2.17(g), a
Non-U.S. Lender shall not be required to deliver any form pursuant to this
Section 2.17(g) that such Non-U.S. Lender is not legally able to deliver.
(h) The Borrower shall not be required to indemnify any Non-U.S. Lender or
Non-U.S. Agent (including any Transferee), or to pay any additional amounts to
any Non-U.S. Lender or Non-U.S. Agent (including any Transferee), in respect of
United States Federal, state or local withholding tax pursuant to subsection (a)
or (c) above to the extent that (i) the obligation to withhold amounts with
respect to United States Federal, state or local withholding tax existed on the
date such Non-U.S. Lender became a party to this Agreement (or, in the case of a
Transferee that is a participation holder, on the date such participation holder
became a Transferee hereunder) or, with respect to payments to a New Lending
Office, the date such Non-U.S. Lender designated such New Lending Office with
respect to any Loan; provided, however, that this clause (i) shall not apply to
any Transferee or New Lending Office that becomes a Transferee or New Lending
Office as a result of an assignment, participation, transfer or designation made
at the request of the Borrower; and provided further, however, that this clause
(i) shall not apply to the extent the indemnity payment or additional amounts
any Transferee, LC Bank or Lender (or Transferee) through a New Lending Office,
would be entitled to receive (without regard to this clause (i)) do not exceed
the indemnity payment or additional amounts that the person making the
assignment, participation or transfer to such Transferee, LC Bank or Lender (or
Transferee) making the designation of such New Lending Office, would have been
entitled to receive in the absence of such assignment, participation, transfer
or designation or (ii) the obligation to pay such additional amounts or such
indemnity payments would not have arisen but for a failure by such Non-U.S.
Lender (including any Transferee) to comply with the provisions of subsections
(g) above and (i) below.
(i) Any LC Bank or Lender (or Transferee) claiming any indemnity payment or
additional amounts payable pursuant to this Section 2.17 shall use reasonable
efforts (consistent with legal and regulatory restrictions) to file any
certificate or document reasonably requested in writing by the Borrower or to
change the jurisdiction of its applicable lending office if the making of such a
filing or change would avoid the need for or reduce the amount of any such
indemnity payment or additional amounts that may thereafter accrue and would
not, in the good faith determination of such LC Bank or Lender (or Transferee)
23
(as the case may be), be otherwise disadvantageous to such LC Bank or Lender (or
Transferee) (as the case may be).
(j) Nothing contained in this Section 2.17 shall require any Lender (or
Transferee), Agent or LC Bank to make available to the Borrower any of its tax
returns (or any other information) that it deems to be confidential or
proprietary.
SECTION 2.18. ASSIGNMENT OF COMMITMENTS UNDER CERTAIN CIRCUMSTANCES.
In the event that any Lender or LC Bank shall have delivered a notice or
certificate pursuant to Section 2.12 or 2.13, or the Borrower shall be required
to make additional payments to any Lender or LC Bank under Section 2.17, the
Borrower shall have the right, at its own expense, upon notice to such Lender or
LC Bank (as the case may be) and the Administrative Agent, to require such
Lender or LC Bank (as the case may be) to transfer and assign without recourse
(in accordance with and subject to the restrictions contained in Section 9.04)
all such Lender's or LC Bank's (as the case may be) interests, rights and
obligations contained hereunder to another financial institution approved by the
Administrative Agent and the Borrower (which approval shall not be unreasonably
withheld) which shall assume such obligations; provided that (i) no such
assignment shall conflict with any law, rule or regulation or order of any
Governmental Authority and (ii) the assignee shall pay to the affected Lender or
LC Bank (as the case may be) in immediately available funds on the date of such
assignment the principal of and interest accrued to the date of payment on the
Loans made by it hereunder and all other amounts (including, without limitation,
reimbursement obligations in respect of Letters of Credit) accrued for its
account or owed to it hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each Agent, Lender and LC Bank as
follows:
SECTION 3.01. ORGANIZATION; POWERS.
The Borrower (i) is a statutory trust duly created, validly existing and in
good standing under the laws of the State of Delaware, (ii) has all requisite
trust power and authority to own its property and assets and to carry on its
business as now conducted and as proposed to be conducted, (iii) is qualified to
do business in every jurisdiction where such qualification is required, except
where the failure so to qualify would not result in a Material Adverse Change,
and (iv) has all requisite trust power and authority to execute and deliver the
Loan Documents, to perform its obligations under the Loan Documents and to
request and receive Loans and Letters of Credit hereunder.
SECTION 3.02. AUTHORIZATION.
The execution, delivery and performance by the Borrower of the Loan
Documents and the Loans and reimbursement obligations of the Borrower hereunder
(i) have been duly authorized by all requisite trust action and (ii) will not
(A) violate (x) any provision of any law, statute, rule or regulation
(including, without limitation, the Margin Regulations) or of the Governing
Instruments, (y) any order of any Governmental Authority or (z) any provision of
24
any indenture, agreement or other instrument to which the Borrower is a party or
by which it or any of its property is or may be bound, (B) be in conflict with,
result in a breach of or constitute (alone or with notice or lapse of time or
both) a default under any such indenture, agreement or other instrument or (C)
result in the creation or imposition of any Lien upon any property or assets of
the Borrower, other than pursuant to Section 5.24 and the Security Documents.
SECTION 3.03. ENFORCEABILITY.
Each Loan Document constitutes a legal, valid and binding obligation of the
Borrower enforceable in accordance with its terms except to the extent that
enforcement may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors' rights generally.
SECTION 3.04. SECURITY INTERESTS.
Each Security Document creates a valid and first priority Lien in the
Collateral described therein that exists and all filings and other actions
necessary to perfect and protect such Liens have been taken.
SECTION 3.05. GOVERNMENTAL APPROVALS.
No action, consent or approval of, registration or filing with or other
action by any Governmental Authority is or will be required in connection with
the execution, delivery and performance by the Borrower of any Loan Document as
of the date hereof and, after the date hereof, such actions, consents,
approvals, registrations, filings and other actions that will be (A) duly
obtained, (B) maintained in full force and effect and (C) sufficient for their
respective purposes.
SECTION 3.06. FINANCIAL STATEMENTS.
(a) When delivered pursuant to Section 5.04(a), the balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of each fiscal year of
the Borrower and the related statements of income, retained earnings and cash
flows for the fiscal year then ended, reported on by Deloitte & Touche LLP or
another nationally recognized accounting firm will fairly present, in conformity
with GAAP, the financial position of the Borrower as of such dates and the
results of operations and cash flows for the periods ending on such dates. When
delivered pursuant to Section 5.04(b), the unaudited balance sheet of the
Borrower as of the end of each fiscal quarter (other than any fiscal quarter
that ends at the end of a fiscal year) and the related consolidated statements
of income and cash flows for the three-, six- or nine- (as applicable) month
period ending on such date, certified by a Financial Officer of the Borrower,
will fairly present (subject to year-end adjustments), in conformity with GAAP,
the financial position of the Borrower as of such dates and its results of
operations and cash flows for the periods ending on such dates.
(b) Since August 8, 2003, there has been no Material Adverse Change.
25
SECTION 3.07. LITIGATION.
There is no action, suit or proceeding pending against, or to the knowledge
of the Borrower, threatened against or affecting, the Borrower before any court
or arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision that could materially adversely
affect the ability of the Borrower to pay its obligations hereunder or that in
any manner draws into question the validity of any Loan Document.
SECTION 3.08. FEDERAL RESERVE REGULATIONS.
(a) The Borrower is not engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying Margin Stock.
(b) No part of the proceeds of any Letter of Credit or Loan will be used by
the Borrower, whether directly or indirectly, and whether immediately,
incidentally or ultimately, to purchase or carry Margin Stock or to refund
indebtedness originally incurred for such purpose, or for any other purpose that
entails a violation of, or that is inconsistent with, the provisions of the
Margin Regulations.
(c) Not more than 25% of the value of the assets of the Borrower subject to
the restrictions of Sections 5.09 and 5.10 are represented by Margin Stock.
SECTION 3.09. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY ACT.
(a) The Borrower is not an "investment company" as defined in, or subject
to regulation under, the Investment Company Act of 1940.
(b) The Borrower is exempt from all provisions of the Public Utility
Holding Company Act of 1935 and rules and regulations thereunder, except for
Sections 9(a)(2) and 33 of such Act and the rules and regulations thereunder,
and the execution and delivery by the Borrower of the Loan Documents and its
performance of the obligations thereunder do not violate any provision of such
Act or any rule or regulation thereunder.
SECTION 3.10. NO MATERIAL MISSTATEMENTS.
No report, financial statement or other written information furnished by or
on behalf of the Borrower to the Agents or any Lender pursuant to or in
connection with the Loan Documents contains or will contain any material
misstatement of fact or omits or will omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were or will be made, not misleading.
SECTION 3.11. TAXES.
The Borrower has filed or caused to be filed within 3 days of the date on
which due, all material Federal, state and local tax returns that to its
knowledge are required to be filed by it, and has paid or caused to be paid all
material taxes shown to be due and payable on such returns or on any assessments
received by them, other than any taxes or assessments the validity of which is
26
being contested in good faith by appropriate proceedings and with respect to
which appropriate accounting reserves have to the extent required by GAAP been
set aside.
SECTION 3.12. BORROWER ACTIVITIES.
The Borrower has no assets or liabilities, and at no time prior to the date
hereof has had, any assets or liabilities other than its rights in the
Collateral, its rights and obligations under the Loan Documents, the Trust
Agreement, the Administration Agreement, the Letter Agreement, the Trustee Fee
Letter and the Parent Facility and ordinary expenses relating to the
administration of its rights and obligations under the Loan Documents, the Trust
Agreement, the Administration Agreement, the Letter Agreement, the Trustee Fee
Letter and the Parent Facility; the Borrower does not engage in, and no time
prior to the date hereof has engaged in, any activity or business other than
those activities and the businesses directly related to the performance of its
obligations and the exercise of its rights under the Loan Documents and the
Parent Facility.
SECTION 3.13. SOLVENCY
As of the date hereof, and after giving effect to the transactions
contemplated by the Loan Documents and the Parent Facility, the Borrower is
Solvent.
ARTICLE IV
CONDITIONS
SECTION 4.01. CONDITIONS FOR AMENDMENT AND RESTATEMENT.
The effectiveness of the amendment and restatement evidenced by this
Agreement is subject to the satisfaction of the following conditions:
(a) The Administrative Agent shall have received the following documents,
each dated (except as specified below) the date hereof (the "RESTATEMENT DATE"),
in form and substance reasonably satisfactory to the Administrative Agent and in
sufficient copies for each Lender:
(i) A counterpart to this Agreement executed by each Lender, each
LC Bank and the Borrower.
(ii) Fully executed counterparts of the Parent Facility, as
amended and restated as of the Restatement Date.
(iii) Fully executed counterparts of an amendment to the Security
Agreement, in the form of Exhibit D.
(iv) Fully executed counterparts of documents evidencing
termination of, and release of the security interests granted pursuant
to, each Pledge and Control Agreement, dated as of August 8, 2003,
made by the Borrower in favor of Credit Suisse First Boston, as
collateral agent for the benefit of the secured parties named therein.
27
(v) Fully executed counterparts of documents evidencing
termination of the control of accounts numbered 217048, 217047 and
217046 described in and effected by that certain Control Agreement,
dated August 8, 2003, among The Bank of New York, the Borrower and
Credit Suisse First Boston, as collateral agent.
(vi) A certificate of a Responsible Officer certifying (A) that
attached thereto are true and complete copies of the Governing
Instruments as in effect on the Restatement Date, (B) that the Trust
Agreement authorizes the execution and delivery by the Borrower of the
Loan Documents, the Loans to be made hereunder and the performance by
the Borrower of all of its obligations under the Loan Documents and
(C) that the Governing Instruments referred to in clause (A) above
have not been amended since the date of the last such amendment
attached to such certificate.
(vii) A certificate of a Responsible Officer stating that (A) no
action, consent or approval of, registration or filing with or other
action by any Governmental Authority is or will be required in
connection with the execution, delivery and performance by the
Borrower of the Loan Documents, (B) the representations and warranties
set forth in Article III hereof are true and correct in all material
respect as of the Restatement Date and (C) no Event of Default or
Default has occurred and is continuing on the Restatement Date.
(viii) A certificate of a duly authorized officer of the Trustee
as to (A) the incumbency and specimen signature of each officer of the
Trustee executing each Loan Document and any other document to be
delivered in connection therewith by the Trustee on its own behalf or
on behalf of the Borrower, as applicable, (B) the organizational
status, existence and good standing of the Trustee, and (C) the
accuracy and completeness of copies of resolutions attached to such
certificate authorizing the execution and delivery by the Trustee of
the Loan Documents on behalf of the Borrower and all other documents
to be delivered in connection therewith by the Trustee on its own
behalf or on behalf of the Borrower.
(ix) Favorable written legal opinions of (i) (A) David P. Poole,
Senior Vice President and Associate General Counsel of TXU Business
Services Company, (B) Thelen Reid & Priest LLP, special New York
counsel to the Borrower, and (C) Richards Layton & Finger, P.A.,
special Delaware counsel to the Borrower and the Trustee, and (ii)
King & Spalding LLP, special New York counsel to the Administrative
Agent, in each case dated the Restatement Date, addressed to the
Administrative Agent, the LC Banks and the Lenders and in form and
substance satisfactory to the Administrative Agent.
(b) The Agents shall have received such other approvals, opinions,
certificates, instruments and documents as the Agents, any LC Bank or any Lender
may have reasonably requested, in form satisfactory to the Agents and the
requesting LC Bank or Lender (if applicable).
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SECTION 4.02. CONDITIONS FOR ALL BORROWINGS.
The obligation of each Lender to make each Loan as part of any Borrowing
made on or after the Restatement Date (other than pursuant to Section 2.04(b))
shall be subject to the satisfaction of the following conditions precedent on
the date of such Borrowing:
(a) The Administrative Agent shall have received from the Borrower a notice
requesting such Borrowing as required by Section 2.03.
(b) In the case of any Eurodollar Borrowing, the representations and
warranties of the Borrower set forth in Article III hereof other than the
representations and warranties set forth in Sections 3.06(b) and 3.07) shall be
true and correct in all material respects on and as of the date of such
Borrowing with the same effect as though made on and as of such date, except to
the extent such representations and warranties expressly relate to an earlier
date.
(c) In the case of any Eurodollar Borrowing, at the time of and immediately
after such Loan, no Default or Event of Default shall have occurred and be
continuing or would result from the making of each Loan as part of such
Borrowing.
(d) In the case of any Eurodollar Borrowing, the Administrative Agent shall
have received a certificate of a Responsible Officer certifying that the matters
set forth in subsections (b) and (c) of this Section 4.02 are true and correct
as of such date.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Lender has any Commitment
hereunder or any amount payable hereunder remains unpaid:
SECTION 5.01. EXISTENCE, PRESERVATION OF RIGHTS AND MODIFICATIONS OF
GOVERNING INSTRUMENTS.
It (i) will do or cause to be done all things necessary to preserve and
keep in full force and effect its existence and all rights, licenses, permits,
franchises and authorizations necessary or desirable in the normal conduct of
its business, (ii) will not modify, amend or revoke any Governing Instrument,
other than modifications or amendments that relate solely to the ministerial
provisions of the applicable Governing Instrument and that do not affect the
rights of the Secured Parties.
SECTION 5.02. PERFORMANCE UNDER PARENT FACILITY.
It will duly perform all its obligations and diligently and promptly
enforce all its rights under the Parent Facility and will not modify or waive
any provision of the documents evidencing the Parent Facility without the prior
written consent of the Lenders, which consent will not be unreasonably withheld
or conditioned upon the payment of any fee to the Lenders; provided, however,
that if (i) the "Commitment" under the Parent Facility shall have been
terminated and all loans, interest and other amounts then due and payable by TXU
under the Parent Facility shall have been paid in full, (ii) no Default or Event
29
of Default shall have occurred and be continuing, and (iii) the Total Commitment
shall have been terminated, the Borrower may release TXU from all of its
obligations under the Parent Facility including those that, by their terms,
would survive the termination of such "Commitment" and the payment of such
amounts.
SECTION 5.03. COMPLIANCE WITH LAW.
It will comply with all applicable material laws, rules, regulations and
orders of any Governmental Authority, whether now in effect or hereafter
enacted, except where the validity or applicability of such laws, rules,
regulations or orders is being contested by appropriate proceedings in good
faith.
SECTION 5.04. FINANCIAL STATEMENTS, REPORTS, ETC.
The Borrower will furnish to the Agents and each Lender:
(a) as soon as available and in any event within 120 days after the end of
each fiscal year of the Borrower, an audited balance sheet of the Borrower as of
the end of such fiscal year and the related statements of income, retained
earnings and cash flows for such fiscal year, (i) setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on by
Deloitte & Touche LLP or other independent public accountants of nationally
recognized standing and (ii) showing the assets, liabilities and income of the
Borrower as separate and distinct from that of TXU and any other Subsidiary of
TXU;
(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 balance
sheet of the as of the end of such quarter and the related statements of income
for such quarter, for the portion of the Borrower's fiscal year ended at the end
of such quarter, and for the twelve months ended at the end of such quarter, and
the related statement of cash flows for the portion of the Borrower's fiscal
year ended at the end of such quarter, (i) setting forth comparative figures for
previous dates and periods, all certified (subject to normal year-end
adjustments) as to fairness of presentation, GAAP and consistency by a Financial
Officer of the Borrower and (ii) showing the assets, liabilities and income of
the Borrower as separate and distinct from that of TXU and any other Subsidiary
of TXU;
(c) simultaneously with any delivery of each set of financial statements
referred to in subsections (a) and (b) above, a certificate of a Financial
Officer of the Borrower (i) stating whether any Default or Event of Default
exists on the date of such certificate and, if any Default or Event of Default
then exists, setting forth the details thereof and the action that the Borrower
is taking or proposes to take with respect thereto and (ii) certifying that such
financial statements were prepared in accordance with GAAP, consistently
applied;
(d) forthwith upon becoming aware of the occurrence of any Default or Event
of Default, a certificate of a Responsible Officer setting forth the details
thereof and the action that the Borrower is taking or proposes to take with
respect thereto; and
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(e) promptly, from time to time, such additional information regarding the
financial position or business of the Borrower as any Agent, at the request of
any Lender or LC Bank, may reasonably request.
SECTION 5.05. TAXES, ETC.
It will (i) elect to be disregarded for Federal income tax purposes and
(ii) pay and discharge promptly when due all material taxes, assessments and
governmental charges imposed upon it or upon its income or profits or in respect
of its property, as well as all other material liabilities, in each case before
the same shall become delinquent or in default and before penalties accrue
thereon, unless and to the extent that the same are being contested in good
faith by appropriate proceedings and adequate reserves with respect thereto
shall, to the extent required by GAAP, have been set aside.
SECTION 5.06. MAINTENANCE AND PREPARATION OF RECORDS; ACCESS TO PROPERTIES
AND INSPECTIONS.
It will (i) maintain financial records in accordance with GAAP (and in it
properly account for all contributions of capital from TXU), separate and
distinct from the financial records of TXU and any other Subsidiary of TXU and
otherwise in a manner that will not render it difficult or costly to segregate,
ascertain and otherwise identify the assets of the Borrower, (ii) pay the cost
of the maintenance of its financial records and the preparation of its financial
reports from its own assets; and (iii) upon reasonable notice and at reasonable
times, permit authorized representatives designated by any Agent, Lender or LC
Bank to visit and inspect its properties, books and records and to discuss its
affairs, finances and condition with the Trustee or its officers.
SECTION 5.07. CONSOLIDATED FINANCIAL STATEMENTS.
If the financial statements of the Borrower are consolidated with the
financial statements of any other person, the Borrower will ensure that such
financial statements will contain a narrative description of the assets,
liabilities, business functions, operations and existence of the Borrower to
ensure that such separate assets, liabilities, business functions, operations
and existence are readily distinguishable by any person receiving or relying on
such consolidated financial statements (including, without limitation, any
creditor of TXU or any other Subsidiary of TXU).
SECTION 5.08. USE OF PROCEEDS.
It will not use the proceeds of the Letters of Credit or the Loans for
purposes other than to satisfy the obligations of the Borrower under the Parent
Facility to make loans to TXU and arrange for the issuance of letters of credit.
SECTION 5.09. CONSOLIDATIONS, MERGERS, SALES AND ACQUISITIONS OF ASSETS,
CREATION OF SUBSIDIARIES AND ASSIGNMENTS UNDER THE PARENT
FACILITY.
It will not (i) consolidate or merge with or into any person, (ii) make any
disposition of its assets, other than in compliance with the Security Documents,
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as permitted under Section 5.12 or in order to pay operating expenses pursuant
to Article VI, (iii) create, acquire or suffer to exist any Subsidiary of the
Borrower or acquire any assets of or make any investments in any other person,
other than pursuant to the Parent Facility, or (iv) assign, transfer or grant
any participation in its rights and obligations under the Parent Facility, other
than pursuant to the Security Agreement.
SECTION 5.10. LIMITATIONS ON LIENS.
It will not create or assume or permit to exist any Lien in respect of any
property or assets of any kind (real or personal, tangible or intangible) of the
Borrower, other than (i) such Liens granted pursuant to Section 5.24 and the
Security Documents and (ii) such Liens being contested in any commercially
reasonable manner by the Borrower on or with respect to such property or assets
where the claim underlying such Lien is not in excess of $2,000,000; provided
that no such contest shall continue beyond the date that is 30 days from the
date of the incurrence or creation of such Lien.
SECTION 5.11. LIMITATION ON ACTIVITIES.
It will at all times maintain itself as a special purpose entity and will
not engage in any activity other than entering into, and exercising its rights
and performing its obligations under, the Loan Documents, the Letter Agreement,
the Trustee Fee Letter, the Parent Facility and the Governing Instruments.
SECTION 5.12. RESTRICTED PAYMENTS.
It will not directly or indirectly declare or make any Restricted Payment;
provided, however, that (i) the Borrower may make Restricted Payments no more
than once in each fiscal quarter of the Borrower during the ten-day period
following the delivery of the financial statements and certificates described in
Sections 5.04(a), (b) and (c) if no Default or Event of Default has occurred and
is continuing or would result from the making of such Restricted Payment
(including, without limitation, any Default or Event of Default resulting from
the Borrower's failure to reimburse any LC Bank for any drawing under any Letter
of Credit on the date of such drawing) and (ii) the Borrower may make Restricted
Payments from the funds described in clause THIRD of Section 6.03; provided, in
the case of clause (i) above, a Responsible Officer shall have delivered a
certificate to the Collateral Agent stating that the applicable requirements
described above have been satisfied.
SECTION 5.13. MAINTENANCE OF REVENUE ACCOUNT.
It will at all times maintain the Revenue Account with the Administrative
Agent and will not maintain any other bank, deposit, investment or brokerage
account, other than the Cash Collateral Account.
SECTION 5.14. BANKRUPTCY.
It will not institute any proceeding seeking to adjudicate it bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts under any law
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relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seek the entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any of its assets, or make a
general assignment for the benefit of creditors, unless the Trustee has
determined that the Borrower is not Solvent, based upon written advice from
nationally-recognized bankruptcy counsel.
SECTION 5.15. COMMINGLING.
It will not commingle any of its assets, funds, liabilities or business
functions with the assets, funds, liabilities or business functions of TXU or
any other Subsidiary of TXU, and it will pay its own liabilities, losses and
expenses only from its own funds.
SECTION 5.16. NO GUARANTIES OR OTHER DEBT.
Other than as contemplated by the arrangement of letters of credit under
the Parent Facility, it will not (i) guaranty or become obligated for the debts
or obligations of any other person or (ii) acquire or assume the obligations of
TXU or any other Subsidiary of TXU or otherwise incur any Indebtedness.
SECTION 5.17. SPECIAL PURPOSE ENTITY.
It will hold itself out as a special purpose entity, separate and distinct
from each other person, including, without limitation, TXU and its other
Subsidiaries, and, as soon as reasonably practicable, will correct any known
misunderstanding regarding its separate identity; without limiting the
foregoing, it will use separate stationery and other printed materials bearing
its own name and will not identify itself as a division or department of TXU or
any other Subsidiary of TXU.
SECTION 5.18. COMPENSATION OF THIRD PARTIES.
It will compensate all consultants, independent contractors, accountants,
trustees, lawyers and agents from its own funds for services provided to it by
such persons.
SECTION 5.19. ALLOCATION OF RENT AND OVERHEAD.
If the Borrower and TXU or any other Subsidiary of TXU occupy any premises
in the same location, the Borrower will allocate fairly, reasonably,
appropriately and nonarbitrarily among such persons any rent and overhead
expenses, such that each such person bears its reasonable and fair share of such
rent and expenses.
SECTION 5.20. ALLOCATION OF COSTS OF OFFICERS AND EMPLOYEES.
If the Borrower and TXU or any other Subsidiary of TXU share the same
officers or other employees, the Borrower will allocate fairly, reasonably,
appropriately and nonarbitrarily among such persons any salary and benefit costs
associated therewith, such that each such person bears its reasonable and fair
share of such costs.
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SECTION 5.21. ALLOCATION OF COSTS OF JOINT CONTRACTING.
If the Borrower and TXU or any other Subsidiary of TXU jointly contract or
do business with vendors or service providers, the Borrower will allocate
fairly, reasonably, appropriately and nonarbitrarily among such persons any
costs and expenses of doing so, such that each such person bears its reasonable
and fair share of such costs and expenses.
SECTION 5.22. ALLOCATION OF COSTS OF VENDORS AND SERVICE PROVIDERS.
If the Borrower contracts or does business with vendors or service
providers where the goods or services are wholly or partially for the benefit of
TXU or another Subsidiary of TXU, the Borrower will allocate fairly, reasonably,
appropriately and nonarbitrarily among such persons any costs and expenses in
doing so to the person for whose benefit such goods and services are provided,
such that each such person bears its reasonable and fair share of such costs and
expenses.
SECTION 5.23. ARM'S-LENGTH TRANSACTIONS.
It will enter into transactions with TXU and any other Subsidiary of TXU
only (i) on a commercially reasonable and arm's-length basis, and (ii) if such
transaction is documented in writing; provided, however, that the parties to
this Agreement acknowledge that the transactions contemplated by the Parent
Facility (including, without limitation, the Trust Agreement and the
Administration Agreement) satisfy the foregoing requirements as of the date
hereof.
SECTION 5.24. CASH COLLATERAL.
(a) If the Commitments shall not have been terminated in full or any Lender
shall have any Outstanding Credits on January 14, 2005, or at any time an Event
of Default shall have occurred and be continuing, the Borrower shall immediately
deposit cash in an account maintained by or on behalf of the Administrative
Agent (the "CASH COLLATERAL ACCOUNT") in an amount equal to the Cash Collateral
Requirement. Subject to subsection (b) below, the Cash Collateral Account shall
be maintained, at all times after January 14, 2005 and at all times after an
Event of Default shall have occurred and be continuing, until the termination of
the Commitments, the expiry or termination of all Letters of Credit and the
payment in full of all amounts payable by the Borrower hereunder, with or on
behalf of the Administrative Agent in the name of, and under the sole dominion
and control of, the Administrative Agent, and amounts deposited in the Cash
Collateral Account shall bear interest at a rate equal to the rate generally
offered by the depositary with respect to the Cash Collateral Account for
deposits equal to the amount deposited by the Borrower in the Cash Collateral
Account, for a term to be determined by the Administrative Agent, in its
reasonable discretion. The Borrower hereby grants to the Administrative Agent
for the benefit of the Lenders a Lien in and hereby assigns to the
Administrative Agent for the benefit of the Lenders all of its right, title and
interest in, the Cash Collateral Account and all funds from time to time on
deposit therein to secure its obligations to the Lenders hereunder. If any
amount payable hereunder by the Borrower to any Lender or LC Bank is not paid
when due, the Administrative Agent shall apply the amounts then on deposit in
the Cash Collateral Account toward the payment in full of such amount. Upon
payment in full of all obligations of the Borrower hereunder and the termination
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of the Commitments and all Letters of Credit, the Administrative Agent will
repay and reassign to the Borrower any cash then held in the Cash Collateral
Account, and the Lien of the Administrative Agent on the Cash Collateral Account
and the funds therein shall automatically terminate. Notwithstanding the
foregoing, the requirement set forth above with respect to the deposit of cash
may be satisfied by delivery to the Administrative Agent of one or more letters
of credit issued by a bank, and otherwise in form, reasonably acceptable to the
Administrative Agent (it being understood and agreed that Wachovia is an
acceptable issuing bank), of which the Administrative Agent is the beneficiary,
in a stated principal amount equal to the Cash Collateral Requirement (any such
letter of credit issued by Wachovia being a "COLLATERAL LC"). If any amount
payable hereunder by the Borrower to any Lender or LC Bank is not paid when due,
the Administrative Agent shall to the maximum extent available draw an amount
under such letters of credit in an amount equal to the amount not paid when due
and then apply the amount so drawn toward the payment in full of such amount not
paid when due.
(b) The Borrower's obligation under subsection (a) above shall be
suspended, and the Administrative Agent shall cancel and surrender the
Collateral LCs to or to the order of the Borrower on the date specified therefor
(a "CANCELLATION DATE") in a written notice delivered to the Administrative
Agent specifying a remarketing date (a "REMARKETING DATE") for any pollution
control revenue bonds supported by a Letter of Credit (the "SUPPORTED BONDS"
and, such Letters of Credit, the "SUPPORTING LCS"), if (i) the Borrower shall
have satisfied its obligation under subsection (a) above to post cash collateral
by delivering to the Administrative Agent one or more Collateral LCs, (ii) no
Event of Default shall have occurred and be continuing, and (iii) the
Administrative Agent shall have received a certificate of a Financial Officer
stating that (x) all actions and notices required to cause, no later than three
calendar days after the applicable Cancellation Date, Supported Bonds to be
tendered and remarketed in connection with a planned remarketing of such
Supported Bonds due to a substitution of Supporting LCs for such Supported Bonds
(a "REMARKETING") with one or more letters of credit to be issued by Wachovia,
shall have been duly taken or delivered, and no such action or notice relating
to such Remarketing shall have been revoked or rescinded and (y) all letters of
credit to be issued by Wachovia in connection with such Remarketing shall have
an aggregate stated amount at least equal to the aggregate stated amount of
Supporting LCs to be replaced. If any such Remarketing is (A) successful, the
Borrower shall cause such Supporting LCs to be surrendered to the Administrative
Agent no later than the second Business Day following the applicable Remarketing
Date and (B) unsuccessful, the Borrower's obligations under subsection (a) above
shall automatically be reinstated in full.
ARTICLE VI
THE REVENUE ACCOUNT
SECTION 6.01. ESTABLISHMENT AND MANAGEMENT OF REVENUE ACCOUNT.
(a) The Borrower has established at The Bank of New York's office at 101
Barclay Street, 12E Floor, New York, NY 10286, account #217049 entitled "LOC
Trust 2003 - Revenue Account" (the "REVENUE ACCOUNT"). The Revenue Account has
been and shall remain pledged to the Collateral Agent for the benefit of the
Secured Parties pursuant to the Security Agreement.
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(b) The Revenue Account shall remain in the exclusive possession of, and
under the sole dominion and control of, the Collateral Agent.
(c) Each month during the term of this Agreement the Administrative Agent
shall prepare and deliver to the Borrower and each Lender and LC Bank a
statement of the balances in, and each transaction with respect to, the Revenue
Account.
(d) The Collateral Agent shall in no event be liable in connection with the
investment or reinvestment of any moneys held by it hereunder in accordance with
this Agreement and the other Loan Documents, including for any delays in the
investment or reinvestment of such moneys, or any loss of interest incidental to
any such delays, except to the extent caused by the gross negligence or willful
misconduct of the Collateral Agent.
(e) The Borrower shall deliver to the Collateral Agent such U.S. Internal
Revenue Service forms as are necessary and required for the Collateral Agent to
report the income earned on the investment and reinvestment of the monies in the
Accounts, which obligation shall survive the termination of this Agreement.
SECTION 6.02. THE REVENUE ACCOUNT.
(a) Except as specifically provided otherwise in Section 6.03, the
Collateral Agent shall promptly upon receipt thereof deposit in the Revenue
Account all monies received by the Collateral Agent pursuant to Section 2.16
hereof and Section 4.4 of the Security Agreement. All funds deposited in the
Revenue Account before 12:00 noon (New York City time) on any Business Day shall
be distributed on such Business Day as provided in subsection (b) or (c) below,
as applicable; all funds deposited in the Revenue Account after 12:00 noon (New
York City time) on any Business Day, to the extent practicable, shall be
distributed on such Business Day pursuant to subsection (b) or (c) below, and if
not practicable, shall be held by the Collateral Agent in the Revenue Account
and distributed pursuant to subsection (b) or (c) below on the following
Business Day. The Borrower hereby irrevocably authorizes and empowers the
Collateral Agent, as the attorney-in-fact for the Borrower, to endorse any check
or any other instrument or security to be deposited or held in the Revenue
Account requiring the endorsement of the Borrower, which power is coupled with
an interest and is irrevocable until the Maturity Date and the payment in full
of all Outstanding Credits and other amounts payable by the Borrower under the
Loan Documents.
(b) If no Acceleration shall have occurred, on each Business Day the
Collateral Agent shall distribute funds held in the Revenue Account as of 12:00
noon (New York City time) on such Business Day in the following priority and
amounts, unless otherwise directed by the Borrower and the Lenders (with the
consent of the Trustee if such directions would affect the priority of any
payment to the Trustee or any of its officers, directors, employees,
shareholders or agents):
FIRST, to the payment of the fees and expenses of the Trustee and any
indemnity payable by the Borrower to the Trustee or its officers, directors,
employees, shareholders or agents; SECOND, to the payment of other operating
expenses of the Borrower certified by the Borrower to the Collateral Agent to
be then due and payable, in accordance with instructions of the Borrower
36
included in such certificate; THIRD, to the payment of fees and expenses then
due and payable to the Collateral Agent under the Loan Documents; FOURTH, to
the payment of fees and expenses then due and payable to the Administrative
Agent under the Loan Documents; FIFTH, to the payment of LC Fees then due and
payable pro rata in accordance with each Lender's Percentage of all such
obligations then due and payable; SIXTH, to the payment of any interest then
due and payable on the Loans pro rata in accordance with each Lender's
Percentage of all such obligations then due and payable; SEVENTH, to the
payment of any reimbursement obligations in respect of Letters of Credit then
due and payable pro rata in accordance with each LC Bank's percentage of all
such obligations then due and payable; EIGHTH, to the payment of principal of
the Loans then due and payable pro rata in accordance with each Lender's
Percentage of all such obligations then due and payable; and NINTH, to the
payment of all other obligations of the Borrower under the Loan Documents not
otherwise described in this Section 6.02(b) then due and payable.
(c) If Acceleration shall have occurred, all Collateral held by the
Collateral Agent in the Revenue Account (including deposits and investments
thereof in the Revenue Account) and all cash proceeds received by the Collateral
Agent in respect of any sale of, collection from, or other realization upon all
or any part of the Collateral shall be applied to the payment of the fees and
expenses of the Trustee and any indemnity payable by the Borrower to the Trustee
or its officers, directors, employees, shareholders or agents, and the balance
may, in the discretion of the Collateral Agent, or shall, at the instruction of
the Lenders, be held by the Collateral Agent as Collateral for the Secured
Parties, and then or at any time thereafter be distributed in whole or in part
by the Collateral Agent in the following order of priority unless otherwise
directed by the Lenders (with the consent of the Collateral Agent if such
directions would affect the priority of any payment to any Agent and the consent
of the Trustee if such directions would affect the priority of any payment to
the Trustee or any of its officers, directors, employees, shareholders or
agents):
FIRST, to the payment of other operating expenses of the Borrower certified
by the Borrower to the Collateral Agent to be then due and payable, in
accordance with instructions of the Borrower included in such certificate;
SECOND, to the costs and expenses (including attorneys' fees and expenses),
if any, incurred by the Administrative Agent and the Collateral Agent in
connection with the collection of such amounts under the Loan Documents,
including, without limitation, any costs incurred in connection with the sale
or disposition of any Collateral; THIRD, to the payment of other fees and
expenses then due and payable to the Collateral Agent under the Loan
Documents; FOURTH, to the payment of other fees and expenses then due and
payable to the Administrative Agent under the Loan Documents; FIFTH, to the
payment of LC Fees then due and payable pro rata in accordance with each
Lender's Percentage of all such obligations then due and payable; SIXTH, to
the payment of any interest then due and payable on the Loans pro rata in
accordance with each Lender's Percentage of all such obligations then due and
payable; SEVENTH, to the payment of any reimbursement obligations in respect
of Letters of Credit then due and payable pro rata in accordance with each LC
Bank's percentage of all such obligations then due and payable; EIGHTH, to
the payment of principal of the Loans then due and payable pro rata in
accordance with each Lender's Percentage of all such obligations then due and
payable; NINTH, to the payment of all other obligations of the Borrower under
37
the Loan Documents not otherwise described in this Section 6.02(c) then due
and payable; and TENTH, to the Borrower or as otherwise required by law.
SECTION 6.03. PREPAYMENTS AND DEPOSITS OF FUNDS AT THE REQUEST OF THE
BORROWER.
If and for so long as no Event of Default shall have occurred and be
continuing, on the date of any transfer of funds by the Borrower to the
Collateral Agent pursuant to Section 2.11(a) or (b) to be applied to the
prepayment of Borrowings, the Collateral Agent shall distribute such funds in
the following priority and amounts, unless directed otherwise by the Borrower
and the Lenders:
FIRST, to the payment of any interest then due and payable on the Loans to be
prepaid on such date pro rata in accordance with each Lender's percentage of
all such obligations then due and payable; SECOND, to the payment of
principal of the Loans to be prepaid on such date pro rata in accordance with
each Lender's percentage of all such obligations then due and payable; and
THIRD, to payment to the Borrower or its designee in respect of a Restricted
Payment in an amount equal to any remaining amount of such funds.
ARTICLE VII
EVENTS OF DEFAULT
In case of the happening of any of the following events (each an "EVENT OF
DEFAULT"):
(a) any representation or warranty made or deemed made by the Borrower in
or in connection with the execution and delivery of any Loan Document or the
Letters of Credit or the Loans made hereunder shall prove to have been false or
misleading in any material respect when so made, deemed made or furnished;
(b) default shall be made by the Borrower in the payment of any principal
of any Loan or any reimbursement obligation in respect of any Letter of Credit
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration thereof or
otherwise;
(c) default shall be made by the Borrower in the payment of any interest on
any Outstanding Credit or any Fee or any other amount (other than an amount
referred to in subsection (b) above) due hereunder, when and as the same shall
become due and payable, and such default shall continue unremedied for a period
of five days;
(d) default shall be made by the Borrower (i) in the due observance or
performance of any covenant, condition or agreement contained in Section 5.01,
5.08, 5.09, 5.10, 5.11, 5.13, 5.14, 5.16, or 5.23, (ii) in the due observance or
performance of any covenant, condition or agreement contained in Section 5.12
and shall continue unremedied for a period of two Business Days following the
earlier to occur of actual knowledge of such default on the part of the Borrower
and notice thereof from the Administrative Agent at the request of any Lender,
(iii) in the due observance or performance of any covenant, condition or
agreement contained herein (other than those specified in subsection (b), (c) or
(d)(i) or (ii) above) and such default shall continue unremedied for a period of
38
30 days after notice thereof from the Administrative Agent at the request of any
Lender to the Borrower or (iv) the performance of any of its obligations under
any of the Security Documents;
(e) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed in a court of competent jurisdiction seeking (i) relief in
respect of the Borrower or TXU, or of a substantial part of the property or
assets of the Borrower or TXU, under Title 11 of the United States Bankruptcy
Code, as now constituted or hereafter amended, or any other Federal or state
bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
the Borrower or TXU or for a substantial part of the property or assets of the
Borrower or TXU or (iii) the winding up or liquidation of the Borrower or TXU;
and such proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be entered;
(f) the Borrower or TXU shall (i) voluntarily commence any proceeding or
file any petition seeking relief under Title 11 of the United States Bankruptcy
Code, as now constituted or hereafter amended, or any other Federal or state
bankruptcy, insolvency, receivership or similar law, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in (e) above, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or TXU or for a substantial
part of the property or assets of it or TXU, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its debts as they become
due or (vii) take any action for the purpose of effecting any of the foregoing;
(g) a Change in Control shall occur;
(h) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $2,000,000 shall be rendered against the Borrower
and such judgment or order shall remain undischarged or unstayed for a period of
30 days, or any action shall be legally taken by a judgment creditor to levy
upon assets or properties of the Borrower to enforce any such judgment or order;
or
(i) at any time after the execution and delivery thereof, any Loan Document
shall cease to be in full force and effect, or any Security Document shall cease
to give the Collateral Agent, for the benefit of the Secured Parties named
therein, the Liens and rights, powers and privileges purported to be created
thereby (including, without limitation, a perfected Lien on all of the
Collateral, in favor of the Collateral Agent, superior to and prior to the
rights of all third persons and subject to no other Liens);
then, and in every such event, and at any time thereafter during the continuance
of such event, the Administrative Agent: (i) shall at the request, or may with
the consent of the Required Lenders, terminate forthwith the Total Commitment
and the right of the Borrower to request and receive Loans; (ii) shall at the
request, or may with the consent of the Required Lenders, declare the Loans of
the Borrower then outstanding to be forthwith due and payable in whole or in
part, whereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and any unpaid accrued Fees and all other
39
liabilities of the Borrower accrued hereunder shall become forthwith due and
payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived, anything contained herein to the
contrary notwithstanding; provided that in the case of any event described in
subsection (e) or (f) above, the Total Commitment and the right of the Borrower
to request and receive Loans shall automatically terminate and the principal of
the Loans then, together with accrued interest thereon and any unpaid accrued
Fees and all other liabilities of the Borrower accrued hereunder shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein to the contrary notwithstanding (iii) shall
at the request, or may with the consent of the Required Lenders, direct the
Collateral Agent to exercise in respect of any and all Collateral, in addition
to the other rights and remedies provided for in the Loan Documents or otherwise
available to the Collateral Agent, the Administrative Agent, the Lenders or the
LC Banks, all rights and remedies of a secured party on default, including,
without limitation, enforcing all the Liens created pursuant to Section 5.24 and
the Security Documents. Notwithstanding anything to the contrary contained
herein, no notice given or declaration made by the Administrative Agent pursuant
to this Article VII shall affect the obligation of any LC Bank to make any
payment under any Letter of Credit issued by such LC Bank in accordance with the
terms of such Letter of Credit.
ARTICLE VIII
THE AGENTS
SECTION 8.01. THE AGENTS GENERALLY.
(a) In order to expedite the transactions contemplated by this Agreement,
CSFB is hereby appointed to act as Administrative Agent and Collateral Agent on
behalf of the Lenders and the LC Banks. Each Lender and LC Bank hereby
irrevocably authorizes the Administrative Agent and the Collateral Agent to take
such actions on behalf of such Lender and such LC Bank and to exercise such
powers as are specifically delegated to the Administrative Agent and the
Collateral Agent by the terms and provisions of the Loan Documents, together
with such actions and powers as are reasonably incidental thereto. The
Collateral Agent is hereby expressly authorized by the Lenders and the LC Banks,
without hereby limiting any implied authority, to receive on behalf of the
Lenders and the LC Banks all payments of principal of and interest on the
Outstanding Credits and all other amounts due to the Lenders and the LC Banks
under the Loan Documents, and promptly to distribute to each Lender and LC Bank
its proper share of each payment so received. The Administrative Agent is hereby
expressly authorized by the Lenders and the LC Banks, without hereby limiting
any implied authority, (i) to give notice on behalf of each Lender and LC Bank
to the Borrower of any Event of Default of which the Administrative Agent has
actual knowledge acquired in connection with its agency hereunder and (ii) to
distribute to each Lender and LC Bank copies of all notices, financial
statements and other materials delivered by the Borrower pursuant to this
Agreement as received by the Administrative Agent.
(b) The Agents may act through their attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care; neither any Agent nor any of its directors, officers, employees or agents
shall be liable as such for any action taken or omitted by any of them except
for its or his or her own gross negligence or willful misconduct, or be
40
responsible for any statement, warranty or representation herein or the contents
of any document delivered in connection herewith, or be required to ascertain or
to make any inquiry concerning the performance or observance by the Borrower of
any of the terms, conditions, covenants or agreements contained in any Loan
Document. The Agents shall not be responsible to the Lenders or the LC Banks for
the due execution, genuineness, validity, enforceability or effectiveness of any
Loan Document or other instruments or agreements. The Agents may deem and treat
the Lender or the LC Bank that makes any Loan as the holder of the indebtedness
resulting therefrom for all purposes hereof until it shall have received notice
from such Lender or LC Bank (as the case may be), given as provided herein, of
the transfer thereof. The Agents shall in all cases be fully protected in
acting, or refraining from acting, in accordance with written instructions
signed by the Required Lenders and, except as otherwise specifically provided
herein, such instructions and any action or inaction pursuant thereto shall be
binding on all the Lenders and LC Banks. Each of the Agents shall, in the
absence of knowledge to the contrary, be entitled to rely on any instrument or
document believed by it in good faith to be genuine and correct and to have been
signed or sent by the proper person or persons. No Agent or any of its
directors, officers, employees or agents shall have any responsibility to the
Borrower on account of the failure of or delay in performance or breach by the
other Agent or any Lender or LC Bank of any of its obligations hereunder or to
the other Agent or any Lender or LC Bank on account of the failure of or delay
in performance or breach by any other Lender or LC Bank, the other Agent or the
Borrower of any of its obligations hereunder or in connection herewith. Each of
the Agents may execute any and all duties hereunder by or through agents or
employees and shall be entitled to rely upon the advice of legal counsel
selected by it with respect to all matters arising hereunder and shall not be
liable for any action taken or suffered in good faith by it in accordance with
the advice of such counsel.
(c) The Lenders and the LC Banks hereby acknowledge that neither Agent
shall be under any duty to take any discretionary action permitted to be taken
by it pursuant to the provisions of any Loan Document unless it shall be
requested in writing to do so by the Required Lenders. The Agents shall not have
any duties or responsibilities, or be required to exercise any rights or
remedies under the Loan Documents, except as expressly set forth in the Loan
Documents.
(d) With respect to the Loans made by it and the reimbursement obligations
payable to it hereunder, each Agent, in its individual capacity and not as an
Agent, shall have the same rights and powers as any other Lender and may
exercise the same as though it were not an Agent, and each of the Agents and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Borrower or any Affiliate thereof as if it were not an
Agent.
(e) Each Lender agrees (i) to reimburse the Agents, on demand, in the
amount of its pro rata share (based on its Outstanding Credits or, if the amount
of the Outstanding Credits is $0, its Commitment) of any expenses incurred for
the benefit of the Lenders or the LC Banks in its role as Agent, including
counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders or the LC Banks, which shall not have been reimbursed
by the Borrower, and (ii) to indemnify and hold harmless each of the Agents and
any of its directors, officers, employees or agents, on demand, in the amount of
such pro rata share, from and against any and all liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
41
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by or asserted against it in any way relating to or arising out of
this Agreement or any action taken or omitted by it under this Agreement to the
extent the same shall not have been reimbursed by the Borrower; provided that no
Lender shall be liable to any Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of such Agent or any of its directors, officers, employees or agents.
(f) Each Lender and LC Bank acknowledges that it has, independently and
without reliance upon the Agents or any other Lender or LC 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 Lender and LC Bank also
acknowledges that it will, independently and without reliance upon the Agents or
any other Lender or LC Bank and based on such documents and information as it
shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon the Loan Documents or any
related agreement or any document furnished hereunder or thereunder.
(g) The Collateral Agent may appoint another financial institution (the
"SUB-AGENT") to act as the agent for the Collateral Agent pursuant to Section
8.02(d) for the purpose of maintaining the Revenue Account and each Cash
Collateral Account. The Collateral Agent shall have no obligation to perform
such duties as long as the Sub-Agent is acting as such agent and shall not be
liable for the performance or non-performance of such duties by the Sub-Agent.
In acting as such agent for the Collateral Agent, the Sub-Agent, in such
capacity, shall be entitled to the benefit of all provisions of, and be subject
to all obligations under, this Agreement and the other Loan Documents including,
without limitation, this Section 8.01, as though the Sub-Agent were the
Collateral Agent.
SECTION 8.02. REPLACEMENT OF AGENTS.
(a) Resignation. Subject to the appointment and acceptance of a successor
Agent as provided in this subsection (a), either Agent may resign at any time by
notifying the Lenders, the LC Banks and the Borrower. Upon any such resignation,
the Required Lenders shall have the right to appoint a successor Agent
acceptable to the Borrower. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders and the LC Banks, appoint a successor Agent having a
combined capital and surplus of at least $500,000,000 or an Affiliate of any
such bank. Upon the acceptance of any appointment as Agent hereunder by a
successor bank, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
Agent's resignation hereunder, the provisions of this Article and Section 9.05
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Agent.
(b) Removal. The Lenders may remove any Agent upon 30 days' prior notice by
so notifying the Borrower and, in such event, the Lenders shall appoint a
successor Agent acceptable to the Borrower. Either the Required Lenders or the
Borrower may remove any Agent if (i) such Agent is adjudged bankrupt or
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insolvent or (ii) a receiver or other public officer takes charge of such Agent
or its property. If no successor Agent shall have been appointed by the Lenders
and shall have accepted such appointment within 30 days after delivery by the
Lenders of the notice required by the first sentence of this subsection (b), the
Required Lenders or the Borrower may petition any court of competent
jurisdiction for the appointment of a successor Agent. After any Agent's removal
hereunder, the provisions of this Article and Section 9.05 shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as Agent. Upon the acceptance by a successor Collateral
Agent of its appointment as Collateral Agent (x) the retiring Collateral Agent
shall transfer all property held by it as Collateral Agent to the successor
Collateral Agent and (y) such successor Collateral Agent shall succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Collateral Agent and the retiring Collateral Agent shall be discharged from its
duties and obligations hereunder.
SECTION 8.03. RIGHTS AND DUTIES OF THE COLLATERAL AGENT.
(a) Notwithstanding anything to the contrary in any Loan Document, the
powers conferred on the Collateral Agent under the Loan Documents are solely to
protect its interest (on behalf of the Secured Parties) in the Collateral and
shall not impose any duty upon it to exercise any such powers. Except for the
reasonable care of any Collateral in its possession and the accounting for
moneys actually received by it under the Loan Documents, the Collateral Agent
shall have no duty as to any Collateral, or responsibility, for (i) ascertaining
or taking action with respect to calls, conversions, exchanges, maturities,
tenders or other matters relative to any investment property constituting
Collateral, whether or not the Collateral Agent has or is deemed to have
knowledge of such matters, or (ii) taking any necessary steps to preserve rights
against prior parties or any other rights pertaining to any Collateral. The
Collateral Agent shall be deemed to have exercised reasonable care in the
custody and preservation of any Collateral in its possession if such Collateral
is accorded treatment substantially equal to that which it accords its own
property.
(b) The Collateral Agent shall not be liable for interest on any money or
assets received by it except as the Collateral Agent may agree in writing with
the Borrower. Assets held in trust by the Collateral Agent need not be
segregated from other assets except to the extent required by law.
(c) Before the Collateral Agent acts or refrains from acting, it may
require a certificate of a Responsible Officer at the expense of the Borrower.
The Collateral Agent shall not be liable for any action it takes or omits to
take in good faith in reliance on such officer's certificate.
(d) The Collateral Agent shall not be liable for any action that it takes
or omits to take in good faith that it reasonably believes to be authorized or
within its rights or powers under the Security Documents.
(e) The Collateral Agent shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Collateral Agent, in its
43
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit and, if the Collateral Agent shall determine to make
such further inquiry or investigation, it shall be entitled, upon reasonable
notice to the Borrower, to examine the books, records and premises of the
Borrower, personally or by agent or attorney and to consult with the officers
and representatives of the Borrower, including the Borrower's accountants and
attorneys. Except as expressly stated herein to the contrary, in no event shall
the Collateral Agent have any responsibility to ascertain whether there has been
compliance with any of the covenants or provisions of the Security Documents.
(f) The Collateral Agent shall be under no obligation to exercise any of
the rights or powers vested in it by the Security Documents at the request,
order or direction of the Required Lenders (with respect to the Security
Agreement) or of the "Bank" (as defined in and with respect to each Pledge
Agreement) unless such Lenders shall have offered to the Collateral Agent
security or indemnity reasonably satisfactory to the Collateral Agent against
the costs, expenses and liabilities that may be incurred by it in compliance
with such request, order or direction.
(g) The Collateral Agent shall not be required to give any bond or surety
in respect of the performance of its powers and duties under the Security
Documents.
(h) The Collateral Agent may from time to time, at its option, perform any
act that the Borrower agrees hereunder to perform and that the Borrower shall
fail to perform after being requested in writing so to perform (it being
understood that no such request need be given after the occurrence of an Event
of Default) and the Collateral Agent may from time to time take any other action
that the Collateral Agent reasonably deems necessary for the maintenance,
preservation or protection of any of the Collateral or of its security interest
therein.
(i) The Collateral Agent is authorized to endorse, in the name of the
Borrower, any item, howsoever received by the Collateral Agent, representing any
payment on or other proceeds of any of the Collateral.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES.
Notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, mailed, or sent by
telecopy, as follows:
(a) if to the Borrower, c/o Wilmington Trust Company, Rodney Square North,
1100 North Market Street, Wilmington, DE 19890-0001, Attention: Corporate
Capital Markets (facsimile: (302) 636-4145), with a copy to the Administrator,
at TXU Business Services Company, Energy Plaza, 1601 Bryan Street, 33rd Floor,
Dallas, TX 75201, Attention: Treasurer (Telecopy No. 214-812-2488);
(b) if to the Administrative Agent or the Collateral Agent, to Eleven
Madison Avenue, Mail Stop OMA-02, New York, NY 10010-3629, Attention:
Christopher Kim/Agency Group (facsimile: (212) 325-8304);
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(c) if to a Lender or LC Bank, to it at its address (or telecopy number)
set forth in the Register or in the Assignment and Acceptance pursuant to which
such Lender or LC Bank became a party hereto; or
(d) as to each party hereto, at such other address as shall be designated
by such party in a written notice to each other party hereto.
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by telecopy to such party as provided in this Section or in accordance
with the latest unrevoked direction from such party given in accordance with
this Section.
SECTION 9.02. SURVIVAL OF AGREEMENT.
All covenants, agreements, representations and warranties made by the
Borrower herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement shall be considered
to have been relied upon by the Lenders and the LC Banks and shall survive the
Restatement Date and the making by the Lenders of all Loans regardless of any
investigation made by the Lenders or the LC Banks or on their behalf, and shall
continue in full force and effect as long as the principal of or any accrued
interest on any Outstanding Credit or any Fee or any other amount payable under
this Agreement is outstanding and unpaid or the Commitments have not been
terminated.
SECTION 9.03. BINDING EFFECT.
Subject to Section 4.01, this Agreement shall become effective when duly
executed by the parties hereto, and thereafter shall be binding upon and inure
to the benefit of the parties hereto and the Trustee, which is an intended third
party beneficiary hereof, and their respective successors and assigns, except
that the Borrower shall not have the right to assign any rights hereunder or any
interest herein without the prior consent of all the Lenders.
SECTION 9.04. SUCCESSORS AND ASSIGNS.
(a) Whenever in this Agreement any of the parties hereto is referred to,
such reference shall be deemed to include the successors and assigns of such
party, and all covenants, promises and agreements by or on behalf of any party
that are contained in this Agreement shall bind and inure to the benefit of its
successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of its
interests, rights and obligations under this Agreement (including (i) all or a
portion of its Commitment and the Outstanding Credits at the time owing to it
and (ii) its rights and obligations as an LC Bank); provided, however, that (i)
except in the case of an assignment to another Lender or to an Affiliate of such
Lender, an assignment to a Federal Reserve Bank or an assignment made at any
time an Event of Default shall have occurred and be continuing, the Borrower (if
no Event of Default has occurred and is continuing) and the Administrative Agent
must give their prior written consent to such assignment (in each case, which
consent shall not be unreasonably withheld), (ii) the amount of the Commitment
of the assigning Lender subject to each such assignment (determined as of the
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date the Assignment and Acceptance with respect to such assignment is delivered
to the Administrative Agent) shall not be less than $1,000,000 or, if the amount
of the Commitment of the assigning Lender is less than $1,000,000, the aggregate
amount of such Lender's Commitment, (iii) each such assignment shall be of a
constant, and not a varying, percentage of all the assigning Lender's rights and
obligations under the Loan Documents and (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance. Upon acceptance and recording pursuant to Section 9.04(e), from
and after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five Business Days after the execution thereof
unless otherwise agreed by the Administrative Agent (the Borrower to be given
reasonable notice of any shorter period), (A) the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender and LC Bank under the
Loan Documents and (B) the assigning Lender thereunder shall, to the extent of
the interest assigned by such Assignment and Acceptance, be released from its
obligations under the Loan Documents (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto (but shall continue to be entitled to the benefits of Sections 2.12, 2.17
and 9.05 afforded to such Lender prior to its assignment as well as to any Fees
accrued for its account hereunder and not yet paid)). Notwithstanding the
foregoing, any Lender assigning its rights and obligations under this Agreement
may retain any Loans made by it outstanding at such time, and in such case shall
retain its rights hereunder in respect of any Loans so retained until such Loans
have been repaid in full in accordance with this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, (ii) except
as set forth in (i) above, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents,
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any other instrument or document furnished
pursuant hereto or the financial condition of the Borrower or the performance or
observance by the Borrower of any obligations under the Loan Documents or any
other instrument or document furnished pursuant hereto, (iii) such assignor and
such assignee represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance, (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 5.04 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance, (v) such assignee will
independently and without reliance upon the Agents, such assigning Lender or any
other Lender or LC Bank and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, (vi) such assignee
appoints and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to such Agent
by the terms hereof, together with such powers as are reasonably incidental
thereto, and (vii) such assignee agrees that it will perform in accordance with
their terms all the obligations that by the terms of the Loan Documents are
required to be performed by it as a Lender.
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(d) The Administrative Agent shall maintain at one of its offices in the
City of New York a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitment of, and the principal amount of the Outstanding Credits owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive in the absence of manifest error and
the Borrower, the Agents, the LC Banks and the Lenders may treat each person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by each party hereto, at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee and, if required, the written consent of
the Borrower and the Administrative Agent to such assignment, the Administrative
Agent shall (i) accept such Assignment and Acceptance and (ii) record the
information contained therein in the Register.
(f) Each Lender may without the consent of the Borrower or the
Administrative Agent sell participations to one or more banks or other entities
in all or a portion of its rights and/or obligations under the Loan Documents
(including all or a portion of its Commitment and the Outstanding Credits owing
to it); provided, however, that (i) such Lender's obligations under the Loan
Documents shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) each participating bank or other entity shall be entitled to the benefit
of the cost protection provisions contained in Sections 2.12, 2.17 and 9.05 to
the same extent as if it were the selling Lender (and limited to the amount that
could have been claimed by the selling Lender had it continued to hold the
interest of such participating bank or other entity), except that all claims
made pursuant to such Sections shall be made through such selling Lender, and
(iv) the Borrower, the Agents, the LC Banks and the other Lenders shall continue
to deal solely and directly with such selling Lender in connection with such
Lender's rights and obligations under the Loan Documents, and such Lender shall
retain the sole right to enforce the obligations of the Borrower under this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement (other than amendments, modifications or waivers (x)
decreasing any fees payable hereunder or the amount of principal of, or the rate
at which interest is payable on, the Outstanding Credits, (y) extending any
scheduled principal payment date or date fixed for the payment of interest on
the Outstanding Credits or (z) extending the Commitments).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section,
disclose to the assignee or participant or proposed assignee or participant any
information relating to the Borrower furnished to such Lender by or on behalf of
the Borrower; provided that, prior to any such disclosure, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of any such information.
(h) The Borrower shall not assign or delegate any rights and duties
hereunder without the prior written consent of all Lenders, and any attempted
assignment or delegation by the Borrower without such consent shall be void.
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(i) Any Lender may at any time pledge all or any portion of its rights
under this Agreement to a Federal Reserve Bank; provided that no such pledge
shall release any Lender from its obligations hereunder or substitute any such
Bank for such Lender as a party hereto. In order to facilitate such an
assignment to a Federal Reserve Bank, the Borrower shall, at the request of the
assigning Lender, duly execute and deliver to the assigning Lender a promissory
note or notes evidencing the extensions of credit made to the Borrower by the
assigning Lender hereunder.
SECTION 9.05. EXPENSES; INDEMNITY.
(a) The Borrower agrees to pay (i) all reasonable out-of-pocket expenses
incurred by the Agents in connection with entering into this Agreement (whether
or not the transactions hereby contemplated are consummated) and in connection
with any amendments, modifications or waivers of the provisions hereof (but only
if such amendments, modifications or waivers are requested by the Borrower),
including the reasonable fees and disbursements of one counsel for the Agents,
the Lenders and LC Banks and (ii) all reasonable out-of-pocket expenses incurred
by the Agents, any LC Bank or any Lender in connection with any claim or claims
arising out of or in connection with the transactions contemplated by this
Agreement and enforcement following an Event of Default, including the
reasonable fees and disbursements of counsel for the Agents, the Lenders and the
LC Banks. In addition to the foregoing, the Borrower shall pay or reimburse the
LC Banks for such reasonable, normal and customary costs and expenses as are
incurred or charged by the LC Banks in issuing, negotiating, effecting payment
under, amending or otherwise administering any Letter of Credit.
(b) The Borrower agrees to indemnify each Lender and LC Bank against any
loss, calculated in accordance with the next sentence, or reasonable expense
that such Lender or LC Bank (as the case may be) may sustain or incur as a
consequence of (i) any failure by the Borrower to borrow or to refinance,
convert or continue any Loan hereunder (including as a result of the Borrower's
failure to fulfill any of the applicable conditions set forth in Article IV)
after irrevocable notice of such borrowing, refinancing, conversion or
continuation has been given pursuant to Section 2.03, (ii) any payment,
prepayment or conversion, or assignment of a Eurodollar Loan of the Borrower
required by any other provision of this Agreement or otherwise made or deemed
made on a date other than the last day of the Interest Period, if any,
applicable thereto, (iii) any default in payment or prepayment of the principal
amount of any Outstanding Credit or any part thereof or interest accrued
thereon, as and when due and payable (at the due date thereof, whether by
scheduled maturity, acceleration, irrevocable notice of prepayment or otherwise)
or (iv) the occurrence of any Event of Default, including, in each such case,
any loss or reasonable expense sustained or incurred or to be sustained or
incurred by such Lender in liquidating or employing deposits from third parties,
or with respect to commitments made or obligations undertaken with third
parties, to effect or maintain any Loan hereunder or any part thereof as a
Eurodollar Loan. Such loss shall include an amount equal to the excess, if any,
as reasonably determined by such Lender, of (x) its cost of obtaining the funds
for the Loan being paid, prepaid, refinanced, converted or not borrowed (assumed
to be the LIBO) for the period from the date of such payment, prepayment,
refinancing or failure to borrow or refinance to the last day of the Interest
Period for such Loan (or, in the case of a failure to borrow or refinance the
Interest Period for such Loan that would have commenced on the date of such
failure) over (y) the amount of interest (as reasonably determined by such
Lender) that would be realized by such Lender in reemploying the funds so paid,
48
prepaid or not borrowed or refinanced for such period or Interest Period, as the
case may be.
(c) The Borrower agrees to indemnify the Agents, each Lender, each LC Bank,
each of their Affiliates and the directors, officers, employees and agents of
the foregoing (each such person being called an "INDEMNITEE") against, and to
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees and
expenses, incurred by or asserted against any Indemnitee arising out of (i) the
preparation, execution, delivery, enforcement, performance and administration of
this Agreement, (ii) the use of the proceeds of the Letters of Credit or the
Loans or (iii) any claim, litigation, investigation or proceeding relating to
any of the foregoing, whether or not any Indemnitee is a party thereto,
including any of the foregoing arising from the negligence, whether sole or
concurrent, on the part of any Indemnitee; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses (x) are determined by a final judgment
of a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of such Indemnitee or (y) result from any litigation
brought by such Indemnitee against the Borrower or by the Borrower against such
Indemnitee, in which a final, nonappealable judgment has been rendered against
such Indemnitee; provided, further, that the Borrower agrees that it will not,
without the prior written consent of each Indemnitee, settle, compromise or
consent to the entry of any judgment in any pending or threatened claim, action,
suit or proceeding in respect of which indemnification could be sought under the
indemnification provisions of this Section 9.05(c) (whether or not any
Indemnitee is an actual or potential party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent does not include any
statement as to an admission of fault, culpability or failure to act by or on
behalf of any Indemnitee and does not involve any payment of money or other
value by any Indemnitee or any injunctive relief or factual findings or
stipulations binding on any Indemnitee.
(d) The provisions of this Section shall remain operative and in full force
and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Outstanding Credits, the expiration or termination of the Commitment, the
invalidity or unenforceability of any term or provision of this Agreement or any
investigation made by or on behalf of any Agent, Lender or LC Bank. All amounts
due under this Section shall be payable on written demand therefor.
(e) A certificate of any Lender, LC Bank or Agent setting forth any amount
or amounts that such Lender, LC Bank or Agent is entitled to receive pursuant to
subsection (b) of this Section and containing an explanation in reasonable
detail of the manner in which such amount or amounts shall have been determined
shall be delivered to the Borrower and shall be conclusive absent manifest
error.
SECTION 9.06. LIMITATION ON LIABILITY OF THE TRUSTEE.
It is expressly understood and agreed by the parties that (i) this document
is executed and delivered by Wilmington Trust Company, not individually or
personally, but solely as Trustee, in the exercise of the powers and authority
conferred and vested in it pursuant to the Trust Agreement, (ii) each of the
representations, undertakings and agreements herein made on the part of the
49
Borrower is made and intended not as a personal representation, undertaking and
agreement by Wilmington Trust Company but is made and intended for the purpose
for binding only the Borrower, (iii) nothing herein contained shall be construed
as creating any liability on Wilmington Trust Company, individually or
personally, to perform any covenant, either expressed or implied, contained
herein, all such liability, if any, being expressly waived by the parties hereto
and by any person claiming by, through or under the parties hereto, and (iv)
under no circumstances shall Wilmington Trust Company be personally liable for
the payment of any indebtedness or expenses of the Borrower or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Borrower under this Agreement or any other related
documents.
SECTION 9.07. RIGHT OF SETOFF.
If an Event of Default shall have occurred and be continuing, each Lender
and LC Bank is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender or LC Bank to or for the
credit or the account of the Borrower against any of and all the obligations of
the Borrower now or hereafter existing under this Agreement held by such Lender
or LC Bank (as the case may be), irrespective of whether or not such Lender or
LC Bank (as the case may be) shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender and LC
Bank under this Section are in addition to other rights and remedies (including
other rights of setoff) that such Lender or LC Bank (as the case may be) may
have.
SECTION 9.08. APPLICABLE LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE
LAWS OF THE STATE OF NEW YORK.
SECTION 9.09. WAIVERS; AMENDMENT.
(a) No failure or delay of either Agent or any Lender or LC Bank in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agents, the Lenders and the LC
Banks hereunder are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure therefrom shall in any event be effective unless the
same shall be permitted by subsection (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on the Borrower in any case shall entitle such party
to any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower and the Required Lenders; provided, however, that no such
agreement shall (i) decrease the principal amount of, or extend the maturity of
or any scheduled principal payment date or date for the payment of any interest
50
on any Outstanding Credit, or waive or excuse any such payment or any part
thereof, or decrease the rate of interest on any Outstanding Credit, without the
prior written consent of each Lender affected thereby, (ii) increase any
Commitment or decrease the LC Fee of any Lender without the prior written
consent of such Lender, (iii) amend or modify the provisions of Section 2.14,
2.15, 6.02, 6.03 or 9.04(h), the provisions of this Section or the definition of
"Cash Collateral Requirement" or "Required Lenders", or (iv) release any of the
Collateral (other than in connection with Restricted Payments permitted under
Section 5.12), without the prior written consent of each Lender affected
thereby; provided further, however, that no such agreement shall amend, modify
or otherwise affect the rights or duties of the Administrative Agent, the
Collateral Agent, any LC Bank or the Trustee without the prior written consent
of the Administrative Agent, the Collateral Agent, such LC Bank or the Trustee,
as the case may be. Each Lender and LC Bank shall be bound by any waiver,
amendment or modification authorized by this Section and any consent by any
Lender, the Administrative Agent or any LC Bank pursuant to this Section shall
bind any assignee of its rights and interests hereunder.
SECTION 9.10. ENTIRE AGREEMENT.
This Agreement (including the schedules and exhibits hereto) and the Letter
Agreement represent the entire contract among the parties relative to the
subject matter hereof and thereof. Any previous agreement, whether written or
oral, among the parties with respect to the subject matter hereof, is superseded
by this Agreement and the Letter Agreement. There are no unwritten oral
agreements between the parties. Nothing in this Agreement, expressed or implied,
is intended to confer upon any party other than the parties hereto and the
Trustee, which is an intended third party beneficiary hereof, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
SECTION 9.11. SEVERABILITY.
In the event any one or more of the provisions contained in this Agreement
should be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby. The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.12. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which
shall constitute an original but all of which when taken together shall
constitute but one contract, and shall become effective as provided in Section
9.03.
SECTION 9.13. HEADINGS.
Article and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
51
SECTION 9.14. INTEREST RATE LIMITATION.
(a) Notwithstanding anything herein to the contrary, if at any time the
applicable interest rate, together with all fees and charges that are treated as
interest under applicable law (collectively the "CHARGES"), as provided for
herein or in any other document executed in connection herewith, or otherwise
contracted for, charged, received, taken or reserved by any Lender or LC Bank,
shall exceed the maximum lawful rate (the "MAXIMUM RATE") which may be
contracted for, charged, taken, received or reserved by such Lender or LC Bank
(as the case may be) in accordance with applicable law, the rate of interest
payable on the Outstanding Credits of such Lender or LC Bank (as the case may
be), together with all Charges payable to such Lender or LC Bank (as the case
may be), shall be limited to the Maximum Rate.
(b) If the amount of interest, together with all Charges, payable for the
account of any Lender or LC Bank in respect of any interest computation period
is reduced pursuant to subsection (a) of this Section and the amount of
interest, together with all Charges, payable for such Lender's or LC Bank's (as
the case may be) account in respect of any subsequent interest computation
period, computed pursuant to Section 2.07, would be less than the Maximum Rate,
then the amount of interest, together with all Charges, payable for such
Lender's or LC Bank's (as the case may be) account in respect of such subsequent
interest computation period shall, to the extent permitted by applicable law, be
automatically increased to such Maximum Rate; provided that at no time shall the
aggregate amount by which interest paid for the account of any Lender or LC Bank
has been increased pursuant to this subsection (b) exceed the aggregate amount
by which interest, together with all Charges, paid for its account has
theretofore been reduced pursuant to subsection (a) of this Section.
SECTION 9.15. JURISDICTION; VENUE.
(a) The Borrower hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court
or Federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising out of
or relating to this Agreement, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Subject to the foregoing and to subsection (b) below, nothing in this Agreement
shall affect any right that any party hereto may otherwise have to bring any
action or proceeding relating to this Agreement against any other party hereto
in the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or thereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any New York State court or
Federal court of the United States of America sitting in New York City. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
52
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
SECTION 9.16. CONFIDENTIALITY.
Each Lender and LC Bank shall use its best efforts to hold in confidence
all information, memoranda, or extracts furnished to such Lender or LC Bank (as
the case may be) (directly or through the Agents) by the Borrower hereunder or
in connection with the negotiation hereof; provided that such Lender and LC Bank
may disclose any such information, memoranda or extracts (i) to its Affiliates,
accountants or counsel, (ii) to any regulatory agency having authority to
examine such Lender or LC Bank (as the case may be), (iii) as required by any
legal or governmental process or otherwise by law, (iv) to any person to which
such Lender or LC Bank (as the case may be) sells or proposes to sell an
assignment or a participation in its extensions of credit hereunder, if such
other person agrees for the benefit of the Borrower to comply with the
provisions of this Section, and (v) to the extent that such information,
memoranda or extracts shall be publicly available or shall have become known to
such Lender or LC Bank (as the case may be) independently of any disclosure by
the Borrower hereunder or in connection with the negotiation hereof.
Notwithstanding the foregoing, any Lender and any LC Bank may disclose the
provisions of this Agreement and the amounts, maturities and interest rates of
its Outstanding Credits to any purchaser or potential purchaser of such Lender's
or LC Bank's (as the case may be) interest in any Outstanding Credits.
Notwithstanding the foregoing, each party hereto (and each officer, director,
employee, representative, agent and advisor of each party hereto) may disclose
to any and all persons, without limitation of any kind, the "tax treatment" and
"tax structure" (in each case within the meaning of Treasury Regulation Section
1.6011-4) of the transactions contemplated by the Loan Documents and all
materials of any kind (including opinions or other tax analyses) that are
provided to such person relating to such "tax treatment" and "tax structure".
The foregoing is intended to comply with the presumption set forth in Treasury
Regulation Section 1.6011-4(b)(3)(iii) and should be interpreted in a manner
consistent with such regulation.
SECTION 9.17. APPROVAL OF AMENDMENTS
Each Lender and LC Bank hereby authorizes and instructs the Collateral
Agent to enter into each document described in Sections 4.01(a)(ii) through (iv)
and to release the security interests to be released pursuant thereto.
[Signature pages follow]
S-1
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.
LOC 2003 TRUST
By WILMINGTON TRUST COMPANY, not in its
individual capacity but solely in
its capacity as Trustee
By /s/ Joseph B. Feil
-------------------------------
Name: Joseph B. Feil
Title: Assistant Vice President
S-2
CREDIT SUISSE FIRST BOSTON, acting through
its Cayman Islands branch, as
Administrative Agent, Collateral Agent,
Lender and LC Bank
By /s/ Brian T. Caldwell
------------------------------
Name: Brian T. Caldwell
Title: Director
By /s/ Denise L. Alvarez
------------------------------
Name: Denise L. Alvarez
Title: Director
S-3
JPMORGAN CHASE BANK, N.A., as Lender and
LC Bank
By /s/ Robert W. Traband
------------------------------
Name: Robert W. Traband
Title: Vice President
S-4
CITIBANK, N.A., as Lender and LC Bank
By /s/ Sandip Sen
------------------------------
Name: Sandip Sen
Title: Managing Director
SCHEDULE 1
COMMITMENTS
NAME OF LENDER COMMITMENT
Credit Suisse First Boston, acting through its Cayman Islands branch $149,999,999.80
JPMorgan Chase Bank, N.A. $149,999,999.80
Citibank, N.A. $125,000,000.40
TOTAL $425,000,000.00
EXHIBIT A
FORM OF BORROWING REQUEST
[Date]
Credit Suisse First Boston, acting through its
Cayman Islands branch, as Administrative
Agent for the Lenders referred to below
Eleven Madison Avenue
Mail Stop OMA-02
New York, New York 10010-3629
Attention: Christopher Kim/Agency Group
(facsimile: (212) 325-8304)
Attention:
Telecopy:
Ladies and Gentlemen:
The undersigned, LOC 2003 Trust (the "BORROWER"), refers to the Amended and
Restated Credit Agreement, dated as of December 22, 2004 (as amended, modified,
extended or restated from time to time, the "AGREEMENT"), among the Borrower,
the lenders named therein (the "LENDERS") and Credit Suisse First Boston, acting
through its Cayman Islands branch, as administrative agent for the Lenders.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Agreement. The Borrower hereby gives you
notice pursuant to Section 2.03 of the Agreement that it requests a Borrowing
under the Agreement, and in that connection sets forth below the terms on which
such Borrowing is requested to be made:
(A) Date of Borrowing (which is a Business Day) ________
(B) Principal amount of Borrowing1 ________
(C) Interest rate basis/2/ ________
(D) Interest Period and the last day thereof/3/ ________
Upon acceptance of any or all of the Loans made by the Lenders in response
to this request, the Borrower shall be deemed to have represented and warranted
that the applicable conditions to lending specified in Article IV of the
Agreement have been satisfied.
Very truly yours,
- ----------
1 Not less than $25,000,000 (and in integral multiples of $5,000,000) or
greater than the Total Commitment then available.
2 Eurodollar Loan or ABR Loan.
3 Which shall be subject to the definition of "INTEREST PERIOD" and end
not later than the Maturity Date.
LOC 2003 TRUST
By WILMINGTON TRUST COMPANY, not in its
individual capacity but solely in its
capacity as Trustee
By_______________________________
Name:
Title:
A-2
EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ACCEPTANCE
Dated: __________
Reference is made to the Amended and Restated Credit Agreement, dated as of
December 22, 2004 (as amended, modified, extended or restated from time to time,
the "AGREEMENT"), among LOC 2003 Trust, the lenders named therein (the
"LENDERS") and Credit Suisse First Boston, acting through its Cayman Islands
branch, as administrative agent for the Lenders. Terms defined in the Agreement
are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the [Effective Date of Assignment set forth
below], the interests set forth on the reverse hereof (the "ASSIGNED INTEREST")
in the Assignor's rights and obligations under the Agreement, including, without
limitation, the interests set forth on the reverse hereof in the Commitment of
the Assignor on the [Effective Date of Assignment] and the Loans and other
reimbursement obligations owing to the Assignor which are outstanding on the
[Effective Date of Assignment], together with unpaid interest accrued on the
assigned Loans and such other reimbursement obligations to the [Effective Date
of Assignment] and the amount, if any, set forth on the reverse hereof of the
Fees accrued to the [Effective Date of Assignment] for the account of the
Assignor. Each of the Assignor and the Assignee hereby makes and agrees to be
bound by all the representations, warranties and agreements set forth in Section
9.04 of the Agreement, a copy of which has been received by each such party.
From and after the [Effective Date of Assignment], (i) the Assignee shall be a
party to and be bound by the provisions of the Agreement and, to the extent of
the interests assigned by this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent of
the interests assigned by this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Agreement.
2. This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is organized under the laws of a
jurisdiction outside the United States, the forms specified in Section 2.17(g)
of the Agreement, duly completed and executed by such Assignee, and (ii) if the
Assignee is not already a Lender under the Agreement, an administrative
questionnaire.
3. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment
unless otherwise agreed by the
Administrative Agent):
B-2
Percentage Assigned of
Facility/Commitment (set forth, to at
Facility Principal Amount Assigned least 8 decimals, as a percentage of the
(and identifying information Facility and the aggregate Commitments of
as to individual Loans) all Lenders thereunder
Commitment Assigned: $____________ __________%
Loans: $____________ __________%
Letters of Credit: $____________ __________%
Fees Assigned (if any): $____________ __________%
B-3
The terms set forth and on the reverse Accepted:
side hereof are hereby agreed to: LOC 2003 TRUST
by WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely in its capacity as
Trustee
_________________________, as
Assignor
By_______________________, as By_____________________________
Name: Name:
Title: Title:
_________________________, as CREDIT SUISSE FIRST BOSTON,
Assignee, acting through its Cayman
Islands branch, as
Administrative Agent
By_______________________, as
Name: By_____________________________
Title: Name:
Title:
By_____________________________
Name:
Title
B-4
EXHIBIT C
FORM OF PROMISSORY NOTE
PROMISSORY NOTE
December __, 2004
$______________ New York, New York
FOR VALUE RECEIVED, the undersigned, LOC 2003 TRUST, a Delaware statutory
trust (the "BORROWER"), HEREBY PROMISES TO PAY to the order of _________________
or registered assigns (the "LENDER"), on the Maturity Date (such term, and each
other capitalized term used but not defined herein, having the meaning ascribed
thereto in the Credit Agreement (as defined below)), for the account of the
Lender at the office of the Administrative Agent under the Credit Agreement, in
lawful money of the United States of America and in immediately available funds,
the principal sum of ___________________ DOLLARS ($_____________) or, if less,
the aggregate principal amount of the Loans made by the Lender to the Borrower
pursuant to the Credit Agreement outstanding on such Maturity Date; provided,
however, that the principal amount outstanding under this Promissory Note is
subject to prepayment and repayment from time to time, with accrued interest
thereon, as specified in the Credit Agreement. The Borrower further agrees to
pay interest in like money to the Lender on the unpaid principal amount hereof
from the date hereof at such interest rates, and payable at such times, as
specified in the Credit Agreement.
The Lender is authorized to record on the schedule annexed hereto (i) the
date and amount of each Loan made by the Lender to the Borrower, (ii) the
character thereof as an ABR Loan or a Eurodollar Loan, (iii) the interest rate
and the Interest Period applicable to each Eurodollar Loan, and (iv) the date
and amount of each conversion of, and each payment or prepayment of principal
of, each Loan; provided, that the failure to so record or any error in so
recording shall not affect the payment obligations of the Borrower hereunder or
under the Credit Agreement.
This Promissory Note is delivered pursuant to, and is entitled to the
benefits of, the Amended and Restated Credit Agreement, dated as of December 22,
2004 (as the same may be amended, modified or supplemented, the "CREDIT
AGREEMENT"), among the Borrower, the lenders party thereto (the "BANKS") and
Credit Suisse First Boston, acting through its Cayman Islands branch, as
Administrative Agent. The Credit Agreement, among other things, (i) provides for
the making of Loans by the Banks to the Borrower from time to time in an
aggregate outstanding amount not to exceed at any time the Total Commitment, the
indebtedness of the Borrower to the Lender resulting from each such Loan made by
the Lender being evidenced by this Promissory Note, and (ii) contains provisions
for acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified. The Borrower
hereby waives presentment, demand, protest and notice of any kind. No failure to
exercise, and no delay in exercising, any rights hereunder on the part of the
holder hereof shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York, United States.
LOC 2003 TRUST
By WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Trustee
By _________________________________
Name:
Title:
C-2
LOANS, MATURITIES AND PAYMENTS OF PRINCIPAL
================ ============== ============= =============== ============= ============ =============== ================ =========
AMOUNT OF UNPAID
AMOUNT OF MATURITY OF INTEREST INTEREST PRINCIPAL PRINCIPAL NOTATION
DATE LOANS TYPE OF LOAN LOANS RATE PERIOD CONVERTED, BALANCE MADE BY
PAID OR
PREPAID
================ ============== ============= =============== ============= ============ =============== ================ =========
- ---------------- -------------- ------------- --------------- ------------- ------------ --------------- ---------------- ---------
- ---------------- -------------- ------------- --------------- ------------- ------------ --------------- ---------------- ---------
- ---------------- -------------- ------------- --------------- ------------- ------------ --------------- ---------------- ---------
- ---------------- -------------- ------------- --------------- ------------- ------------ --------------- ---------------- ---------
- ---------------- -------------- ------------- --------------- ------------- ------------ --------------- ---------------- ---------
- ---------------- -------------- ------------- --------------- ------------- ------------ --------------- ---------------- ---------
- ---------------- -------------- ------------- --------------- ------------- ------------ --------------- ---------------- ---------
================ ============== ============= =============== ============= ============ =============== ================ =========
C-3
EXHIBIT D
FORM OF FIRST AMENDMENT TO SECURITY AGREEMENT
FIRST AMENDMENT TO SECURITY AGREEMENT
This AMENDMENT, dated as of December 22, 2004 (this "AMENDMENT"), is made
to that certain Security Agreement, dated as of August 8, 2003 (as amended,
supplemented and modified through the date hereof, the "SECURITY AGREEMENT"),
made by LOC 2003 TRUST (the "GRANTOR"), in favor of CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands branch, as collateral agent (the "COLLATERAL
AGENT") for the secured parties named therein (the "SECURED PARTIES").
PRELIMINARY STATEMENT:
The Grantor has requested that the Collateral Agent and the other Secured
Parties agree to the amendment of the Security Agreement as set forth herein,
and the Secured Parties have agreed to such request, subject to the terms and
conditions of this Amendment. Therefore, for good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
SECTION 1 DEFINITIONS.
Capitalized terms used but not defined herein have the meanings assigned to
such terms in the Security Agreement.
SECTION 2 AMENDMENT.
The Security Agreement is amended as follows:
(a) Section 1.01 of the Security Agreement is hereby amended by deleting in
its entirety the definition of "Pledge Agreement Collateral".
(b) Section 2.1 of the Security Agreement is hereby amended by deleting the
last paragraph of such Section.
(c) Section 3.2 is hereby amended by deleting the phrase "and each "Deposit
Account", as such term is defined in each Pledge Agreement" from the end of such
Section.
(d) Section 3.8 is hereby amended by deleting the phrase "and the Pledge
Agreement Collateral" from the end of the first sentence of such Section.
SECTION 3 REPRESENTATIONS AND WARRANTIES.
The Grantor represents and warrants that:
(e) the representations and warranties contained in Article III of the
Security Agreement (with each reference therein to "this Agreement", "hereunder"
and words of like import referring to the Security Agreement being deemed to be
a reference to this Amendment and the Security Agreement, as amended hereby) are
true and correct on and as of the date hereof as though made on and as of such
date; and
(f) no event has occurred and is continuing, or would result from the
execution and delivery of this Amendment, that constitutes a Default or an Event
of Default.
SECTION 4 EFFECT ON LOAN DOCUMENTS.
Except as specifically provided above, the Security Agreement and the other
Loan Documents (as amended through the date hereof) shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed. The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
the Secured Parties under the Security Agreement or the other Loan Documents,
nor constitute a waiver of any provision of the Security Agreement or the other
Loan Documents.
SECTION 5 COSTS, EXPENSES AND TAXES.
The Grantor agrees to pay on demand all costs and expenses of the
Collateral Agent in connection with the preparation, execution and delivery of
this Amendment and the other instruments and documents to be delivered
hereunder, including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for the Collateral Agent with respect thereto, and all costs
and expenses (including, without limitation, counsel fees and expenses), if any,
in connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Amendment or such other instruments and
documents. In addition, the Grantor agrees to pay any and all stamp and other
taxes payable or determined to be payable in connection with the execution and
delivery of this Amendment and the other instruments and documents to be
delivered hereunder, and agree jointly and severally to save the Lenders and the
Collateral Agent harmless from and against any and all liabilities with respect
to or resulting from any delay in paying or omission to pay such taxes.
SECTION 6 EXECUTION IN COUNTERPARTS.
This Amendment may be executed in any number of separate counterparts, each
of which shall constitute an original but all of which when taken together shall
constitute but one agreement.
SECTION 7 GOVERNING LAW.
This Amendment shall be governed by and construed in accordance with the
law of the State of New York.
[Signatures To Follow]
D-2
IN WITNESS WHEREOF, each of the parties
hereto has caused this Amendment to be
duly executed and delivered buy its duly
authorized officer as of the date first
above written.
LOC 2003 TRUST
By WILMINGTON TRUST COMPANY, not
in its individual capacity but
solely as Trustee
By _________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands branch, as
Collateral Agent
By _________________________________
Name:
Title:
By _________________________________
Name:
Title:
D-3