Exhibit (4)-35
Unicom Corporation
Form 10-K File No. 1-11375
[EXECUTION COPY]
U.S. $200,000,000
CREDIT AGREEMENT
Dated as of November 22, 1994
Among
UNICOM ENTERPRISES INC.
as Borrower
THE BANKS NAMED HEREIN
as Banks
and
CITIBANK, N.A.
as Agent
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section Page
------- ----
1.01. Certain Defined Terms................................. 1
1.02. Computation of Time Periods........................... 18
1.03. Accounting Terms...................................... 18
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01. The Advances.......................................... 18
2.02. Making the Advances................................... 19
2.03. Computations of Outstandings.......................... 20
2.04. Fees.................................................. 21
2.05. Reduction of the Commitments.......................... 21
2.06. Repayment of Advances................................. 22
2.07. Interest on Advances.................................. 22
2.08. Additional Interest on Eurodollar Advances............ 23
2.09. Interest Rate Determination........................... 23
2.10. Conversion of Advances................................ 25
2.11. Optional Prepayments of Advances...................... 26
2.12. Mandatory Prepayments................................. 26
2.13. Increased Costs....................................... 27
2.14. Illegality............................................ 29
2.15. Payments and Computations............................. 29
2.16. Taxes................................................. 31
2.17. Sharing of Payments, Etc.............................. 33
2.18. Extension of Termination Date......................... 34
ARTICLE III
LETTERS OF CREDIT
3.01. LC Banks.............................................. 36
3.02. Letters of Credit..................................... 36
3.03. LC Bank Fees.......................................... 37
3.04. Reimbursement to LC Banks............................. 37
3.05. Obligations Absolute.................................. 38
3.06. Liability of LC Banks and the Lenders................. 39
ARTICLE IV
CONDITIONS OF LENDING
4.01. Conditions Precedent to Initial Extensions of Credit.. 40
4.02. Conditions Precedent to Each Extension of Credit...... 43
4.03. Condition Precedent to Certain Extensions of Credit... 43
4.04. Reliance on Certificates.............................. 44
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Section Page
------- ----
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01. Representations and Warranties of the Borrower........ 45
ARTICLE VI
COVENANTS OF THE BORROWER
6.01. Affirmative Covenants................................. 48
6.02. Negative Covenants.................................... 53
ARTICLE VII
EVENTS OF DEFAULT
7.01. Events of Default..................................... 56
7.02. Remedies.............................................. 60
ARTICLE VIII
THE AGENT
8.01. Authorization and Action.............................. 62
8.02. Agent's Reliance, Etc................................. 62
8.03. Citibank and Affiliates............................... 63
8.04. Lender Credit Decision................................ 63
8.05. Indemnification....................................... 63
8.06. Successor Agent....................................... 64
ARTICLE IX
MISCELLANEOUS
9.01. Amendments, Etc....................................... 65
9.02. Notices, Etc.......................................... 66
9.03. No Waiver; Remedies................................... 66
9.04. Costs, Expenses, Taxes and Indemnification............ 66
9.05. Right of Set-Off...................................... 68
9.06. Binding Effect........................................ 69
9.07. Assignments and Participations........................ 69
9.08. WAIVER OF JURY TRIAL.................................. 74
9.09. Consent............................................... 74
9.10. Governing Law......................................... 74
9.11. Relation of the Parties; No Beneficiary............... 75
9.12. Execution in Counterparts............................. 75
9.13. Severability.......................................... 75
9.14. Headings.............................................. 75
9.15. Entire Agreement...................................... 75
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Schedule I - List of Applicable Lending Offices
Exhibit A - Form of Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Conversion
Exhibit C - Form of Lender Assignment
Exhibit D - Form of LC Bank Agreement
Exhibit E - Form of Guaranty
Exhibit F - Form of Opinion of Counsel for the Borrower and the Parent
Exhibit G - Form of Opinion of Special New York Counsel to the Agent
Exhibit H - Terms of Subordination
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CREDIT AGREEMENT
Dated as of November 22, 1994
THIS CREDIT AGREEMENT is made by and among:
(i) Unicom Enterprises Inc., an Illinois corporation (the "BORROWER"),
(ii) the banks (the "BANKS") listed on the signature pages hereof and the
other Lenders (as hereinafter defined) from time to time party hereto,
and
(iii) Citibank, N.A. ("CITIBANK"), as agent (the "AGENT") for the Lenders
hereunder.
PRELIMINARY STATEMENT
The Borrower has requested the Banks to provide the credit facilities
hereinafter described in the amounts and on the terms and conditions set forth
herein. The Banks have so agreed on the terms and conditions set forth herein,
and the Agent has agreed to act as agent for the Lenders on such terms and
conditions.
Accordingly, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ADVANCE" means an advance by a Lender to the Borrower pursuant to Section
2.01 (or deemed made pursuant to Section 3.04(d)) as part of a Borrowing and
refers to an Alternate Base Rate Advance or a Eurodollar Rate Advance, each
of which shall be a "Type" of Advance. All Advances by a Lender of the same
Type, having the same Interest Period and made or Converted on the same day
shall be
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deemed to be a single Advance by such Lender until repaid or next Converted.
"AFFILIATE" means, with respect to any Person, any other Person directly
or indirectly controlling (including but not limited to all directors and
officers of such Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to control another entity
if such Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of such entity, whether
through the ownership of voting securities, by contract, or otherwise.
"ALTERNATE BASE RATE" means a fluctuating interest rate per annum as shall
be in effect from time to time which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by Citibank in New York,
New York, from time to time, as Citibank's base rate;
(b) 1/2 of one percent per annum above the latest three-week moving
average of secondary market morning offering rates in the United States
for three-month certificates of deposit of major United States money
market banks, such three-week moving average being determined weekly by
the Agent on the basis of such rates reported by certificate of deposit
dealers to and published by the Federal Reserve Bank of New York or, if
such publication shall be suspended or terminated, on the basis of
quotations for such rates received by the Agent from three New York
certificate of deposit dealers of recognized standing selected by the
Agent, in either case adjusted to the nearest 1/4 of one percent or, if
there is no nearest 1/4 of one percent, to the next higher 1/4 of one
percent; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
Each change in the Alternate Base Rate shall take effect concurrently with
any change in such base rate, such moving average or the Federal Funds Rate.
"ALTERNATE BASE RATE ADVANCE" means an Advance that bears interest as
provided in Section 2.07(a).
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"APPLICABLE LAW" means, with respect to any matter or Person, any law,
rule, regulation, order, decree, or other requirement having the force of law
relating to such matter or Person and, where applicable, any interpretation
thereof by any authority having jurisdiction with respect thereto or charged
with the administration thereof.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender, such
Lender's Domestic Lending Office, in the case of an Alternate Base Rate
Advance, and such Lender's Eurodollar Lending Office, in the case of a
Eurodollar Rate Advance.
"APPLICABLE MARGIN" means, on any date, as adjusted from time to time as
set forth below, for a Eurodollar Rate Advance or an Alternate Base Rate
Advance, the basis points (1 basis point equaling 0.01%) per annum set forth,
in the columns identified as Level 1, Level 2 or Level 3 below, opposite the
rate applicable to such Advance:
Level 1 Level 2 Level 3
------------ -------------- ------------
S&P A- or better BBB- or better BB+ or below
Moody's A3 or better Baa3 or better Ba1 or below
D&P A- or better BBB- or better BB+ or below
Eurodollar Rate 50.00 80.00 125.00
Alternate Base Rate 0 0 0
(Basis Points Per Annum)
The Applicable Margin shall be determined on the basis of the two highest
ratings applicable to the First Mortgage Bonds at the time of
determination; provided, however, if there shall be ratings from only two
Rating Agencies or there is a "split" rating, the Applicable Margin shall
be determined on the basis of the lower of the two ratings then
applicable; provided, further, that if no Rating Agency shall then be
rating the First Mortgage Bonds, then the Applicable Margin shall be that
corresponding to Level 3.
The Applicable Margins shall be increased or decreased in accordance with
this definition upon any change in the applicable ratings, and such
increased or decreased Applicable Margins shall be effective from the date
of announcement of such new ratings by the applicable Rating Agency. The
Borrower agrees to notify the Agent promptly upon
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each change in any rating of the First Mortgage Bonds.
In addition, each of the foregoing Applicable Margins applicable to
Eurodollar Rate Advances shall be increased by 5 basis points (0.05%) per
annum in the event that, and at all times during which, the principal
amount outstanding hereunder exceeds 50% of the aggregate amount of the
Commitments.
"APPLICABLE RATE" means:
(i) in the case of each Alternate Base Rate Advance, a rate per annum
equal at all times to the sum of the Alternate Base Rate plus the
Applicable Margin in effect from time to time; and
(ii) in the case of each Eurodollar Rate Advance comprising part of
the same Borrowing, a rate per annum during each Interest Period equal at
all times to the sum of the Eurodollar Rate for such Interest Period plus
the Applicable Margin in effect from time to time during such Interest
Period.
"AVAILABLE COMMITMENT" means, for each Lender on any day, the unused
portion of such Lender's Commitment, computed after giving effect to all
Extensions of Credit or prepayments to be made on such day and the
application of proceeds therefrom.
"AVAILABLE COMMITMENTS" means the aggregate of the Lenders' Available
Commitments hereunder.
"BANKRUPTCY CODE" means the Bankruptcy Reform Act of 1978, as amended,
as the same may be further amended, and any other applicable state or
federal law with respect to bankruptcy, liquidation, insolvency or
reorganization.
"BORROWING" means a borrowing consisting of simultaneous Advances of
the same Type, having the same Interest Period (in the case of Eurodollar
Rate Advances) and made or Converted on the same day by each of the
Lenders, ratably in accordance with their respective Percentages. Any
Borrowing consisting of Advances of a particular Type may be referred to
as being a Borrowing of such "Type".
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All Advances of the same Type, having the same Interest Period (in the
case of Eurodollar Rate Advances) and made or Converted on the same day
shall be deemed a single Borrowing hereunder until repaid or next
Converted.
"BUSINESS DAY" means a day of the year on which banks are not required
or authorized to close in New York City or Chicago, and, if the applicable
Business Day relates to any Eurodollar Rate Advance, on which dealings in
Dollar deposits are carried on in the London interbank market.
"CAPITALIZED LEASE" means, with respect to any Person, any lease which,
in accordance with GAAP, has been, or should be, recorded as a capitalized
lease in such Person's financial statements.
"CODE" means the Internal Revenue Code of 1986 or any successor
statute, and the regulations promulgated and rulings issued thereunder,
each as in effect and amended or modified from time to time. References
herein to sections of the Code shall be deemed to refer to the
corresponding sections of any successor statute.
"COMMITMENT" means, for each Lender, the obligation of such Lender to
make Advances to the Borrower and to participate in Extensions of Credit
resulting from the issuance (or extension, modification or amendment) of
any Letter of Credit in an aggregate amount no greater than the amount set
forth opposite such Lender's name on the signature pages hereof or, if
such Lender has entered into one or more Lender Assignments, set forth for
such Lender in the Register maintained by the Agent pursuant to Section
9.07(c), in each such case as such amount may be reduced from time to time
pursuant to Section 2.05. "COMMITMENTS" means the total of the Lenders'
Commitments hereunder. The Commitments shall in no event exceed
$200,000,000.
"COMMITMENT FEE" means, with respect to any Lender, a fee that shall be
payable on the average daily Available Commitment of such Lender from time
to time, at the rate per annum set forth below. As described below, the
Commitment Fee will be based upon the ratings of the First
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Mortgage Bonds as set forth in the columns identified as Level 1, Level 2
or Level 3:
Level 1 Level 2 Level 3
------------ -------------- ------------
S&P A- or better BBB- or better BB+ or below
Moody's A3 or better Baa3 or better Ba1 or below
D&P A- or better BBB- or better BB+ or below
------------ -------------- ------------
Commitment Fee 20.00 30.00 40.00
(Basis Points Per Annum)
The Commitment Fee shall be determined on the basis of the two highest
ratings applicable to the First Mortgage Bonds at the time of
determination; provided, however, if there shall be ratings from only two
Rating Agencies or there is a "split" rating, the Commitment Fee shall be
determined on the basis of the lower of the two ratings then applicable;
provided, further, that if no Rating Agency shall then be rating the First
Mortgage Bonds, then the Commitment Fee shall be that corresponding to
Level 3.
The Commitment Fee shall be increased or decreased in accordance with this
definition upon any change in the applicable ratings, and such increased
or decreased Commitment Fee shall be effective from the date of
announcement of such new ratings by the applicable Rating Agency. The
Borrower agrees to notify the Agent promptly upon each change in any
rating of the First Mortgage Bonds.
"COMMONWEALTH" means Commonwealth Edison Company, an Illinois
corporation.
"CONTINGENT OBLIGATION" means, as to any Person, the undrawn face
amount of any letters of credit issued for the account of such Person and
shall also mean any obligation of such Person guaranteeing or in effect
guaranteeing any Debt, leases, dividends, letters of credit, or other
obligations ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not
contingent, (a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or
supply funds (i) for the purchase or payment of any such primary
obligation or (ii) to maintain working capital or equity capital of the
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primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (c) to purchase property, securities, or services
primarily for the purpose of assuring the obligee under any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation, or (d) otherwise to assure or hold harmless the
obligee under such primary obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable amount of the
primary obligation or, where such Contingent Obligation is specifically
limited to a portion of any such primary obligation, that portion to
which it is limited or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person
is required to perform thereunder) as determined by such Person in good
faith. For purposes of computing the consolidated Debt of any Person, the
amount of any primary obligation of any Subsidiary of such Person and the
amount of any Contingent Obligation of such Person corresponding to such
primary obligation shall only be counted once (i.e., without duplication).
"CONVERT", "CONVERSION" and "CONVERTED" each refers to a conversion
of Advances of one Type into Advances of another Type, or to the selection
of a new, or the renewal of the same, Interest Period for Eurodollar Rate
Advances, as the case may be, pursuant to Section 2.09 or 2.10.
"D&P" means Duff & Phelps, Inc. or any successor thereto.
"DEBT" of a Person means (without duplication) (i) indebtedness of
such Person for borrowed money, (ii) obligations of such Person evidenced
by bonds, debentures, notes, or other similar instruments, (iii)
obligations of such Person to pay the deferred purchase price of property
or services, (iv) obligations of such Person as lessee under Capitalized
Leases, (v) indebtedness of such Person consisting of unpaid reimbursement
obligations in respect of all drafts
8
drawn or demands for payment made under letters of credit issued for the
account of such Person, (vi) all Contingent Obligations of such Person,
(vii) liabilities of such Person in respect of unfunded vested benefits
under Pension Plans covered by Title IV of ERISA (other than Multiemployer
Plans), and (viii) withdrawal liability of such Person incurred under
ERISA to any Multiemployer Plan (including, without limitation, with
respect to each of the foregoing clauses (i) through (vi), any such
indebtedness, obligations, or liabilities that is non-recourse to the
credit of such Person but is secured by assets of such Person, and
otherwise excluding any such indebtedness, obligations or liabilities that
is non-recourse to the credit of such Person; provided, however, that Debt
of the Borrower shall not include any Contingent Obligations of the
Borrower that are non-recourse to the credit of the Borrower and are
secured only by Liens permitted by Section 6.02(e)(ii)).
"DEFAULT RATE" means a rate per annum equal at all times to 2% per
annum above (i) in the case of a Eurodollar Rate Advance, the Applicable
Rate therefore immediately prior to such Default Rate becoming applicable,
and (ii) in all other cases, the Alternate Base Rate.
"DOLLARS" and the sign "$" each means lawful money of the United
States.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, the
office or Affiliate of such Lender specified as its "Domestic Lending
Office" opposite its name on Schedule I hereto or in the Lender Assignment
pursuant to which it became a Lender, or such other office or Affiliate of
such Lender as such Lender may from time to time specify in writing to the
Borrower and the Agent.
"EFFECTIVE DATE" means the date on which each of the conditions
precedent enumerated in Section 4.01 shall have been fulfilled to the
satisfaction of the Lenders, the Agent and the Borrower.
"ELIGIBLE ASSIGNEE" means (a) any Lender; (b) any other commercial
bank or trust company organized under the laws of the United States, or
any State thereof; (c) any other commercial bank
9
organized under the laws of any other country that is a member of the
OECD, or a political subdivision of any such country, provided that such
bank is acting through a branch or agency located in the United States;
(d) the central bank of any country that is a member of the OECD; and (e)
any other commercial bank or other financial institution engaged generally
in the business of extending credit or purchasing debt instruments;
provided, however, that (i) any such Person shall also (A) have
outstanding unsecured long-term indebtedness that is rated A-, A3 or A- or
better, or unsecured short-term indebtedness that is rated A-2, P-2 or D-2
or better, by any two of S&P, Moody's or D&P, respectively, and (B) have
combined capital and surplus (as established in its most recent report of
condition to its primary regulator) of not less than $250,000,000 (or its
equivalent in foreign currency), (ii) any Person described in clause (c),
(d), or (e), above, shall, on the date on which it is to become a Lender
hereunder, (A) be entitled to receive payments hereunder without deduction
or withholding of any United States Federal income taxes (as contemplated
by Section 2.16) and (B) not be incurring any losses, costs or expenses of
the type for which such Person could demand payment under Section 2.13,
and (iii) any Person described in clause (b), (c), (d), or (e), above,
shall, in addition, be reasonably acceptable to the Agent and each LC Bank
based upon its then-existing credit criteria.
"ENVIRONMENTAL LAWS" means any federal, state or local laws,
ordinances or codes, rules, orders, or regulations relating to pollution
or protection of the environment, including, without limitation, laws
relating to Hazardous Substances, laws relating to reclamation of land and
waterways and laws relating to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes into the environment (including,
without limitation, ambient air, surface water, ground water, land surface
or subsurface strata) or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollution, contaminants,
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chemicals, industrial or toxic wastes or other Hazardous Substances.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA also refer to any successor sections.
"ERISA AFFILIATE" of any Person means any trade or business (whether
or not incorporated) that is a member of a group of which such Person is a
member and that is under common control with such Person within the
meaning of Section 414 of the Code.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender, the
office or Affiliate of such Lender specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Lender Assignment
pursuant to which it became a Lender (or, if no such office is specified,
its Domestic Lending Office), or such other office or Affiliate of such
Lender as such Lender may from time to time specify in writing to the
Borrower and the Agent.
"EURODOLLAR RATE" means, for each Interest Period for each Eurodollar
Rate Advance made as part of the same Borrowing, an interest rate per
annum equal to the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in Dollars are offered by the principal
office of each of the Reference Banks in London, England to prime banks in
the London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially
equal to such Reference Bank's Eurodollar Rate Advance made as part of
such Borrowing and for a period equal to such Interest Period. The
Eurodollar Rate for the Interest Period for each Eurodollar Rate Advance
made as part of the same
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Borrowing shall be determined by the Agent on the basis of applicable
rates furnished to and received by the Agent from the Reference Banks two
Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.09.
"EURODOLLAR RATE ADVANCE" means an Advance that bears interest as
provided in Section 2.07(b).
"EURODOLLAR RESERVE PERCENTAGE" of any Lender for each Interest
Period for each Eurodollar Rate Advance means the reserve percentage
applicable to such Lender during such Interest Period (or if more than one
such percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any such
percentage shall be so applicable) under Regulation D or other regulations
issued from time to time by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) then applicable to such Lender with respect
to liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"EVENT OF DEFAULT" has the meaning assigned to that term in Section
7.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, and the
regulations promulgated thereunder, in each case as amended from time to
time.
"EXTENSION OF CREDIT" means (i) the making of a Borrowing (including,
without limitation, any Conversion), (ii) the issuance of a Letter of
Credit, or (iii) the amendment of any Letter of Credit having the effect
of extending the stated termination date thereof, increasing the LC
Outstandings thereunder, or otherwise altering any of the material terms
or conditions thereof.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
12
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing selected
by it.
"FEE LETTER" means that certain letter agreement, dated October 11,
1994, from Citibank to, and accepted by, the Borrower.
"FIRST MORTGAGE BONDS" means the bonds issued by Commonwealth
pursuant to the Indenture.
"GAAP" means generally accepted accounting principles in the United
States in effect from time to time.
"GOVERNMENTAL APPROVAL" means any authorization, consent, approval,
license, franchise, lease, ruling, tariff, rate, permit, certificate,
exemption of, or filing or registration with, any governmental authority
or other legal or regulatory body required in connection with the
execution, delivery or performance of any Loan Document.
"GUARANTY" means the Guaranty, dated as of the date hereof, by the
Parent in favor of the Agent and the Lenders, in substantially the form of
Exhibit E hereto.
"HAZARDOUS SUBSTANCE" means any waste, substance, or material
identified as hazardous, dangerous or toxic by any office, agency,
department, commission, board, bureau, or instrumentality of the United
States or of the State or locality in which the same is located having or
exercising jurisdiction over such waste, substance or material.
"INDENTURE" means that certain Mortgage of Commonwealth to Bank of
America NT & SA (successor by merger to Continental Bank, National
Association), and M.J. Kruger, as trustees, dated
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as of July 1, 1923, as the same has been and may from time to time be
amended or supplemented and in effect.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance made as
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Advance into
such Eurodollar Rate Advance and ending on the last day of the period
selected by the Borrower pursuant to the provisions below and, thereafter,
each subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions below. The duration
of each such Interest Period shall be 1, 2, 3 or 6 months, in each case as
the Borrower may select, upon notice received by the Agent not later than
11:00 A.M. on the third Business Day prior to the first day of such
Interest Period; provided, however, that:
(i) the Borrower may not select any Interest Period that ends
after the Termination Date;
(ii) Interest Periods commencing on the same date for Eurodollar
Rate Advances made as part of the same Borrowing shall be of the same
duration;
(iii) if any Interest Period begins on a day for which there
is no corresponding day in the calendar month during which such
Interest Period is to end, such Interest Period shall end on the last
Business Day of such month; and
(iv) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, provided that if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day.
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"LC BANK" means a Lender designated by the Borrower, and acceptable
to the Agent, in accordance with Section 3.01 as the issuer of a Letter of
Credit pursuant to an LC Bank Agreement.
"LC BANK AGREEMENT" means an agreement between an LC Bank and the
Borrower providing for the issuance of one or more Letters of Credit, in
substantially the form of Exhibit D hereto.
"LC OUTSTANDINGS" means, for any Letter of Credit on any date of
determination, the maximum amount available to be drawn under such Letter
of Credit (assuming the satisfaction of all conditions for drawing
enumerated therein).
"LC PAYMENT NOTICE" has the meaning assigned to that term in Section
3.04(b).
"LENDER ASSIGNMENT" means an assignment and acceptance agreement
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"LENDERS" means the Banks listed on the signature pages hereof, each
Eligible Assignee that shall become a party hereto pursuant to Section
9.07 and, if and to the extent so provided in Section 3.04(c), each LC
Bank.
"LETTER OF CREDIT" means a letter of credit issued by an LC Bank
pursuant to Section 3.02, as such letter of credit may from time to time
be amended, modified or extended in accordance with the terms of this
Agreement and the LC Bank Agreement to which it relates.
"LIEN" has the meaning assigned to that term in Section 6.02(e).
"LOAN DOCUMENTS" means this Agreement, the Notes, the Guaranty, each
LC Bank Agreement and all other agreements, instruments and documents now
or hereafter executed and delivered pursuant hereto or thereto.
"MAJORITY LENDERS" means, on any date of determination, Lenders that,
collectively, on such date have in the aggregate at least 66-2/3% of the
Commitments (without giving effect to any
15
termination in whole of the Commitments pursuant to Section 7.02). Any
determination of those Lenders constituting the Majority Lenders shall be
made by the Agent and shall be conclusive and binding on all parties,
absent manifest error.
"MATERIAL ADVERSE EFFECT" means, relative to any occurrence of
whatever nature (including, without limitation, any adverse determination
in any litigation, arbitration, or governmental investigation or
proceeding), a material adverse effect on:
(a) the consolidated business, assets, revenues, financial
condition, results of operations, operations, or prospects of the
Borrower and its Subsidiaries; or
(b) the ability of the Borrower to make any payment when due
under this Agreement or to perform any of its other obligations under
the Loan Documents.
"MOODY'S" means Moody's Investors Service, Inc. or any successor
thereto.
"MULTIEMPLOYER PLAN" means a "multiemployer plan", as such term is
defined in Section 4001(a)(3) of ERISA, that is maintained for employees
of the Borrower or any ERISA Affiliate of the Borrower.
"NORTHWIND" means Unicom Thermal Technologies Inc., an Illinois
corporation, all of whose common stock is on the date hereof owned by the
Borrower.
"NOTE" means a promissory note of the Borrower payable to the order
of a Lender, in substantially the form of Exhibit A hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from the
Advances made by such Lender.
"NOTICE OF BORROWING" has the meaning assigned to that term in
Section 2.02(a).
"NOTICE OF CONVERSION" has the meaning assigned to that term in
Section 2.10(a).
16
"OECD" means the Organization for Economic Cooperation and
Development.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor entity) established under ERISA.
"PARENT" means Unicom Corporation, an Illinois corporation.
"PENSION PLAN" means a "pension plan", as such term is defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
Multiemployer Plan), and to which the Borrower or any ERISA Affiliate of
the Borrower may have any liability, including any liability by reason of
having been a substantial employer within the meaning of Section 4063 of
ERISA at any time during the preceding five years, or by reason of being
deemed to be a contributing sponsor under Section 4069 of ERISA.
"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 of the Commitments on such date (in each case, without giving
effect to any termination of the Commitments pursuant to Section 7.02),
and multiplying the quotient so obtained by 100%.
"PERSON" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any political
subdivision or agency thereof.
"RATING AGENCY" means D&P, Moody's or S&P.
"REFERENCE BANKS" means Citibank, Morgan Guaranty Trust Company of
New York and Toronto Dominion (Texas), Inc., or any additional or
substitute Lenders as may be selected from time to time to act as
Reference Banks hereunder by the Agent, the Majority Lenders and the
Borrower.
"REGISTER" has the meaning assigned to that term in Section 9.07(c).
"REQUEST FOR ISSUANCE" has the meaning assigned to that term in
Section 3.02(a).
17
"S&P" means Standard & Poor's Ratings Group or any successor thereto.
"SEC" means the Securities and Exchange Commission and any entity
succeeding to its functions under the Securities Act of 1933, as amended,
or the Exchange Act.
"SIGNIFICANT SUBSIDIARY" means Northwind and any other Subsidiary of
the Borrower that, on a consolidated basis with any of its Subsidiaries as
of any date of determination, accounts for more than 10% of the
consolidated assets (valued at book value) of the Borrower and its
Subsidiaries.
"SUBSIDIARY" means, with respect to any Person, any corporation or
unincorporated entity of which more than 50% of the outstanding capital
stock (or comparable interest) having ordinary voting power (irrespective
of whether at the time capital stock (or comparable interest) of any other
class or classes of such corporation or entity shall or might have voting
power upon the occurrence of any contingency) is at the time directly or
indirectly owned by said Person (whether directly or through one of more
other Subsidiaries). In the case of an unincorporated entity, a Person
shall be deemed to have more than 50% of interests having ordinary voting
power only if such Person's vote in respect of such interests comprises
more than 50% of the total voting power of all such interests in the
unincorporated entity.
"TERMINATION DATE" means, as to any Lender, the earlier to occur of
(i) November 22, 1997 or, as to each Lender that has consented to the same
pursuant to Section 2.18, such later date to which the Termination Date
for such Lender is extended in accordance with Section 2.18, and (ii) the
date of termination or reduction in whole of the Commitments pursuant to
Section 2.05 or 7.02.
"TYPE" has the meaning assigned to that term (i) in the definition of
"ADVANCE" when used in such context and (ii) in the definition of
"BORROWING" when used in such context.
18
"UNMATURED DEFAULT" means an event that, with the giving of notice or
lapse of time, or both, would constitute an Event of Default.
"WELFARE PLAN" means a "welfare plan", as such term is defined in
Section 3(1) of ERISA.
SECTION 1.02. COMPUTATION OF TIME PERIODS. Unless otherwise indicated,
each reference in this Agreement to a specific time of day is a reference to New
York City time. In the computation of periods of time under this Agreement, any
period of a specified number of days or months shall be computed by including
the first day or month occurring during such period and excluding the last such
day or month. In the case of a period of time "FROM" a specified date "TO" or
"UNTIL" a later specified date, the word "FROM" means "FROM AND INCLUDING" and
the words "TO" and "UNTIL" each means "TO BUT EXCLUDING".
SECTION 1.03. ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. THE ADVANCES. (a) Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make Advances to the Borrower and
to participate in the issuance of Letters of Credit (and the LC Outstandings
thereunder) from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an aggregate outstanding amount not
to exceed on any day such Lender's Available Commitment (after giving effect to
all Extensions of Credit to be made on such day and the application of the
proceeds thereof). Each Borrowing (other than a Borrowing deemed made under
Section 3.04(d)) shall be in an aggregate amount not less than $5,000,000, or an
integral multiple of $1,000,000 in excess thereof (or such lesser amount as
shall be equal to the total amount of the Available Commitments on such date,
after giving effect to all other Extensions of Credit to be made on such date),
and shall consist of Advances of the same Type, having the same Interest Period
(in the case of Eurodollar Rate Advances) and made or Converted on the same day
by the Lenders ratably according to their
19
respective Percentages. Within the limits of each Lender's Commitment and
subject to the conditions hereinafter set forth, the Borrower may request
Extensions of Credit hereunder, prepay Advances, or reduce or cancel Letters of
Credit, and use the resulting increase in the Available Commitments for further
Extensions of Credit in accordance with the terms hereof.
(b) In no event shall the Borrower be entitled to request or receive any
Extensions of Credit that would cause the principal amount outstanding hereunder
to exceed the Commitments.
SECTION 2.02. MAKING THE ADVANCES. (a) Each Borrowing shall be made on
notice, given not later than 10:30 A.M., in the case of Alternate Base Rate
Advances, or 11:30 A.M., in the case of Eurodollar Rate Advances, (i) on the
third Business Day prior to the date of the proposed Borrowing, in the case of a
Borrowing comprised of Eurodollar Rate Advances, and (ii) on the date of the
proposed Borrowing, in the case of a Borrowing comprised of Alternate Base Rate
Advances, in each case by the Borrower to the Agent, which shall give to each
Lender prompt notice thereof by telecopier, telex, or cable. Each such notice
of a Borrowing (a "NOTICE OF BORROWING") shall be by telecopier, telex or cable,
in substantially the form of Exhibit B-1 hereto, specifying therein the
requested (A) date of such Borrowing, (B) Type of Advances comprising such
Borrowing, (C) aggregate amount of such Borrowing, and (D) in the case of a
Borrowing comprised of Eurodollar Rate Advances, the Interest Period for each
such Advance. Each Lender shall, before 12:00 noon on the date of such
Borrowing, make available for the account of its Applicable Lending Office to
the Agent at its address referred to in Section 9.02, in same day funds, such
Lender's ratable portion of such Borrowing. After the Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article IV,
the Agent will make such funds available to the Borrower at the Agent's
aforesaid address.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing which the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill, on or before the date specified in such
Notice of Borrowing for such Borrowing, the applicable conditions set forth in
Article IV, including,
20
without limitation, any loss, cost, or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund the Advance to be made by such Lender as part of such Borrowing when
such Advance, as a result of such failure, is not made on such date.
(c) Unless the Agent shall have received notice from a Lender prior to the
date of any Borrowing that such Lender will not make available to the Agent such
Lender's Advance as part of such Borrowing, the Agent may assume that such
Lender has made such Advance available to the Agent on the date of such
Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such Advance available to the Agent, such Lender and the Borrower
severally agree to repay to the 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
Agent, at (i) in the case of the Borrower, the interest rate applicable at the
time to Advances comprising such Borrowing and (ii) in the case of such Lender,
the Federal Funds Rate. If such Lender shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Lender's
Advance as part of such Borrowing for purposes of this Agreement.
(d) The failure of any Lender to make the Advance to be made by it as part
of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender shall
be responsible for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
(e) Notwithstanding anything contained herein to the contrary, (i) not
more than two Borrowings may be made on the same Business Day and (ii) not more
than seven Borrowings may be outstanding at any one time.
SECTION 2.03. COMPUTATIONS OF OUTSTANDINGS. Whenever reference is made
in this Agreement to the principal amount outstanding on any date under this
Agreement, such reference shall refer to the sum of (i) the aggregate principal
amount of all Advances outstanding on such date plus (ii) the aggregate LC
Outstandings of all Letters of Credit outstanding on such
21
date, in each case after giving effect to all Extensions of Credit to be made on
such date and the application of the proceeds thereof. References to the unused
portion of the Commitments shall refer to the excess, if any, of the Commitments
over the principal amount outstanding hereunder; and references to the unused
portion of any Lender's Commitment shall refer to such Lender's Percentage of
the unused Commitments.
SECTION 2.04. FEES. (a) The Borrower agrees to pay to the Agent for the
account of each Lender the Commitment Fee from the date hereof, in the case of
each Bank, and from the effective date specified in the Lender Assignment
pursuant to which it became a Lender, in the case of each other Lender, until
the Termination Date, payable quarterly in arrears on the last day of each
March, June, September and December during the term of such Lender's Commitment,
commencing on the first such date to occur following the date hereof, and on the
Termination Date.
(b) The Borrower agrees to pay to the Agent for the account of each Bank a
participation fee equal to (i) 0.125% of such Bank's Commitment, if the amount
of such Bank's initial commitment was equal to or in excess of $15,000,000 and
less than $25,000,000, or (ii) 0.175% of such Bank's Commitment, if the amount
of such Bank's initial commitment was equal to or in excess of $25,000,000, such
fee to be payable on the Effective Date.
(c) The Borrower agrees to pay to the Agent for the account of each Lender
a commission on such Lender's Percentage of the average daily aggregate amount
of the LC Outstandings from the date hereof until the Termination Date at a rate
per annum equal to the Applicable Margin with respect to Eurodollar Rate
Advances from time to time, payable quarterly in arrears on the last day of each
March, June, September and December, commencing on the first such date to occur
following the date hereof, and on the Termination Date.
(d) In addition to the fees provided for in subsections (a), (b) and (c),
above, the Borrower shall pay to the Agent, for the account of the Agent, such
other fees as are provided for in the Fee Letter, at the times and in the manner
set forth therein.
SECTION 2.05. REDUCTION OF THE COMMITMENTS. The Borrower shall have the
right, upon at least three
22
Business Days' notice to the Agent, to terminate in whole or reduce ratably in
part the unused portions of the respective Commitments of the Lenders; provided
that the aggregate amount of the Commitments of the Lenders shall not be reduced
to an amount that is less than the aggregate principal amount then outstanding
hereunder; and provided, further, that each partial reduction shall be in an
aggregate amount equal to $5,000,000 and an integral multiple of $1,000,000 in
excess thereof.
SECTION 2.06. REPAYMENT OF ADVANCES. The Borrower shall repay the
principal amount of each Advance made by each Lender in accordance with the Note
to the order of such Lender; provided, however, that the aggregate principal
amount outstanding of all Advances made by a Lender shall be due and payable in
full on the Termination Date applicable to such Lender.
SECTION 2.07. INTEREST ON ADVANCES. The Borrower shall pay interest on
the unpaid principal amount of each Advance owing to each Lender from the date
of such Advance until such principal amount shall be paid in full, at the
Applicable Rate for such Advance (except as otherwise provided in this Section
2.07), payable as follows:
(a) ALTERNATE BASE RATE ADVANCES. If such Advance is an Alternate
Base Rate Advance, interest thereon shall be payable quarterly in arrears
on the last day of each March, June, September and December, on the date
of any Conversion of such Alternate Base Rate Advance and on the date such
Alternate Base Rate Advance shall become due and payable or shall
otherwise be paid in full; provided that any amount of principal that is
not paid when due (whether at stated maturity, by acceleration, or
otherwise) shall bear interest, from the date on which such amount is due
until such amount is paid in full, payable on demand, at a rate per annum
equal at all times to the Default Rate.
(b) EURODOLLAR RATE ADVANCES. Subject to Section 2.08, if such
Advance is a Eurodollar Rate Advance, interest thereon shall be payable on
the last day of each Interest Period and, if the Interest Period for such
Advance has a duration of six months, on the numerically corresponding day
that occurs during such Interest Period three months from the first day of
such Interest Period
23
(or, if any such month does not have a numerically corresponding day, then
on the last day of such month) and on the date such Eurodollar Rate
Advance shall be Converted, shall become due and payable or shall
otherwise be paid in full; provided that any amount of principal that is
not paid when due (whether at stated maturity, by acceleration, or
otherwise) shall bear interest, from the date on which such amount is due
until such amount is paid in full, payable on demand, at a rate per annum
equal at all times to the Default Rate.
SECTION 2.08. ADDITIONAL INTEREST ON EURODOLLAR ADVANCES. The Borrower
shall pay to Agent for the account of each Lender any costs actually incurred by
such Lender which are attributable to such Lender's compliance with regulations
of the Board of Governors of the Federal Reserve System requiring the
maintenance of reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities. Such costs shall be paid to the Agent for
the account of such Lender in the form of additional interest on the unpaid
principal amount of each Eurodollar Rate Advance of such Lender, from the date
of such Advance until such principal amount is paid in full, at an interest rate
per annum equal at all times to the remainder obtained by subtracting (i) the
Eurodollar Rate for the Interest Period for such Advance from (ii) the rate
obtained by dividing such Eurodollar Rate by a percentage equal to 100% minus
the Eurodollar Reserve Percentage of such Lender for such Interest Period,
payable on each date on which interest is payable on such Advance. Such
additional interest shall be determined by such Lender and notified to the
Borrower through the Agent. A certificate as to the amount of such additional
interest, submitted to the Borrower and the Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error.
SECTION 2.09. INTEREST RATE DETERMINATION. (a) Each Reference Bank
agrees to furnish to the Agent timely information for the purpose of determining
each Eurodollar Rate. If any one or more of the Reference Banks shall not
furnish such timely information to the Agent for the purpose of determining any
such interest rate, the Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks.
24
(b) The Agent shall give prompt notice to the Borrower and the Lenders of
the applicable interest rate determined by the Agent for purposes of Section
2.07(a) or (b) and the applicable rate, if any, furnished by each Reference Bank
for the purpose of determining the applicable interest rate under Section
2.07(b).
(c) If fewer than two Reference Banks furnish timely information to the
Agent for determining the Eurodollar Rate for any Eurodollar Rate Advances, due
to the unavailability of funds to such Reference Banks in the relevant financial
markets:
(i) the Agent shall forthwith notify the Borrower and the
Lenders that the interest rate cannot be determined for such Eurodollar
Rate Advances;
(ii) each such Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into an Alternate Base
Rate Advance (or if such Advance is then an Alternate Base Rate Advance,
will continue as an Alternate Base Rate Advance); and
(iii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances, shall be suspended until the
Agent shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the Majority Lenders
notify the Agent that the Eurodollar Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Majority Lenders of
making, funding, or maintaining their respective Eurodollar Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Borrower and the
Lenders, whereupon:
(i) each Eurodollar Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert into an
Alternate Base Rate Advance; and
(ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the Agent
shall notify the Borrower and the Lenders that the
25
circumstances causing such suspension no longer exist.
(e) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "INTEREST PERIOD" in Section 1.01, the Agent will
forthwith so notify the Borrower and the Lenders and such Advances will
automatically, on the last day of the then existing Interest Period therefor,
Convert into Alternate Base Rate Advances.
(f) On the date on which the aggregate unpaid principal amount of Advances
comprising all Borrowings shall be reduced, by payment or prepayment or
otherwise, to less than $5,000,000, such Advances shall, if they are Eurodollar
Rate Advances, automatically Convert into Alternate Base Rate Advances, and on
and after such date the right of the Borrower to Convert such Advances into
Eurodollar Rate Advances shall be suspended until such time that the aggregate
unpaid principal amount of Advances comprising all Borrowings shall equal or
exceed $5,000,000.
SECTION 2.10. CONVERSION OF ADVANCES. So long as no Event of Default or
Unmatured Default shall have occurred and be continuing, the Borrower may on any
Business Day, by delivering a notice of Conversion (a "NOTICE OF CONVERSION") to
the Agent not later than 12:00 noon (i) on the third Business Day prior to the
date of the proposed Conversion, in the case of a Conversion to Eurodollar Rate
Advances and (ii) on the date of the proposed Conversion, in the case of a
Conversion to Alternate Base Rate Advances, and subject to the provisions of
Sections 2.09 and 2.13, Convert all Advances of one Type comprising the same
Borrowing into Advances of another Type; provided, however, that, in the case of
any Conversion of any Eurodollar Rate Advances into Advances of another Type on
a day other than the last day of an Interest Period for such Eurodollar Rate
Advances, the Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 9.04(b). Each such Notice of Conversion shall be in
substantially the form of Exhibit B-2 hereto and shall, within the restrictions
specified above, specify (A) the date of such Conversion, (B) the Advances to be
Converted, (C) if such Conversion is into Eurodollar Rate Advances, the duration
of the Interest Period for each such Advance, and (D) the aggregate amount of
Advances proposed to be Converted.
26
SECTION 2.11. OPTIONAL PREPAYMENTS OF ADVANCES. The Borrower may, upon
at least three Business Days' notice to the Agent stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given the
Borrower shall, prepay the outstanding principal amounts of the Advances
comprising part of the same Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (i) each partial prepayment shall be in an aggregate
principal amount not less than $5,000,000 or an integral multiple of $1,000,000
in excess thereof and (ii) in the case of any such prepayment of Eurodollar Rate
Advances, the Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 9.04(b) on the date of such prepayment. Except as
provided in this Section 2.11, the Borrower shall have no right to prepay any
principal amount of any Advances.
SECTION 2.12. MANDATORY PREPAYMENTS. (a) If and to the extent that the
aggregate principal amount outstanding on any date hereunder shall exceed the
aggregate amount of the Commitments hereunder on such date, the Borrower shall
pay or prepay for the ratable accounts of the Lenders so much of the principal
amount outstanding under this Agreement as shall be necessary in order that the
principal amount outstanding (after giving effect to such prepayment) will not
exceed the amount of Commitments on such date, together with (i) accrued
interest to the date of such prepayment on the principal amount repaid or
prepaid and (ii) in the case of prepayments of Eurodollar Rate Advances, any
amount payable to the Lenders pursuant to Section 9.04(b).
(b) All prepayments required to be made pursuant to subsection (a), above,
shall be applied by the Agent:
(i) first, to the prepayment in whole or ratably in part of the
principal amount of all outstanding Alternate Base Rate Advances (without
reference to minimum dollar requirements);
(ii) second, to the prepayment in whole or ratably in part of the
principal amount of all outstanding Eurodollar Rate Advances (without
reference to minimum dollar requirements); and
(iii) third, to the cash collateralization of LC Outstandings by
depositing such amounts in a special interest-bearing escrow
27
account maintained by the Agent at the Agent's office and pledged to the
Agent for the benefit of the Lenders pursuant to documentation reasonably
satisfactory to the Borrower and the Agent.
(c) In lieu of prepaying any Eurodollar Rate Advances under any provision
(other than Sections 2.14 and 7.02) of this Agreement, the Borrower may, upon
notice to the Agent, deliver such funds to the Agent, to be held as additional
cash collateral securing the obligations hereunder and under the Notes. The
Agent shall deposit all amounts delivered to it in a non-interest-bearing
special purpose cash collateral account, to be governed by a cash collateral
agreement in form and substance satisfactory to the Borrower and the Agent, and
shall apply all such amounts in such account against such Advances, and such
Advances shall be deemed prepaid, on the last day of the Interest Period
therefor. The Agent shall promptly notify the Lenders of any election by the
Borrower to deliver funds to the Agent under this subsection (c).
(d) In addition, in the event that any Lender shall not have consented to
a request made by the Borrower under Section 2.18 to extend the Termination
Date, then, on the date of any termination or reduction of the Commitment of
such Lender pursuant to Section 2.18, the Borrower shall pay or prepay to such
Lender the aggregate outstanding principal amount of all Advances of such
Lender, together with accrued interest to the date of such prepayment on the
principal amount prepaid. In the case of any such prepayment of a Eurodollar
Rate Advance, the Borrower shall be obligated to reimburse each such Lender in
respect thereof pursuant to Section 9.04(b).
SECTION 2.13. INCREASED COSTS. (a) If, due to either (i) the
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements, in the case of Eurodollar Rate Advances,
included in the Eurodollar Reserve Percentage) in or in the interpretation of
any law or regulation or (ii) the compliance with any guideline or request from
any central bank or other governmental authority (whether or not having the
force of law), there shall be any increase in (A) the cost to any Lender of
agreeing to make or making, funding or maintaining Eurodollar Rate Advances, or
of participating in the issuance, maintenance or funding of any Letter of
Credit, or (B) the cost to any LC Bank of issuing, maintaining or funding any
Letter of Credit,
28
then the Borrower shall from time to time, upon demand by such Lender or any LC
Bank, as the case may be (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender or LC Bank, as the case may be, additional
amounts sufficient to compensate such Lender or LC Bank, as the case may be, for
such increased cost. A certificate as to the amount of such increased cost,
submitted to the Borrower and the Agent by such Lender or LC Bank, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If any Lender or LC Bank determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or LC Bank or any corporation controlling such Lender or LC Bank and that
the amount of such capital is increased by or based upon (1) the existence of
such Lender's or LC Bank's commitment to lend or issue or participate in any
Letter of Credit hereunder or (2) the participation in or issuance or
maintenance of any Letter of Credit or Advance and (3) other similar such
commitments, then, upon demand by such Lender or LC Bank (with a copy of such
demand to the Agent), the Borrower shall immediately pay to the Agent for the
account of such Lender or LC Bank from time to time as specified by such Lender
or LC Bank additional amounts sufficient to compensate such Lender or LC Bank or
such corporation in the light of such circumstances, to the extent that such
Lender or LC Bank reasonably determines such increase in capital to be allocable
to the transactions contemplated hereby. A certificate as to such amounts
submitted to the Borrower and the Agent by such Lender or LC Bank, describing in
reasonable detail the manner in which such amounts have been calculated, shall
be conclusive and binding for all purposes, absent manifest error.
(c) Notwithstanding the provisions of subsection (a) or (b), above, to the
contrary, no Lender or LC Bank shall be entitled to demand compensation or be
compensated thereunder to the extent that such compensation relates to any
period of time more than 180 days prior to the date upon which such Lender or LC
Bank first notified the Borrower of the occurrence of the event entitling such
Lender to such compensation (unless, and to the extent, that any such
compensation so demanded shall relate to the retroactive application of any
event so notified to the Borrower).
29
SECTION 2.14. ILLEGALITY. Notwithstanding any other provision of this
Agreement to the contrary, if any Lender (the "AFFECTED LENDER") shall notify
the Agent and the Borrower that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any central bank
or other governmental authority asserts that it is unlawful, for the Affected
Lender or its Eurodollar Lending Office to perform its obligations hereunder to
make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances
hereunder, (i) all Eurodollar Rate Advances of the Affected Lender shall, on the
fifth Business Day following such notice from the Affected Lender (or sooner if
required by such law, regulation, central bank or other governmental authority),
automatically be Converted into a like number of Alternate Base Rate Advances,
each in the amount of the corresponding Eurodollar Rate Advance of the Affected
Lender being so Converted (each such Advance, as so Converted, being an
"AFFECTED LENDER ADVANCE"), and the obligation of the Affected Lender to make,
maintain, or Convert Advances into Eurodollar Rate Advances shall thereupon be
suspended until the Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist, or the Affected Lender
has been replaced pursuant to Section 9.07(g), and (ii) in the event that, on
the last day of each of the then-current Interest Periods for each Eurodollar
Rate Advance (each such Advance being an "UNAFFECTED LENDER ADVANCE") of each of
the other Lenders (each such Lender being an "UNAFFECTED LENDER"), the Agent
shall have yet to notify the Borrower and the Lenders that the circumstances
causing such suspension of the Affected Lender's obligations as aforesaid no
longer exist, or the Affected Lender has not yet been replaced pursuant to
Section 9.07(g), such Unaffected Lender Advances shall be Converted into
Alternate Base Rate Advances, and the obligation of each such Unaffected Lender
to make, maintain, or Convert Advances into Eurodollar Rate Advances shall be
suspended until the Agent shall so notify the Borrower and the Lenders, or the
Affected Lender shall be so replaced. For purposes of any prepayment under this
Agreement, each Affected Lender Advance shall be deemed to continue to be part
of the same Borrowing as the Unaffected Lender Advances to which it corresponded
at the time of the Conversion of such Affected Lender Advance pursuant to clause
(i), above.
SECTION 2.15. PAYMENTS AND COMPUTATIONS. (a) The Borrower shall make
each payment hereunder and under the Notes not later than 1:00 P.M. on the day
when due in
30
Dollars to the Agent at its address referred to in Section 9.02 in same day
funds. Any payment that is received by the Agent after 1:00 P.M. on any
Business Day shall be deemed received on the immediately succeeding Business
Day. The Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or fees ratably (other than
amounts payable pursuant to Section 2.02(c), 2.04(b), 2.04(d), 2.08, 2.12(d),
2.13, 2.16, 9.04(b) or 9.04(c)) (in accordance with their respective
Percentages) to the Lenders for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any other amount
payable to any Lender to such Lender for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of a Lender Assignment and recording of the
information contained therein in the Register pursuant to Section 9.07(d), from
and after the effective date specified in such Lender Assignment, the Agent
shall make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender assignee thereunder, and the parties to such
Lender Assignment shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender and LC Bank, if and to the
extent payment owed to such Lender or LC Bank is not made when due hereunder or
under any Note held by such Lender, to charge from time to time against any or
all of the Borrower's accounts with such Lender or LC Bank, as the case may be,
any amount so due.
(c) All computations of interest based on the Alternate Base Rate and of
fees shall be made by the Agent on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the Eurodollar Rate
and the Federal Funds Rate shall be made by the Agent, and all computations of
interest pursuant to Section 2.08 shall be made by a Lender, on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or fees are payable. Each determination by the Agent (or, in the case
of Section 2.08, by a Lender) of an interest rate hereunder shall be conclusive
and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder, under the Notes, under an LC Bank
Agreement or under any other Loan
31
Document shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of payment of interest or
fees, as the case may be; provided, however, that if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances to be made in
the next following calendar month, such payment shall be made on the next
preceding Business Day, and such reduction of time shall in such case be taken
into account in the computation of interest or fees, as the case may be.
(e) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Lenders hereunder that the Borrower
will not make such payment in full, the Agent may assume that the Borrower has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent that the Borrower shall not have so made such payment in full to the
Agent, each Lender shall repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Agent, at the Federal Funds Rate.
(f) Notwithstanding anything to the contrary contained herein, any amount
payable by the Borrower hereunder or under any Note that is not paid when due
(whether at stated maturity, by acceleration or otherwise) shall (to the fullest
extent permitted by law) bear interest from the date when due until paid in full
at a rate per annum equal at all times to the Default Rate, payable upon demand.
SECTION 2.16. TAXES. (a) Any and all payments by the Borrower hereunder
and under the other Loan Documents shall be made, in accordance with Section
2.15, free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges, or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender, each LC
Bank and the Agent, taxes imposed on its overall net income and franchise taxes
imposed on it by the jurisdiction under the laws of which such Lender, LC Bank
or the Agent (as the case may be) is organized or any
32
political subdivision thereof and, in the case of each Lender, taxes imposed on
its overall net income and franchise taxes imposed on it by the jurisdiction of
such Lender's Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "TAXES"). If the Borrower
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any other Loan Document to any Lender, any LC Bank or
the Agent, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.16) such Lender, such LC Bank or
the Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, the Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges, or similar
levies which arise from any payment made hereunder or under any other Loan
Document or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or any other Loan Document (hereinafter referred to
as "OTHER TAXES").
(c) The Borrower will indemnify each Lender, each LC Bank and the Agent
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.16) paid by such Lender, such LC Bank or the Agent (as the case may
be) and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made within 30
days from the date such Lender, such LC Bank or the Agent (as the case may be)
makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
will furnish to the Agent, at its address referred to in Section 9.02, the
original or a certified copy of a receipt evidencing payment thereof.
(e) Each Lender which is organized under the laws of a jurisdiction
outside of the United States agrees
33
that, on or prior to the date upon which it shall become a party hereto, and
upon the reasonable request from time to time of the Borrower or the Agent, such
Lender will deliver to the Borrower and the Agent duly completed copies of such
form or forms as may from time to time be prescribed by the United States
Internal Revenue Service indicating that such Lender is entitled to receive
payments without deduction or withholding of any United States Federal income
taxes, as permitted by the Code. Each Lender that delivers to the Borrower and
the Agent the form or forms referred to in the preceding sentence further
undertakes to deliver to the Borrower and the Agent further copies of such form
or forms, or successor applicable form or forms, as the case may be, as and when
any previous form filed by it hereunder shall expire or shall become incomplete
or inaccurate in any respect, unless such Lender is no longer permitted under
United States law to deliver such form or forms. Each such Lender represents
and warrants that each such form supplied by it to the Agent and the Borrower
pursuant to this subsection (e), and not superseded by another form supplied by
it, is or will be, as the case may be, complete and accurate.
(f) Any Lender claiming any additional amounts payable pursuant to this
Section 2.16 shall use its best efforts (consistent with its internal policy and
legal and regulatory restrictions) to change the jurisdiction of its Applicable
Lending Office if the making of such a change would avoid the need for, or
reduce the amount of, any such additional amounts which may thereafter accrue
and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
(g) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.16 shall survive the payment in full of principal and interest
hereunder and under the Notes.
SECTION 2.17. SHARING OF PAYMENTS, ETC. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advances made by it (other than
pursuant to Section 2.02(c), 2.08, 2.12(d), 2.16, 9.04(b) or 9.07) in excess of
its ratable share of payments on account of the Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Advances made by them as shall be necessary to cause such
34
purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery, together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.17 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.18. EXTENSION OF TERMINATION DATE. (a) At least 60 but not
more than 90 days before each of the first two anniversaries of the Effective
Date, the Borrower may, by delivering a written request to the Agent (each such
request being irrevocable), request that each Lender extend for one year the
Termination Date with respect to such Lender's Commitment. The Agent shall,
upon its receipt of such a request, promptly notify each Lender thereof, and
request that each Lender promptly advise the Agent of its approval or rejection
of such request.
(b) Upon receipt of such notification from the Agent, each Lender may (but
shall not be required to), in its sole and absolute discretion, agree to extend
the Termination Date with respect to its Commitment for a period of one year,
and shall (should it determine to do so), no later than 30 days following its
receipt of such notification, notify the Agent of its approval concerning such
request. If any Lender shall not so notify the Agent, such Lender shall be
deemed not to have consented to such request. The Agent shall thereupon notify
the Borrower as to the Lenders, if any, that have consented to such request.
(c) The Commitment of each Lender that consents to such request shall be
extended for a period of one year, commencing on the then-scheduled Termination
Date. Subject to subsection (d), below, the Commitment of any Lender electing
not to extend (or failing to notify the
35
Agent of its consent to extend) the Termination Date shall automatically
terminate on the then-scheduled Termination Date.
(d) In the event that any Lender (a "NONCONSENTING LENDER") shall not
consent (or shall be deemed not to have consented) to the Borrower's extension
request made prior to the first anniversary of the Effective Date pursuant to
subsection (a), above, the Borrower may, by delivering a written request to the
Agent (such request being irrevocable) at least 60 but no more than 90 days
prior to the second anniversary of the Effective Date, request that each
Nonconsenting Lender extend for two years the Termination Date with respect to
such Lender's Commitment. The Agent shall, upon its receipt of such a request,
promptly notify such Nonconsenting Lender thereof, and request that each
Nonconsenting Lender promptly advise the Agent of its approval or rejection of
such request. Upon receipt of such notification from the Agent, each
Nonconsenting Lender may (but shall not be required to), in its sole and
absolute discretion, agree to extend the Termination Date with respect to its
Commitment for a period of two years, and shall (should it determine to do so),
no later than 30 days following its receipt of such notification, notify the
Agent of its approval concerning such request. If any Nonconsenting Lender
shall not so notify the Agent, such Nonconsenting Lender shall be deemed not to
have consented to such request. The Agent shall thereupon notify the Borrower
as to the Nonconsenting Lenders, if any, that have consented to such request.
The Commitment of each Nonconsenting Lender that consents to such request shall
be extended for a period of two years, commencing on the then-scheduled
Termination Date for such Nonconsenting Lender. The Commitment of any
Nonconsenting Lender electing not to extend (or failing to notify the Agent of
its consent to extend) the Termination Date shall automatically terminate on the
then-scheduled Termination Date for such Nonconsenting Lender.
(e) On each then-scheduled Termination Date, the aggregate Commitments
shall be automatically reduced by an amount equal to the product of (i) the sum
of the Percentages of those Lenders (including Nonconsenting Lenders) that have
elected not to extend (or failed to notify the Agent of their consent to extend)
their Commitment pursuant to subsection (b) or (d), above, as applicable, and
(ii) the Commitments on such Termination Date immediately prior to such
calculation.
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ARTICLE III
LETTERS OF CREDIT
SECTION 3.01 LC BANKS. (a) Subject to the terms and conditions hereof,
the Borrower may from time to time arrange for one or more Lenders to act as an
LC Bank hereunder. Any such designation by the Borrower shall be notified to
the Agent at least five Business Days prior to the first date upon which the
Borrower proposes that such LC Bank issue its first Letter of Credit, so as to
provide adequate time for such proposed Letter of Credit to be approved by the
Agent hereunder; provided, that nothing contained herein shall be deemed to
require any Lender to agree to act as an LC Bank, if it does not so desire.
Within two Business Days following the receipt of any such designation of a
proposed LC Bank together with the proposed form of such Letter of Credit, the
Agent shall notify the Borrower as to whether such Letter of Credit complies
with the requirements specified therefor in this Agreement.
(b) The aggregate amount of all LC Outstandings in respect of all Letters
of Credit outstanding on any date of determination shall not exceed
$100,000,000.
SECTION 3.02 LETTERS OF CREDIT. (a) Each Letter of Credit shall be
issued (or the stated maturity thereof extended or terms thereof modified or
amended) on not less than three Business Days' prior written notice thereof to
the Agent (which shall promptly distribute copies thereof to the Lenders) and
the relevant LC Bank. Each such notice (a "REQUEST FOR ISSUANCE") shall specify
(i) the date (which shall be a Business Day) of issuance of such Letter of
Credit (or the date of effectiveness of such extension, modification or
amendment) and the stated expiry date thereof (which shall be no later than the
latest then-scheduled Termination Date on which the amount of the Commitments
(without giving effect to any scheduled reductions in the Commitments on such
date) will equal or exceed the aggregate stated amount of such Letter of Credit
and all other Letters of Credit that are then scheduled to expire thereafter),
(ii) the proposed stated amount of such Letter of Credit (which shall not be
less than $1,000,000) and (iii) such other information as shall demonstrate
compliance by such Letter of Credit with the requirements specified therefor in
this Agreement and the relevant LC Bank Agreement. Each Request for Issuance
shall be irrevocable unless modified
37
or rescinded by the Borrower not less than two days prior to the proposed date
of issuance (or effectiveness) specified therein. Not later than 12:00 noon on
the proposed date of issuance (or effectiveness) specified in such Request for
Issuance, and upon fulfillment of the applicable conditions precedent and the
other requirements set forth herein and in the relevant LC Bank Agreement, such
LC Bank shall issue (or extend, amend or modify) such Letter of Credit and
provide notice and a copy thereof to the Agent, which shall promptly furnish
copies thereof to the Lenders.
(b) Each Lender severally agrees with such LC Bank to participate in the
Extension of Credit resulting from the issuance (or extension, modification or
amendment) of such Letter of Credit, in the manner and the amount provided in
Section 3.04(b), and the issuance of such Letter of Credit shall be deemed to be
a confirmation by such LC Bank and each Lender of such participation in such
amount.
SECTION 3.03 LC BANK FEES. The Borrower shall pay directly to each LC
Bank the letter of credit fees, if any, specified to be paid pursuant to the
terms of the LC Bank Agreement to which such LC Bank is a party at the times and
in the manner specified in such LC Bank Agreement.
SECTION 3.04 REIMBURSEMENT TO LC BANKS. (a) The Borrower hereby agrees
to pay to the Agent for the account of each LC Bank, on demand made by such LC
Bank to the Borrower and the Agent, on and after each date on which such LC Bank
shall pay any amount under the 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 at all times to the interest rate hereunder for
Alternate Base Rate Advances.
(b) If any LC Bank shall not have been reimbursed in full for any payment
made by such LC Bank under the Letter of Credit issued by such LC Bank on the
date of such payment, such LC Bank shall give the Agent and each Lender notice
thereof (an "LC PAYMENT NOTICE") no later than 12:00 noon on the Business Day
immediately succeeding the date of such payment by such LC Bank. Each Lender
severally agrees to purchase a participation in the reimbursement obligation of
the Borrower to such LC Bank under subsection (a), above, by paying to the
38
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 Rate from the date of
such 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. 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 such Lender
shall have received an LC Payment Notice from such LC Bank. Each Lender's
obligation to make each such payment to the Agent for the account of such LC
Bank shall be several and shall not be affected by the occurrence or continuance
of an Unmatured Default or Event of Default or the failure of any other Lender
to make any payment under this Section 3.04. Each Lender further agrees that
each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.
(c) The failure of any Lender to make any payment to the Agent for the
account of an LC Bank in accordance with subsection (b), above, shall not
relieve any other Lender of its obligation to make payment, but no Lender shall
be responsible for the failure of any other Lender. If any Lender shall fail to
make any payment to the Agent for the account of an 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, such LC Bank
shall be deemed, for purposes of Section 2.17 and Article VII hereof, to be a
Lender hereunder owed an Advance in an amount equal to the outstanding principal
amount due and payable by such Lender to the Agent for the account of such LC
Bank pursuant to subsection (b), above.
(d) Each participation purchased by a Lender under subsection (b), above,
shall constitute an Alternate Base Rate Advance deemed made by such Lender to
the Borrower on the date of such payment by the relevant LC Bank under the
Letter of Credit issued by such LC Bank (irrespective of the Borrower's
noncompliance, if any, with the conditions precedent for Advances hereunder);
and all such payments by the Lenders in respect of any one such payment by such
LC Bank shall constitute a single Borrowing hereunder.
SECTION 3.05 OBLIGATIONS ABSOLUTE. The payment obligations of each
Lender under Section 3.04(b) and of the Borrower under this Agreement in respect
of any
39
payment under any Letter of Credit and any Advance made under Section 3.04(d)
shall be unconditional and irrevocable, and shall be paid strictly in accordance
with the terms of this Agreement under all circumstances, including, without
limitation, the following circumstances:
(i) any lack of validity or enforceability of any Loan Document or
any other agreement or instrument relating thereto or to such Letter of
Credit;
(ii) any amendment or waiver of, or any consent to departure from,
all or any of the Loan Documents;
(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), any LC Bank, or any
other Person, whether in connection with this Agreement, the transactions
contemplated herein 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 any LC Bank under the Letter of Credit
issued by such LC Bank against presentation of a draft or certificate
which 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.
SECTION 3.06 LIABILITY OF LC BANKS AND THE LENDERS. The Borrower assumes
all risks of the acts and omissions of any beneficiary or transferee of any
Letter of Credit. Neither the LC Bank that has issued such Letter of Credit,
the Lenders nor any of their respective officers, directors, employees, agents
or Affiliates shall be liable or responsible for (i) the use that may
40
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 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 such 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 and each Lender shall have
the right to bring suit against such LC Bank, and such LC Bank shall be liable
to the Borrower and any Lender, to the extent of any direct, as opposed to
consequential, damages suffered by the Borrower or such Lender which the
Borrower or such Lender proves were caused by such LC Bank's wilful misconduct
or gross negligence, including such LC Bank's wilful 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, any LC Bank may accept sight drafts and
accompanying certificates presented under a 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.
Notwithstanding the foregoing, no Lender (in its capacity as Lender) shall be
obligated to indemnify the Borrower for damages caused by any LC Bank's wilful
misconduct or gross negligence, and the obligation of the Borrower to reimburse
the Lenders hereunder shall be absolute and unconditional, notwithstanding the
gross negligence or wilful misconduct of any LC Bank.
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01. CONDITIONS PRECEDENT TO INITIAL EXTENSION OF CREDIT. The
obligation of each Lender to make its initial Extension of Credit is subject to
the satisfaction, prior to or concurrently with the making of such initial
Extension of Credit, of each of the following conditions precedent:
41
(a) DOCUMENTS AND OTHER AGREEMENTS. The Agent shall have received the
following, each dated the same date (unless otherwise specified below), in form
and substance satisfactory to the Agent and each Lender and (except for the
Notes) in sufficient copies for each Lender:
(i) The Notes payable to the order of each of the Lenders,
respectively, duly executed by the Borrower;
(ii) A copy of the Guaranty, duly executed by the Parent;
(iii) Certified copies of the resolutions of the Board of Directors
of the Borrower approving this Agreement, the Notes, the other Loan
Documents to which it is a party and the transactions contemplated hereby
and thereby and any other documents to be delivered by the Borrower
hereunder, and of all documents evidencing other necessary corporate
action and all Governmental Approvals, if any, with respect to this
Agreement, the Notes and the other Loan Documents;
(iv) Certified copies of the resolutions of the Board of Directors of
the Parent approving the Guaranty and any other documents to be delivered
by the Parent hereunder or thereunder, and of all documents evidencing
other necessary corporate action and all Governmental Approvals, if any,
with respect to the Guaranty;
(v) A certificate of the Secretary or an Assistant Secretary of the
Borrower certifying (A) the names and true signatures of the officers of
the Borrower authorized to sign this Agreement, the Notes and the other
documents to be delivered hereunder and (B) that attached thereto are true
and correct copies of the Certificate of Incorporation (or comparable
charter document) and the By-laws of the Borrower, in each case as in
effect on such date;
(vi) A certificate of the Secretary or an Assistant Secretary of the
Parent certifying (A) the names and true signatures of the officers of the
Parent authorized to sign the Guaranty and any other documents to be
delivered by the Parent
42
hereunder or thereunder and (B) that attached thereto are true and correct
copies of the Certificate of Incorporation (or comparable charter
document) and By-laws of the Parent, in each case as in effect on such
date;
(vii) A good standing certificate issued by the Secretary of State
of its incorporation for each of the Borrower and the Parent, each dated
as of a date not more than five days prior to such date;
(viii) A certificate of the chief financial officer of the Borrower,
or such other officer of the Borrower acceptable to the Agent, stating
that (A) the representations and warranties contained in Section 5.01 of
this Agreement are true and correct on and as of the date of such
certificate as though made on and as of such date and (B) no Event of
Default and no Unmatured Default has occurred and is continuing;
(ix) A certificate of the chief financial officer of the Parent, or
such other officer of the Parent acceptable to the Agent, stating that the
representations and warranties contained in Section 6 of the Guaranty are
true and correct on and as of the date of such certificate as though made
on such date;
(x) A favorable opinion of Sidley & Austin, counsel for the Borrower
and the Parent, substantially in the form of Exhibit F hereto and as to
such other matters as the Majority Lenders through the Agent may
reasonably request;
(xi) A favorable opinion of King & Spalding, special counsel for the
Agent, substantially in the form of Exhibit G hereto; and
(xii) Such other approvals, opinions and documents as the Majority
Lenders, through the Agent, may reasonably request.
(b) PAYMENT OF FEES. The Agent and the Banks shall have received all fees
required to be paid by the Borrower on or prior to the date hereof pursuant to
Section 2.04(b) and (d) and all costs and expenses of the Agent (including
counsel fees and disbursements) incurred
43
through (and for which statements have been provided prior to) the date hereof.
SECTION 4.02. CONDITIONS PRECEDENT TO EACH EXTENSION OF CREDIT. The
obligation of each Lender or LC Bank, as the case may be, to make an Extension
of Credit (including the initial Extension of Credit) shall be subject to the
further conditions precedent that, on the date of such Extension of Credit and
after giving effect thereto:
(a) The following statements shall be true (and each of the giving of the
applicable notice or request with respect thereto and the making of such
Extension of Credit shall constitute a representation and warranty by the
Borrower that, on the date of such Extension of Credit, such statements are
true):
(i) the representations and warranties contained in Section 5.01 of
this Agreement (other than those contained in subsections (e) and (f)
thereof) and in Section 6 of the Guaranty (other than those contained in
subsections (f) and (g) thereof) are true and correct on and as of the
date of such Extension of Credit, before and after giving effect to such
Extension of Credit and to the application of the proceeds thereof, as
though made on and as of such date; and
(ii) no Event of Default has occurred and is continuing, or would
result from such Extension of Credit or the application of the proceeds
thereof.
(b) The Agent shall have received such other approvals, opinions and
documents as the Majority Lenders or any LC Bank, through the Agent, may
reasonably request as to the legality, validity, binding effect or
enforceability of the Loan Documents or the financial condition, results of
operations, operations, business, properties or prospects of the Borrower or of
the Parent and its Subsidiaries.
SECTION 4.03. CONDITIONS PRECEDENT TO CERTAIN EXTENSIONS OF CREDIT. The
obligation of each Lender or LC Bank, as the case may be, to make an Extension
of Credit (including the initial Extension of Credit) that would (after giving
effect to all Extensions of Credit on such date and the application of proceeds
thereof) increase the principal amount outstanding hereunder, or to make an
Extension of Credit of the type described in
44
clause (ii) or (iii) of the definition thereof, shall be subject to the further
conditions precedent that, on the date of such Extension of Credit and after
giving effect thereto:
(a) the following statements shall be true (and each of the giving of the
applicable notice or request with respect thereto and the making of such
Extension of Credit shall constitute a representation and warranty by the
Borrower that, on the date of such Extension of Credit, such statements are
true):
(i) the representations and warranties contained in subsections (e)
and (f) of Section 5.01 of this Agreement and in subsections (f) and (g)
of Section 6 of the Guaranty are true and correct on and as of the date of
such Extension of Credit, before and after giving effect to such Extension
of Credit and to the application of the proceeds thereof, as though made
on and as of such date; and
(ii) no Unmatured Default has occurred and is continuing, or would
result from such Extension of Credit or the application of the proceeds
thereof.
(b) The Agent shall have received such other approvals, opinions and
documents as the Majority Lenders or any LC Bank, through the Agent, may
reasonably request.
SECTION 4.04. RELIANCE ON CERTIFICATES. The Lenders, the LC Banks and
the Agent shall be entitled to rely conclusively upon the certificates delivered
from time to time by officers of the Borrower and the Parent as to the names,
incumbency, authority and signatures of the respective persons named therein
until such time as the Agent may receive a replacement certificate, in form
acceptable to the Agent, from an officer of such Person identified to the Agent
as having authority to deliver such certificate, setting forth the names and
true signatures of the officers and other representatives of such Person
thereafter authorized to act on behalf of such Person.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in
good standing under the laws of the State of Illinois, and is duly qualified to
do business and is in good standing as a foreign corporation in each
jurisdiction in which the nature of the business conducted or the property
owned, operated or leased by it requires such qualification and where the
failure to so qualify might have a Material Adverse Effect, and has full power
and authority to own and hold under lease its property and to conduct its
business substantially as presently conducted by it.
(b) The execution, delivery and performance by the Borrower of this
Agreement, the Notes and the other Loan Documents to which it is a party are
within the Borrower's corporate powers, have been duly authorized by all
necessary corporate action and do not, and will not, (i) contravene the
Borrower's Certificate of Incorporation (or other comparable charter document)
or By-laws, law or any contractual or legal restriction binding on or affecting
the Borrower or its properties, (ii) result in a breach of, or constitute a
default under, any indenture or loan or credit agreement or any other agreement,
lease or instrument to which the Borrower is a party or by which it or its
properties may be bound or affected, or (iii) result in or require the creation
of any Lien upon or with respect to any of its properties.
(c) No Governmental Approval is required for the due execution, delivery
and performance by the Borrower of this Agreement, the Notes or any other Loan
Document to which it is a party.
(d) This Agreement has been duly executed and delivered by the Borrower
and is, and the Notes and the other Loan Documents to which the Borrower is a
party when delivered hereunder will be, legal, valid and binding obligations of
the Borrower enforceable against the Borrower in accordance with their
respective terms.
46
(e) The balance sheets of the Borrower and its Subsidiaries as at
September 30, 1994, and the related statements of income, cash flows and
retained earnings of the Borrower and its Subsidiaries for the ten-month period
(December 1, 1993 to September 30, 1994) then ended, copies of each of which
have been furnished to each Lender, fairly present (subject to year-end
adjustments) the financial condition of the Borrower and its Subsidiaries as at
such dates and the results of the operations of the Borrower and its
Subsidiaries for the periods ended on such dates, all in accordance with GAAP
(except for the absence of notes thereto), and since September 30, 1994, there
has been no material adverse change in the financial condition, results of
operations, operations, business, properties or prospects of the Borrower and
its Subsidiaries, taken as a whole (other than operating losses resulting from
start-up operations of Subsidiaries of the Borrower), or in the Borrower's
ability to perform any of its obligations under this Agreement, the Notes and
the other Loan Documents to which it is a party.
(f) There is no pending or threatened action or proceeding affecting the
Borrower, the Parent or any of their respective Subsidiaries before any court,
governmental agency or arbitrator that may result in a Material Adverse Effect,
or that relates to this Agreement or the other Loan Documents or any transaction
contemplated hereby or thereby.
(g) No proceeds of any Advance will be used to acquire any equity security
of a class which is registered pursuant to Section 12 of the Exchange Act or in
any transaction subject to the requirements of Section 13 or 14 of the Exchange
Act.
(h) The Borrower is not engaged in the business of extending credit for
the purpose of buying or carrying margin stock (within the meaning of Regulation
U issued by the Board of Governors of the Federal Reserve System), and no
proceeds of any Advance and no Letter of Credit will be used to buy or carry any
margin stock or to extend credit to others for the purpose of buying or carrying
any margin stock.
(i) Neither the Borrower nor any Subsidiary of the Borrower is in
violation of any law or governmental regulation or court decree or order which
may result in a Material Adverse Effect.
47
(j) Each of the Borrower and its Subsidiaries has filed all tax returns
and reports required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such taxes or charges
which are being contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books. No tax Liens have been filed with respect to the Borrower or any of its
Subsidiaries and, to the knowledge of the Borrower, no claims with respect to
any such taxes or charges are being asserted which, individually or in the
aggregate, could result in a Material Adverse Effect.
(k) During the preceding twelve-consecutive-month period, no steps have
been taken to terminate any Pension Plan, and no contribution failure has
occurred with respect to any Pension Plan sufficient to give rise to a Lien
under Section 302(f) of ERISA. No condition exists or event or transaction has
occurred with respect to any Pension Plan which could result in the incurrence
by the Borrower of any material liability, fine, or penalty. The Borrower has
no contingent liability with respect to any post-retirement benefit under a
Welfare Plan, other than liability for continuation coverage described in Part 6
of Title I of ERISA.
(l) All factual information heretofore or contemporaneously furnished by
or on behalf of the Borrower in writing to any Lender or the Agent for purposes
of or in connection with this Agreement, any other Loan Document or any
transaction contemplated hereby is, and all other such factual information
hereafter furnished by or on behalf of the Borrower or Parent to the Agent or
any Lender will be, true and accurate in every material respect on the date as
of which such information is dated or certified, and not incomplete by omitting
to state any material fact necessary to make such information not misleading.
(m) The Borrower is not (i) a "public utility holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended, or (ii)
an "investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, or an
"investment advisor" within the meaning of the Investment Advisors Act of 1940,
as amended.
48
ARTICLE VI
COVENANTS OF THE BORROWER
SECTION 6.01. AFFIRMATIVE COVENANTS. So long as any Note or any amount
payable by the Borrower hereunder shall remain unpaid, any Letter of Credit
shall remain outstanding or any Lender shall have any Commitment hereunder, the
Borrower will, unless the Majority Lenders shall otherwise consent in writing:
(a) REPORTING REQUIREMENTS. Furnish to each Lender:
(i) as soon as available and in any event within 60 days after the
end of each of the first three quarters of each fiscal year of the
Borrower, a consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such quarter and consolidated statements of
income, retained earnings and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous fiscal
year and ending with the end of such quarter, all in reasonable detail and
duly certified (subject to year-end audit adjustments) by the chief
financial officer or the Treasurer of the Borrower as having been prepared
in accordance with GAAP consistently applied, except for (A) the absence
of notes thereto and (B) changes in accounting principles required by
GAAP;
(ii) as soon as available and in any event within 90 days after the
end of each fiscal year of the Borrower and its Subsidiaries, a
consolidated balance sheet of the Borrower and its Subsidiaries as at the
end of such fiscal year and consolidated statements of income, retained
earnings and cash flows of the Borrower and its Subsidiaries for such
fiscal year, certified in a manner acceptable to the Agent by Arthur
Anderson & Co. or another nationally-recognized independent public
accounting firm selected by the Borrower and acceptable to the Agent;
(iii) concurrently with the financial statements for each quarterly
accounting period and for each fiscal year of the Borrower furnished
49
pursuant to paragraphs (i) and (ii), above, (A) a certificate of the chief
financial officer, any vice president responsible for financial or
accounting matters, or the Treasurer of the Borrower stating that (1) the
Borrower has performed and observed all of, and the Borrower is not in
default in the performance or observance of any of, the terms, covenants,
agreements and conditions of this Agreement or any Loan Document or, if
the Borrower shall be in default, specifying all such defaults and the
nature thereof, of which the signer of such certificate may have
knowledge, and (2) the signer has obtained no knowledge of any Unmatured
Default or Event of Default except as specified in such certificate, and
(B) an analysis prepared and certified by the chief financial officer, any
vice president responsible for financial or accounting matters, or the
Treasurer of the Borrower of the covenant contained in Section 6.02(b)
containing all information necessary for determining compliance by the
Borrower with such covenant;
(iv) as soon as available and in any event within 90 days after the
end of each fiscal year of the Borrower and concurrently with the
financial statements furnished pursuant to paragraph (ii), above, a
written statement of the independent public accountants that certified
such financial statements stating that, in making the examination
necessary for their certification of such financial statements, they have
obtained no knowledge of any Unmatured Default or Event of Default by the
Borrower in the observance of any of the covenants contained in Section
6.02 or, if such accountants shall have obtained knowledge of any such
Unmatured Default or Event of Default, specifying all such Unmatured
Defaults and Events of Defaults and the nature thereof, it being
understood that they shall not be liable directly or indirectly for any
failure to obtain knowledge of any Unmatured Default or Event of Default;
(v) as soon as possible and in any event within ten days after the
commencement of litigation against the Borrower or any of its Subsidiaries
that may result in a Material Adverse Effect or that questions the
validity or enforceability of any Loan Document against the Borrower or
the Parent, notice of such litigation
50
describing in reasonable detail the facts and circumstances concerning
such litigation and the Borrower's, or such Subsidiary's, as the case may
be, proposed actions in connection therewith;
(vi) if the Borrower has any class of securities registered under the
Exchange Act, then promptly after the sending or filing thereof, copies of
all reports which the Borrower sends to any of its security holders, and
copies of all reports and registration statements which the Borrower or
any of its Subsidiaries files with the Securities and Exchange Commission
or any national securities exchange;
(vii) promptly after the occurrence of the institution of any steps
by the Borrower or any other Person to terminate any Pension Plan, or the
failure to make a required contribution to any Pension Plan if such
failure is sufficient to give rise to a Lien under Section 302(f) of
ERISA, or the taking of any action with respect to a Pension Plan which
could result in the requirement that the Borrower or any of its
Subsidiaries furnish a bond or other security to the PBGC or such Pension
Plan, or the occurrence of any event with respect to any Pension Plan
which could result in the incurrence by the Borrower or any of its
Subsidiaries of any material liability, fine, or penalty, or any material
increase in the contingent liability of the Borrower or any of its
Subsidiaries with respect to any post-retirement Welfare Plan benefit,
notice of such event and the action the Borrower proposes to take with
respect thereto;
(viii) as soon as possible and in any event within ten days after
the Borrower knows or should have reason to know of the occurrence of each
Unmatured Default or Event of Default continuing on the date of such
statement, a statement of the chief financial officer, any vice president
responsible for financial or accounting matters, or the Treasurer of the
Borrower setting forth details of such Unmatured Default or Event of
Default and the action that the Borrower has taken and proposes to take
with respect thereto; and
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(ix) such other information respecting the business, assets,
revenues, financial condition, results of operations, operations,
business, properties or prospects of the Borrower or any of its
Subsidiaries as the Agent or any Lender, through the Agent, may from time
to time reasonably request.
(b) PRESERVATION OF CORPORATE EXISTENCE, ETC. Preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its legal existence in
the jurisdiction of its organization and qualify and remain qualified as a
foreign organization in each jurisdiction in which such qualification is
reasonably necessary in view of its business and operations or the ownership of
its properties, and preserve, renew and keep in full force and effect the
rights, privileges and franchises necessary or desirable in the normal conduct
of its business, except to the extent that the Borrower's chief financial
officer certifies to the Lenders that the loss of any such right, privilege or
franchise, both individually and together with all other rights, privileges and
franchises lost since the Effective Date, would not have a Material Adverse
Effect.
(c) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its Subsidiaries
to comply, in all material respects with all Applicable Laws, such compliance to
include compliance with ERISA and Environmental Laws.
(d) MAINTENANCE OF INSURANCE, ETC. Maintain, and cause each of its
Subsidiaries to maintain, such insurance as may be required by law and such
other insurance, to the extent and against such hazards and liabilities, as is
customarily maintained by companies similarly situated.
(e) INSPECTION RIGHTS. At any reasonable time and from time to time as
the Agent or any Lender may reasonably request, permit the Agent, each Lender or
any agents or representatives thereof to examine and make copies of and
abstracts from the records and books of account of, and visit the properties of,
the Borrower and any of its Subsidiaries, and to discuss the affairs, finances
and accounts of the Borrower and any of its Subsidiaries with any of their
respective officers or directors.
(f) MAINTAINING OF BOOKS. Maintain, and cause each of its Subsidiaries to
maintain, complete and
52
accurate books of record and account in which entries shall be made of all
financial transactions and the assets and business of the Borrower and each of
its Subsidiaries in accordance with GAAP.
(g) MAINTENANCE OF PROPERTIES. Cause all properties used or useful in the
conduct of the business of the Borrower or any of its Subsidiaries to be
maintained and kept in reasonable condition, repair and working order, and cause
to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Borrower may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that neither the
Borrower nor any such Subsidiary shall be prevented from discontinuing the
operation and maintenance of any such properties if the chief financial officer
of the Borrower certifies that such discontinuance is desirable in the conduct
of the Borrower's or such Subsidiary's business and such discontinuance,
individually or with all such other discontinuances since the Effective Date,
would not have a Material Adverse Effect.
(h) TAXES AND LIABILITIES. Pay, and cause each of its Subsidiaries to
pay, when due all taxes, assessments, governmental charges and other liabilities
imposed upon it or its property, except to the extent contested in good faith
and by appropriate proceedings and in respect of which adequate reserves for the
payment thereof have been set aside by the Borrower or such Subsidiary, as the
case may be, in accordance with GAAP.
(i) USE OF PROCEEDS. Use the proceeds of each Extension of Credit
hereunder exclusively to finance investments in nonregulated energy generation
and energy-service-related businesses and projects, and for other general
corporate purposes, including, without limitation, intercompany advances to the
Parent in an aggregate amount not to exceed $25,000,000 at any one time
outstanding.
(j) CONDUCT OF BUSINESS. Carry out and conduct, and cause each of its
Subsidiaries to carry out and conduct, its business in substantially the same
manner and in substantially the same fields (including, without limitation,
nonregulated energy generation and energy-service-related businesses and
projects) as such business is now carried on and conducted.
53
(k) ERISA. Maintain, and cause each of its Subsidiaries to maintain, each
of its defined benefit plans in substantial compliance with all applicable
requirements of ERISA and of the Code and with all applicable rulings and
regulations issued under the provisions of ERISA and the Code.
SECTION 6.02. NEGATIVE COVENANTS. So long as any Note or any amount
payable by the Borrower hereunder shall remain unpaid, any Letter of Credit
shall remain outstanding or any Lender shall have any Commitment hereunder, the
Borrower will not, unless the Majority Lenders shall otherwise consent in
writing:
(a) BORROWER STOCK. Permit any of its Subsidiaries to purchase, redeem,
retire, or otherwise acquire for value any shares of capital stock of the
Borrower, or any warrants, rights, or options to acquire any such shares, now or
hereafter outstanding.
(b) DEBT. Create, incur, assume or suffer to exist any Debt, other than
(i) Debt hereunder and under the Notes and the other Loan Documents, (ii)
unsecured Contingent Obligations (other than in respect of Letters of Credit
issued pursuant to Article III hereof) in an aggregate amount at any one time
outstanding not to exceed the excess of (A) $300,000,000 over (B) the amount of
Contingent Obligations incurred by the Parent pursuant to Section 8(c)(ii) of
the Guaranty, and (iii) unsecured intercompany advances from the Parent
subordinated in all respects to any and all Debt hereunder and under the Notes
upon the terms set forth in Exhibit H hereto; provided, however, that,
notwithstanding the foregoing, the aggregate amount of Debt of the Borrower and
its Subsidiaries and of the Parent at any one time outstanding shall not exceed
$500,000,000.
(c) INVESTMENTS IN OTHER PERSONS. Make, or permit any of its Subsidiaries
to make, any loan or advance to any Person or purchase or otherwise acquire any
capital stock, obligations or other securities of, make any capital contribution
to, or otherwise invest in, any Person, except that (i) so long as no Unmatured
Default or Event of Default has occurred and is continuing, (A) the Borrower may
make capital contributions and intercompany advances to any of its Subsidiaries,
and (B) the Borrower or any of its Subsidiaries may make investments in single-
purpose entities engaged in, or that will engage in, nonregulated energy
generation and energy-service-related businesses
54
and projects to the extent that foreclosure of any such investment would not
have a Material Adverse Effect and (ii) the Borrower may make intercompany
advances to the Parent in an aggregate amount not to exceed $25,000,000 at any
one time outstanding.
(d) DISTRIBUTIONS. Upon the occurrence and during the continuance of an
Event of Default, declare or pay, directly or indirectly, any dividend, payment
or other distribution of assets, properties, cash, rights, obligations or
securities on account of any share of any class of capital stock of the
Borrower, or purchase, redeem, retire, or otherwise acquire for value any shares
of any class of capital stock of the Borrower or any warrants, rights, or
options to acquire any such shares, now or hereafter outstanding, or make any
distribution of assets to any of its shareholders.
(e) LIENS, ETC. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any lien, security interest, or other
charge or encumbrance, or any other type of preferential arrangement, upon or
with respect to any of its properties (including, without limitation, the
capital stock of any of its Subsidiaries), whether now owned or hereafter
acquired, or assign, or permit any of its Subsidiaries to assign, any right to
receive income, in each case to secure or provide for the payment of any Debt of
any Person (any of the foregoing being referred to herein as a "LIEN"), other
than (i) Liens imposed by law, such as carriers', warehousemen's and mechanics'
Liens and other similar Liens arising in the ordinary course of business and
(ii) Liens on the capital stock of any of the Borrower's single-purpose
Subsidiaries or any such Subsidiary's assets to secure the repayment of
nonrecourse project financing for such Subsidiary.
(f) MAINTENANCE OF OWNERSHIP OF SUBSIDIARIES. Sell, assign, transfer,
pledge, hypothecate, or otherwise dispose of any shares of capital stock of any
of its Significant Subsidiaries or any warrants, rights or options to acquire
such capital stock, or permit any of its Significant Subsidiaries to issue,
sell, or otherwise dispose of any shares of its capital stock or the capital
stock of any other of its Significant Subsidiaries or any warrants, rights, or
options to acquire such capital stock, except (and only to the extent) as may be
necessary to give effect to a transaction permitted by subsection (e)(ii), above
(including, without limitation, any disposition pursuant to a foreclosure of any
Lien
55
permitted by subsection (e)(ii), above, provided that such disposition would not
have a Material Adverse Effect), subsection (g), below, or Section 8(g) of the
Guaranty and except that any Significant Subsidiary may issue and sell shares of
its capital stock, and warrants, rights, or options to acquire the same, to the
Borrower or such Significant Subsidiary's parent corporation (if not the
Borrower); provided, however, that the Borrower may sell or otherwise dispose of
up to 49% of the capital stock of any of its Subsidiaries (other than a
Significant Subsidiary) to any Person.
(g) MERGERS; SALE OF ASSETS; ETC. (i) Merge or consolidate, or permit any
of its Subsidiaries to merge or consolidate, with or into any Person, or (ii)
convey, transfer, lease or otherwise dispose of, or permit any of its
Subsidiaries to convey, transfer, lease or otherwise dispose of, whether in one
transaction or in a series of transactions, and whether in a sale/leaseback
transaction or otherwise, more than 10% of its assets (whether now owned or
hereafter acquired, unless, in the case of a merger, immediately after giving
effect thereto, (i) no event shall occur and be continuing that constitutes an
Unmatured Default or an Event of Default, (ii) in the case of any merger
involving the Borrower, the Borrower is the surviving corporation, (iii) in the
case of any merger between any Subsidiary of the Borrower and any other Person
(other than the Borrower and the Parent), such Subsidiary is the surviving
corporation, and (iv) the Borrower and such Subsidiary shall not be liable with
respect to any Debt or allow its property to be subject to any Lien which it
could not become liable with respect to or allow its property to become subject
to under this Agreement on the date of such transaction; provided, however, that
any Subsidiary of the Borrower may transfer any turnkey project constructed by
such Subsidiary for any other Person to the extent that such Subsidiary receives
adequate consideration (in the judgment of its board of directors) therefor.
(h) OTHER AGREEMENTS. Enter into, or permit any of its Subsidiaries to
enter into, any agreement containing any provision that would be violated or
breached by the performance of its obligations hereunder or under any instrument
or document delivered or to be delivered by the Borrower hereunder or in
connection herewith.
(i) REGULATION U. Use or permit any Letter of Credit or any proceeds of
any Advance to be used, whether
56
directly or indirectly, for the purpose, whether immediate, incidental, or
ultimate, of "buying or carrying any margin stock" within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System.
(j) TRANSACTIONS WITH AFFILIATES. Enter into, or permit any of its
Subsidiaries to enter into, any transaction with an Affiliate of the Borrower,
unless such transaction is on terms no less favorable to the Borrower or such
Subsidiary, as the case may be, than if the transaction had been negotiated in
good faith on an arm's length basis with a Person that was not an Affiliate of
the Borrower; provided, however, that the foregoing restrictions shall not apply
to any transaction between the Borrower and any of its Subsidiaries or between
Commonwealth and the Borrower or any of the Borrower's Subsidiaries.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. EVENTS OF DEFAULT. If any of the following events (each an
"EVENT OF DEFAULT") shall occur and be continuing after the applicable grace
period and notice requirement (if any), the Agent and the Lenders shall be
entitled to exercise the remedies set forth in Section 7.02:
(a) the Borrower shall fail to pay any principal of any Note, or any
reimbursement obligation in respect of any drawing under any Letter of Credit,
when the same becomes due and payable; or
(b) the Borrower shall fail to pay any interest on any Note, any fees or
any other amount due under this Agreement for two Business Days after the same
becomes due and payable; or
(c) any representation or warranty made or deemed made by the Borrower
herein or in any of the other Loan Documents or by the Borrower (or any of its
officers) in connection with this Agreement or any of the Loan Documents, or any
representation or warranty made or deemed made by the Parent in the Guaranty or
by the Parent (or any of its officers) in connection with the Guaranty, shall
prove to have been incorrect in any material respect when made or deemed made;
or
57
(d) (i) the Borrower shall fail to perform or observe any term, covenant,
or agreement contained in Section 6.01(i) or Section 6.02; (ii) the Parent shall
fail to perform or observe any term, covenant or agreement contained in Section
7(i), Section 7(j), Section 7(l) or Section 8 of the Guaranty; (iii) the
Borrower shall fail to perform or observe any other term, covenant, or agreement
contained in this Agreement or in any other Loan Document on its part to be
performed or observed (and not constituting an Event of Default under any of the
other provisions of this Section 7.01) if such failure shall remain unremedied
for 30 days; or (iv) the Parent shall fail to perform or observe any other term,
covenant, or agreement contained in the Guaranty on its part to be performed or
observed (and not constituting an Event of Default under any of the other
provisions of this Section 7.01) if such failure shall remain unremedied for 30
days; or
(e) Commonwealth shall fail to pay any principal of or premium or interest
on any of its Debt which is outstanding in a principal amount of at least
$25,000,000 in the aggregate, when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise),
and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any other
event shall occur or condition shall exist under any agreement or instrument
relating to any such Debt and shall continue after the applicable grace period,
if any, specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the maturity of
such Debt; or any such Debt shall be declared to be due and payable, or required
to be prepaid (other than by a regularly scheduled required prepayment), prior
to the stated maturity thereof; or
(f) the Parent shall fail to pay any principal of or premium or interest
on any of its Debt which is outstanding in a principal amount of at least
$5,000,000 in the aggregate, when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise),
and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any other
event shall occur or condition shall exist under any agreement or instrument
relating to any such Debt and shall continue after the applicable grace period,
if any, specified in such agreement or
58
instrument, if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Debt; or any such Debt shall be
declared to be due and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment), prior to the stated maturity thereof;
or
(g) the Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any of its Debt (excluding Debt evidenced
by the Notes and any Debt secured by a Lien of the type referred to in Section
6.02(e)(ii)) which is outstanding in a principal amount of at least $5,000,000
in the aggregate, when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt; or any other event shall
occur or condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity of
such Debt; or any such Debt shall be declared to be due and payable, or required
to be prepaid (other than by a regularly scheduled required prepayment), prior
to the stated maturity thereof; or
(h) either (i) the Parent, Commonwealth, the Borrower or any Significant
Subsidiary shall generally fail to pay, or admit in writing its inability to
pay, its debts as they become due, or shall voluntarily commence any proceeding
or file any petition under any bankruptcy, insolvency, or similar law seeking
dissolution, liquidation, or reorganization or the appointment of a receiver,
trustee, custodian, or liquidator for itself or a substantial portion of its
property, assets, or business, or to effect a plan or other arrangement with its
creditors, or shall file any answer admitting the jurisdiction of the court and
the material allegations of any involuntary petition filed against it in any
bankruptcy, insolvency, or similar proceeding, or shall be adjudicated bankrupt,
or shall make a general assignment for the benefit of creditors, or shall
consent to, or acquiesce in the appointment of, a receiver, trustee, custodian,
or liquidator for itself or a substantial portion of its property, assets, or
business, or (ii) corporate action shall be taken by the Parent, Commonwealth,
the Borrower or any Significant
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Subsidiary for the purpose of effectuating any of the foregoing; or
(i) involuntary proceedings or an involuntary petition shall be commenced
or filed against the Parent, Commonwealth, the Borrower or any Significant
Subsidiary under any bankruptcy, insolvency, or similar law or seeking the
dissolution, liquidation, or reorganization of the Parent, Commonwealth, the
Borrower or such Significant Subsidiary (as the case may be) or the appointment
of a receiver, trustee, custodian, or liquidator for the Parent, Commonwealth,
the Borrower or such Significant Subsidiary (as the case may be) or of a
substantial part of the property, assets, or business of the Parent,
Commonwealth, the Borrower or such Significant Subsidiary (as the case may be),
or any writ, judgment, warrant of attachment, execution, or similar process
shall be issued or levied against a substantial part of the property, assets, or
business of the Parent, Commonwealth, the Borrower or any Significant
Subsidiary, and such proceedings or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution, or similar process shall not
be released, vacated, or fully bonded, within 45 days after commencement,
filing, or levy, as the case may be; or
(j) any judgment or order for the payment of money in excess of (i)
$5,000,000 shall be rendered against the Parent or the Borrower or any
Subsidiary of the Borrower or any of their respective properties, or (ii)
$20,000,000 shall be rendered against Commonwealth or any of its properties, and
either (A) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order, or (B) there shall be any period during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(k) (i) the institution of any steps by the Borrower or any sponsor of a
Pension Plan to terminate a Pension Plan, if as a result of such termination the
Borrower or any of its Subsidiaries could be required to make a contribution to
such Pension Plan, or could incur a liability or obligation to such Pension
Plan, in excess of $5,000,000, or (ii) a contribution failure occurs with
respect to any Pension Plan sufficient to give rise to a Lien under Section
302(f) of ERISA; or
(l) the Borrower or any of its Subsidiaries shall default in the payment
when due, or in the performance or
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observance of, any Debt described in clause (iii), (vii), or (viii) of the
definition of "Debt" or any material obligation of, or material condition agreed
to by the Borrower or such Subsidiary, with respect to any material purchase or
lease of goods or services (subject to any applicable grace period and except as
waived or to the extent that the existence of any such default is being
contested in good faith by appropriate proceedings and reserves therefor are
being maintained in accordance with GAAP); or
(m) the Parent shall fail to own directly 100% of the issued and
outstanding shares of capital stock of the Borrower or 80% of the issued and
outstanding shares of voting capital stock of Commonwealth; or
(n) any provision of the Guaranty or any of the subordination provisions
of any Debt incurred by the Borrower pursuant to Section 6.02(b)(iii) shall for
any reason (except pursuant to the terms thereof) cease to be valid and binding
on the Parent or the Parent shall so assert in writing; or
(o) any provision of any Loan Document to which the Borrower is a party
shall for any reason (except pursuant to the terms thereof) cease to be valid
and binding on the Borrower or the Borrower shall so assert in writing; or
(p) at any time any LC Bank shall have been served with or otherwise
subjected to a court order, injunction, or other process or decree issued or
granted at the instance of the Borrower restraining or seeking to restrain such
LC Bank from paying any amount under any Letter of Credit issued by it and
either (i) there has been a drawing under such Letter of Credit which such LC
Bank would otherwise be obligated to pay or (ii) the stated expiration date or
any reduction of the stated amount of such Letter of Credit has occurred but the
right of the beneficiary to draw thereunder has been extended in connection with
the pendency of the related court action or proceeding; or
(q) the Parent shall receive cash dividends from its Subsidiaries in any
two consecutive fiscal quarters of the Parent in an aggregate amount less than
$150,000,000.
SECTION 7.02. REMEDIES. If any Event of Default has occurred and is
continuing, then the Agent shall at
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the request, or may with the consent, of the Majority Lenders, upon notice to
the Borrower (i) declare the Commitments and the obligation of each Lender to
make Advances (other than Advances under Section 3.04 hereof) and of any LC Bank
to issue a Letter of Credit to be terminated, whereupon the same shall forthwith
terminate, (ii) declare the Notes, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be forthwith due
and payable, whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower, and (iii) make demand upon the Borrower to, and forthwith upon such
demand the Borrower shall, deposit with the Agent in same day funds in a special
interest-bearing cash escrow account maintained by the Agent at the Agent's
office and pledged to the Agent for the benefit of the Lenders pursuant to
documentation satisfactory to the Agent, an amount equal to the aggregate LC
Outstandings, such cash escrow to be held for the benefit of the LC Banks and
the Lenders as security for the payment obligations of the Borrower under this
Agreement, the Notes and the other Loan Documents; provided, however, that in
the event of an actual or deemed entry of an order for relief with respect to
the Borrower under the Bankruptcy Code, (A) the Commitments and the obligation
of each Lender to make Advances and of any LC Bank to issue any Letter of Credit
shall automatically be terminated and (B) the Notes, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower. Notwithstanding anything to the contrary
contained herein, no notice given or declaration made by the Agent pursuant to
this Section 7.02 shall affect (i) 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 or (ii) the participatory interest of each Lender
in each such payment thereunder.
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ARTICLE VIII
THE AGENT
SECTION 8.01. AUTHORIZATION AND ACTION. Each Lender and LC Bank hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement and the other Loan Documents as are
delegated to the Agent by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto. As to any matters not expressly
provided for by this Agreement or any other Loan Document (including, without
limitation, enforcement or collection of the Notes), the Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that the Agent shall not be required to take any action which
exposes the Agent to personal liability or which is contrary to this Agreement
or applicable law. The Agent agrees to give to each Lender prompt notice of each
notice given to it by the Borrower pursuant to the terms of this Agreement.
SECTION 8.02. AGENT'S RELIANCE, ETC. Neither the Agent nor any of its
directors, officers, agents, or employees shall be liable to any Lender, any LC
Bank or the Borrower for any action taken or omitted to be taken by it or them
under or in connection with this Agreement or any other Loan Document, except
for its or their own gross negligence or wilful misconduct. Without limitation
of the generality of the foregoing, the Agent: (a) may treat the payee of any
Note as the holder thereof until the Agent receives and accepts a Lender
Assignment entered into by the Lender which is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07;
(b) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender or LC Bank and shall not be responsible
to any Lender or LC Bank for any statements, warranties, or representations
(whether written or oral) made in or in connection with this
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Agreement or any other Loan Document; (d) shall not have any duty to ascertain
or to inquire as to the performance or observance of any of the terms, covenants
or conditions of this Agreement or any other Loan Document on the part of the
Borrower or the Parent or to inspect the property (including the books and
records) of the Borrower or the Parent; (e) shall not be responsible to any
Lender or LC Bank for the due execution, legality, validity, enforceability,
genuineness, sufficiency, or value of this Agreement, any other Loan Document,
or any other instrument or document furnished pursuant hereto or thereto; and
(f) shall incur no liability under or in respect of this Agreement or any other
Loan Document by acting upon any notice, consent, certificate, or other
instrument or writing (which may be by telecopier, telegram, cable, or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 8.03. CITIBANK AND AFFILIATES. With respect to its Commitment,
the Advances made by it and the Notes issued to it, Citibank shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not the Agent; and the term "Bank" or "Banks" and
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Citibank in its individual capacity. Citibank and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, and generally
engage in any kind of business with, the Borrower, any of its Subsidiaries and
any Person who may do business with or own securities of the Borrower or any
such Subsidiary, all as if Citibank were not the Agent and without any duty to
account therefor to the Lenders.
SECTION 8.04. LENDER CREDIT DECISION. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements referred to in Section 5.01(e) and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 8.05. INDEMNIFICATION. The Lenders agree to indemnify the Agent
(to the extent not reimbursed by
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the Borrower), ratably according to the respective principal amounts of the
Notes then held by each of them (or if no Notes are at the time outstanding or
if any Notes are held by Persons which are not Lenders, ratably according to the
respective Percentages of the Lenders), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by the Agent under
this Agreement, provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, or disbursements resulting from the Agent's gross negligence or
wilful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its ratable share of any out-of-
pocket expenses (including counsel fees) incurred by the Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment, or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, to the extent that the Agent is not reimbursed for such expenses
by the Borrower.
SECTION 8.06. SUCCESSOR AGENT. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower and may be removed
at any time with or without cause by the Majority Lenders, with any such
resignation or removal to become effective only upon the appointment of a
successor Agent pursuant to this Section 8.06. Upon any such resignation or
removal, the Majority Lenders shall have the right to appoint a successor Agent,
which shall be another commercial bank or trust company reasonably acceptable to
the Borrower organized under the laws of the United States or of any State
thereof. If no successor Agent shall have been so appointed by the Majority
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving of notice of resignation or the Majority Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be another commercial bank or
trust company organized under the laws of the United States of any State thereof
reasonably acceptable to the Borrower. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor
65
Agent shall thereupon 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 under this Agreement. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article VIII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Agreement. Notwithstanding the
foregoing, the Borrower shall not have any approval rights with respect to any
successor Agent if, at the time of appointment of such successor Agent, an
Unmatured Default or an Event of Default shall have occurred and be continuing.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. AMENDMENTS, ETC. No amendment or waiver of any provision
of any Loan Document, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Majority Lenders and, in the case of any amendment, the Borrower, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no amendment,
waiver or consent shall, unless in writing and signed by all the Lenders, do any
of the following: (a) waive, modify or eliminate any of the conditions specified
in Article IV, (b) increase the Commitments of any of the Lenders or subject any
of the Lenders to any additional obligations, (c) except as otherwise provided
in Section 2.18, extend the term of the Commitments of any of the Lenders, (d)
reduce the principal of, or interest on, the Notes, any Applicable Margin or any
fees or other amounts payable hereunder, (e) postpone any date fixed for any
payment of principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, (f) change the Percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number of Lenders, which
shall be required for the Lenders or any of them to take any action hereunder,
(g) amend any Loan Document in a manner intended to prefer one or more Lenders,
(h) release the Parent from its guaranty obligations under the Guaranty or (i)
amend this Section 9.01; and provided, further, that no amendment, waiver or
consent shall, unless in writing and signed by the Agent in addition to the
Lenders required above to take such
66
action, affect the rights or duties of the Agent under this Agreement or any
other Loan Document.
SECTION 9.02. NOTICES, ETC. All notices and other communications
provided for hereunder and under the other Loan Documents shall be in writing
(including telecopier, telegraphic, telex or cable communication) and mailed,
telecopied, telegraphed, telexed, cabled, or delivered, if to the Borrower, at
its address at P.O. Box A-3005, 10 South Dearborn Street, 38th Floor, Chicago,
Illinois 60690-3005, Attention: Treasurer (Telephone: 312.394.3153 or
312.394.8203; and Telecopier 312.394.4082); if to any Bank, at its Domestic
Lending Office specified opposite its name on Schedule I hereto; if to any other
Lender, at its Domestic Lending Office specified in the Lender Assignment
pursuant to which it became a Lender; and if to the Agent, at its address at 399
Park Avenue, New York, New York 10043, Attention: Utilities Department, North
American Finance Group (Telephone: 312.559.1500; Telecopier 212.793.6130); or,
as to each party, at such other address as shall be designated by such party in
a written notice to the other parties. All such notices and communications
shall, when mailed, telecopied, telegraphed, telexed or cabled, be effective
five days after being deposited in the mails, or when delivered to the telegraph
company, telecopied, confirmed by telex answerback or delivered to the cable
company, respectively, except that notices and communications to the Agent
pursuant to Article II or VIII shall not be effective until received by the
Agent.
SECTION 9.03. NO WAIVER; REMEDIES. No failure on the part of any Lender,
any LC Bank or the Agent to exercise, and no delay in exercising, any right
hereunder or under any other Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. COSTS, EXPENSES, TAXES AND INDEMNIFICATION. (a) The
Borrower agrees to pay on demand all costs and expenses of the Agent in
connection with the preparation (including, without limitation, printing costs),
negotiation, execution, delivery, administration, modification and amendment of
this Agreement and the other Loan Documents, and the other documents and
instruments to be delivered hereunder and thereunder, including, without
limitation, the reasonable
67
fees and out-of-pocket expenses of counsel for the Agent with respect thereto
and with respect to advising the Agent as to its rights and responsibilities
under this Agreement and the other Loan Documents. The Borrower further agrees
to pay on demand all costs and expenses, if any (including, without limitation,
reasonable counsel fees and expenses of outside counsel and internal counsel),
of the Agent, the Lenders and the LC Banks in connection with the enforcement
(whether through negotiations, legal proceedings, or otherwise) of this
Agreement and the other Loan Documents and the other documents and instruments
to be delivered hereunder and thereunder, including, without limitation,
reasonable counsel fees and expenses in connection with the enforcement of
rights under this Section 9.04(a). In addition, the Borrower shall pay any and
all stamp and other taxes payable or determined to be payable in connection with
the execution and delivery of this Agreement and the other Loan Documents, and
the other documents and instruments to be delivered hereunder and thereunder,
and agrees to save the Agent and each Lender harmless from and against any and
all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes.
(b) If any payment of principal of, or Conversion of any Eurodollar Rate
Advance is made other than on the last day of the Interest Period for such
Advance or as a result of a payment or Conversion pursuant to Section 2.09(f),
2.10, 2.11, 2.12 or 2.14 or acceleration of the maturity of the Notes pursuant
to Section 7.02 or for any other reason, the Borrower shall, upon demand by any
Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs, or expenses which it may reasonably incur as a result
of such payment or Conversion, including, without limitation, any loss, cost, or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower hereby agrees to indemnify and hold harmless each Lender,
each LC Bank, the Agent, counsel to the Agent and their respective officers,
directors, partners, employees and Affiliates (each, an "INDEMNIFIED PERSON")
from and against any and all claims, damages, losses, liabilities, costs, or
expenses (including reasonable attorney's fees and expenses, whether or not such
Indemnified Person is named as a
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party to any proceeding or is otherwise subjected to judicial or legal process
arising from any such proceeding) which any of them may incur or which may be
claimed against any of them by any Person:
(i) by reason of or in connection with the execution, delivery,
or performance of any of the Loan Documents or any transaction
contemplated thereby, or the use by the Borrower of the proceeds of any
Extension of Credit; and
(ii) in connection with or resulting from the utilization,
storage, disposal, treatment, generation, transportation, release, or
ownership of any Hazardous Substance (i) at, upon, or under any property
of the Borrower or any of its Affiliates or (ii) by or on behalf of the
Borrower or any of its Affiliates at any time and in any place.
(d) The Borrower's obligations under this Section 9.04 shall survive the
repayment of all amounts owing to the Lenders, the LC Banks and the Agent under
the Loan Documents and the termination of the Commitments. If and to the extent
that the obligations of the Borrower under this Section 9.04 are unenforceable
for any reason, the Borrower agrees to make the maximum contribution to the
payment and satisfaction thereof which is permissible under applicable law.
SECTION 9.05. RIGHT OF SET-OFF. (a) Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 7.02 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 7.02,
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 and all of the
obligations of the Borrower now or hereafter existing under any Loan Document
and any Note held by such Lender, irrespective of whether or not such Lender or
LC Bank shall have made any demand under such Loan Document or such Note and
although such obligations may be unmatured. Each Lender and LC Bank agrees
promptly to notify the Borrower after any such set-off and application made by
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such Lender or LC Bank, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
and LC Bank under this Section 9.05 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Lender or LC
Bank may have.
(b) The Borrower agrees that it shall have no right of set-off, deduction,
or counterclaim in respect of its obligations hereunder, and that the
obligations of the Lenders hereunder are several and not joint. Nothing
contained herein shall constitute a relinquishment or waiver of the Borrower's
rights to any independent claim that the Borrower may have against the Agent,
any Lender or any LC Bank for the Agent's, such Lender's or such LC Bank's, as
the case may be, gross negligence or wilful misconduct, but no Lender or LC Bank
shall be liable for the conduct of the Agent, any other Lender or any other LC
Bank, and the Agent shall not be liable for the conduct of any Lender or LC
Bank.
SECTION 9.06. BINDING EFFECT. This Agreement shall become effective on
the Effective Date and thereafter shall be binding upon and inure to the benefit
of the Borrower, the Agent, each LC Bank and each Lender and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights or obligations hereunder or any interest herein without the
prior written consent of the Lenders.
SECTION 9.07. ASSIGNMENTS AND PARTICIPATIONS. (a) Each Lender may, with
the consent of the Borrower (such consent not to be unreasonably withheld or
delayed), assign to one or more banks or other entities all or a portion of its
rights and obligations under this Agreement and the other Loan Documents
(including, without limitation, all or a portion of its Commitment, the Advances
owing to it and the Note or Notes held by it); provided, however, that (i) each
such assignment shall be of a constant, and not a varying, percentage of all of
the assigning Lender's rights and obligations under this Agreement, (ii) after
giving effect to any partial assignment, the amount of the Commitment of each of
the assigning and the assignee Lender shall in no event be less than
$10,000,000, (iii) each such assignment shall be to an Eligible Assignee, and
(iv) the parties to each such assignment shall execute and deliver to the Agent
a duly completed Lender Assignment, together with any Note or Notes subject to
such assignment and a processing and recordation fee of $2,500; and provided,
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further, however, that the consent of the Borrower shall not be required for any
assignments (A) by a Lender to any of its Affiliates or (B) made during the
continuance of an Event of Default. Promptly following its receipt of such
Lender Assignment, Note or Notes and fee, the Agent shall accept and record such
Lender Assignment in the Register. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Lender
Assignment, which effective date shall be at least five Business Days after the
execution thereof, (x) the assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to it
pursuant to such Lender Assignment, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it to an Eligible
Assignee pursuant to such Lender Assignment, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of a Lender
Assignment 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); provided, however, that the limitation set forth in clause (ii), above,
shall not apply if an Event of Default shall have occurred and be continuing and
the Agent shall have declared all Advances to be immediately due and payable
hereunder. In addition to, and notwithstanding, the foregoing, any Lender may at
any time pledge or assign for security purposes its rights to receive payments
hereunder (or any part thereof) to any Federal Reserve Bank; provided, however,
that no such pledge or assignment shall relieve the pledging or assigning Lender
from its obligations hereunder or grant to such Federal Reserve Bank any right
to direct such Lender with respect to any action which such Lender would be
entitled to take or omit to take hereunder but for the existence of such pledge
or assignment.
(b) By executing and delivering a Lender Assignment, the Lender assignor
thereunder and the assignee thereunder confirm to and agree with each other and
the other parties hereto as follows: (i) other than as provided in such Lender
Assignment, 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 any Loan Document or any other
instrument or document furnished pursuant thereto or the execution, legality,
validity, enforceability, genuineness, sufficiency, or value of any
71
Loan Document or any other instrument or document furnished pursuant thereto;
(ii) such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
Parent or the performance or observance by the Borrower or the Parent of any of
their obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of each Loan Document, together with such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such Lender Assignment; (iv) such assignee will, independently and
without reliance upon the Agent, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Loan Documents are required to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to in Section 9.02 a
copy of each Lender Assignment delivered to and accepted by it and a register
for the recordation of the names and addresses of the Lenders and the Commitment
of, and principal amount of the Advances owing to, each Lender from time to time
(the "REGISTER"). The entries in the Register shall be conclusive and binding
for all purposes, absent manifest error, and the Borrower, the Agent and the
Lenders may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(d) Upon its receipt of a Lender Assignment executed by an assigning
Lender and an assignee representing that it is an Eligible Assignee, together
with any Note or Notes subject to such assignment, the Agent shall, if such
Lender Assignment has been completed and is in substantially the form of Exhibit
C hereto, (i)
72
accept such Lender Assignment, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the Borrower. Within 15
Business Days after its receipt of such notice, the Borrower shall execute and
deliver to the Agent in exchange for the surrendered Note or Notes a new Note to
such Eligible Assignee in an amount equal to the Commitment assumed by it
pursuant to such Lender Assignment and, if the assigning Lender has retained a
Commitment hereunder, a new Note to the assigning Lender in an amount equal to
the Commitment retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes and shall be dated the effective date of such Lender
Assignment and shall otherwise be in substantially the form of Exhibit A hereto.
(e) Each Lender may sell participations to one or more banks, financial
institutions, or other entities in all or a portion of its rights and
obligations under the Loan Documents (including, without limitation, all or a
portion of its Commitment, the Advances owing to it and the Note or Notes held
by it); provided, however, that (i) such Lender's obligations under this
Agreement (including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, (v) such Lender shall not
agree with any such participant (other than an Affiliate of such Lender) that
such Lender shall take directions from such participant with respect to any
action which such Lender shall be entitled to take or omit to take hereunder or
under or in respect of the other Loan Documents, other than, in the case of a
participant in an Advance or a Commitment, actions under Section 2.18 and
Section 9.01(a), (b), (c), (d), or (g), and (vi) such participant shall be
entitled to the cost protection provisions contained in Sections 2.08 and 2.13
only if the Lender from which such participant acquired its participation would
have been entitled to such cost protection provisions had such Lender not sold
such participation hereunder.
73
(f) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 9.07, 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, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any confidential information received by it from such Lender.
(g) If any Lender (or any bank, financial institution, or other entity to
which such Lender has sold a participation) shall (i) make any demand for
payment under Section 2.08 or 2.13, (ii) give notice to the Agent pursuant to
Section 2.14, (iii) either (A) not have outstanding unsecured long-term
indebtedness rated at or above "investment grade" by at least two of Moody's,
S&P and D&P, or (B) not have outstanding short-term unsecured indebtedness rated
at or above A-2, P-2, or D-2 by at least two of Moody's, S&P and D&P, or (iv)
determine not to extend the Termination Date in response to any request by the
Borrower pursuant to Section 2.18, then (1) in the case of any demand made under
clause (i) or the occurrence of the event described in clause (ii), within 30
days after any such demand (if, but only if, in the case of any demanded payment
described in clause (i), such demanded payment has been made by the Borrower),
(2) in the case of the occurrence of any event described in clause (iii), at any
time thereafter, and (3) in the case of the occurrence of any event described in
clause (iv), at any time prior to the then-scheduled Termination Date for such
Lender, the Borrower may, with the approval of the Agent (which approval shall
not be unreasonably withheld), and provided that no Event of Default or
Unmatured Default shall then have occurred and be continuing, demand that such
Lender assign in accordance with this Section 9.07 to one or more Eligible
Assignees designated by the Borrower all (but not less than all) of such
Lender's Commitment and the Advances owing to it within the period ending on the
later to occur of the last day in the period described in clause (1), (2), or
(3), above, as applicable, and the last day of the longest of the then current
Interest Periods for such Advances. If any such Eligible Assignee designated by
the Borrower shall fail to consummate such assignment on terms acceptable to
such Lender, or if the Borrower shall fail to designate any such Eligible
Assignees for all or part of such Lender's Commitment or Advances, then such
74
demand by the Borrower shall become ineffective; it being understood for
purposes of this subsection (g) that such assignment shall be conclusively
deemed to be on terms acceptable to such Lender, and such Lender shall be
compelled to consummate such assignment to an Eligible Assignee designated by
the Borrower, if such Eligible Assignee (x) shall agree to such assignment by
entering into a Lender Assignment with such Lender, (y) shall offer compensation
to such Lender in an amount equal to all amounts then owing by the Borrower to
such Lender hereunder and under the Note made by the Borrower to such Lender,
whether for principal, interest, fees, costs or expenses (other than the
demanded payment referred to above and payable by the Borrower as a condition to
the Borrower's right to demand such assignment), or otherwise, and (z) shall pay
to the Agent the $2,500 processing and recordation fee referred to in Section
9.07(a)(iii).
SECTION 9.08. WAIVER OF JURY TRIAL. THE AGENT, THE LENDERS, THE LC BANKS
AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE AGENT, SUCH LENDERS, SUCH LC
BANKS OR THE BORROWER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT,
THE LC BANKS AND THE LENDERS ENTERING INTO THIS AGREEMENT.
SECTION 9.09. CONSENT. Unless otherwise specified as being within the
sole discretion of the Agent, the Lenders, the LC Banks, the Majority Lenders or
the Borrower, whenever the consent or approval of the Agent, the Lenders, the
Majority Lenders, or the Borrower, respectively, is required herein, such
consent or approval shall not be unreasonably withheld or delayed.
SECTION 9.10. GOVERNING LAW. This Agreement and the other Loan Documents
shall be governed by, and construed in accordance with, the laws of the State of
New York. Each of the Borrower, the Lenders, the LC Banks and the Agent (i)
irrevocably submits to the non-exclusive jurisdiction of any New York State
Court or Federal court sitting in New York City in any action arising out of any
Loan Document, (ii) agrees that all claims in such action may be decided in such
court, (iii) waives, to the fullest extent it may effectively do so,
75
the defense of an inconvenient forum and any objection to venue and (iv)
consents to the service of process by mail. A final judgment in any such action
shall be conclusive and may be enforced in other jurisdictions. Nothing herein
shall affect the right of any party to serve legal process in any manner
permitted by law or affect its right to bring any action in any other court.
SECTION 9.11. RELATION OF THE PARTIES; NO BENEFICIARY. No term,
provision or requirement, whether express or implied, of any Loan Document, or
actions taken or to be taken by any party thereunder, shall be construed to
create a partnership, association, or joint venture between such parties or any
of them. No term or provision of the Loan Documents shall be construed to
confer a benefit upon, or grant a right or privilege to, any Person other than
the parties thereto.
SECTION 9.12. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 9.13. SEVERABILITY. Any provision of this Agreement or any other
Loan Document that is prohibited, unenforceable or invalid in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition, unenforceability or invalidity without invalidating the remaining
provisions hereof or thereof or affecting the validity, enforceability or
legality of such provision in any other jurisdiction.
SECTION 9.14. 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.
SECTION 9.15. ENTIRE AGREEMENT. This Agreement, the Exhibits and
Schedules hereto and the other Loan Documents constitute the entire agreement
and understanding among the parties hereto and thereto relative to the subject
matter hereof and thereof. Any previous agreement among the parties with
respect to the subject matter hereof and thereof is superseded by this
Agreement, the Exhibits and Schedules hereto and the
76
other Loan Documents. Nothing in this Agreement or in the other Loan Documents,
expressed or implied, is intended to confer upon any party other than the
parties hereto and thereto any rights, remedies, obligations, or liabilities
under or by reason of this Agreement or the other Loan Documents.
RCA S-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
UNICOM ENTERPRISES INC.
By Dennis F. O'Brien
-----------------------------------
Name: Dennis F. O'Brien
Title: Treasurer
CITIBANK, N.A., as Agent
By
-----------------------------------
Name: Emily J. Eisenlohr
Title: Attorney-In-Fact
SIGNATURE PAGE TO THE UNICOM REVOLVING CREDIT AGREEMENT
RCA S-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
UNICOM ENTERPRISES INC.
By
-----------------------------------
Name: Dennis F. O'Brien
Title: Treasurer
CITIBANK, N.A., as Agent
By Emily J. Eisenlohr
------------------------------------
Name: Emily J. Eisenlohr
Title: Attorney-In-Fact
SIGNATURE PAGE TO THE UNICOM REVOLVING CREDIT AGREEMENT
RCA S-2
COMMITMENT BANK
---------- ----
$21,000,000 CITIBANK, N.A.
By Emily J. Eisenlohr
------------------------------------
Name: Emily J. Eisenlohr
SIGNATURE PAGE TO THE UNICOM REVOLVING CREDIT AGREEMENT
RCA S-3
COMMITMENT BANK
---------- ----
$21,000,000 THE FIRST NATIONAL BANK OF
CHICAGO
By Susan Verback
-----------------------------------
Name: Susan Verback
Title: Assistant Vice-President
SIGNATURE PAGE TO THE UNICOM REVOLVING CREDIT AGREEMENT
RCA S-4
COMMITMENT BANK
---------- ----
$21,000,000 MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By Robert M. Osieski
----------------------------------
Name: Robert M. Osieski
Title: Vice President
SIGNATURE PAGE TO THE UNICOM REVOLVING CREDIT AGREEMENT
RCA S-5
COMMITMENT BANK
---------- ----
$21,000,000 TORONTO DOMINION (TEXAS), INC.
By Frederic B. Hawley
-----------------------------------
Name: Frederic Hawley
Title: Vice President
SIGNATURE PAGE TO THE UNICOM REVOLVING CREDIT AGREEMENT
RCA S-6
COMMITMENT BANK
---------- ----
$17,000,000 BANK OF AMERICA ILLINOIS
By Ronald E. McKaig
------------------------------------
Name: Ronald E. McKaig
Title: Vice President
SIGNATURE PAGE TO THE UNICOM REVOLVING CREDIT AGREEMENT
RCA S-7
COMMITMENT BANK
---------- ----
$17,000,000 ROYAL BANK OF CANADA
By Gordon MacArthur
------------------------------------
Name: Gordon MacArthur
Title: Manager
SIGNATURE PAGE TO THE UNICOM REVOLVING CREDIT AGREEMENT
RCA S-8
COMMITMENT BANK
---------- ----
$17,000,000 THE BANK OF NEW YORK
By Nathan S. Howard
-----------------------------------
Name: Nathan S. Howard
Title: Vice President
SIGNATURE PAGE TO THE UNICOM REVOLVING CREDIT AGREEMENT
RCA S-9
COMMITMENT BANK
---------- ----
$13,000,000 BANK OF MONTREAL
By J. Michael Linton
-------------------------------
Name: J. Michael Linton
Title: Director
SIGNATURE PAGE TO THE UNICOM REVOLVING CREDIT AGREEMENT
RCA S-10
COMMITMENT BANK
---------- ----
$13,000,000 CHEMICAL BANK
By Beth Herman
-----------------------------------
Name: Beth F. Herman
Title: Vice President
SIGNATURE PAGE TO THE UNICOM REVOLVING CREDIT AGREEMENT
RCA S-11
COMMITMENT BANK
---------- ----
$13,000,000 CIBC INC.
By P. Saggan
----------------------------------
Name: Peter Saggan
Title: Vice President
SIGNATURE PAGE TO THE UNICOM REVOLVING CREDIT AGREEMENT
RCA S-12
COMMITMENT BANK
---------- ----
$13,000,000 MELLON BANK N.A.
By A. K. Marsh
----------------------------------
Name: A. K. Marsh
Title: Vice President
SIGNATURE PAGE TO THE UNICOM REVOLVING CREDIT AGREEMENT
RCA S-13
COMMITMENT BANK
---------- ----
$13,000,000 THE SUMITOMO BANK, LTD.
By K. Iwasawa
-----------------------------------
Name: Katsuyasu Iwasawa
Title: Joint General Manager
SIGNATURE PAGE TO THE UNICOM REVOLVING CREDIT AGREEMENT
SCHEDULE I
UNICOM ENTERPRISES INC.
$200,000,000 Credit Agreement, dated as of November 22, 1994, among
Unicom Enterprises Inc., the Banks named therein and Citibank, N.A., as Agent
NAME OF BANK DOMESTIC LENDING OFFICE CD LENDING OFFICE EURODOLLAR LENDING OFFICE
-------------------------- ----------------------------------- ------------------------ -------------------------
Bank of America Illinois 231 South Lasalle Street-1036 Same as Domestic Lending Same as Domestic Lending
Chicago, Illinois 60697-1036 Office Office
Telephone: 312.828.6720
Telecopier: 312.987.5614
Attention: Mr. Robert I. Ingersoll
The Bank of New York Public Utilities Division Same as Domestic Lending Same as Domestic Lending
One Wall Street, 19th Floor Office Office
New York, New York 10286
Telephone: 212.635.7916
Telecopier: 212.635.7923/24
Attention: Mr. Nathan S. Howard
Bank of Montreal 115 South LaSalle, 12th Floor Same as Domestic Lending Same as Domestic Lending
Chicago, Illinois 60603 Office Office
Telephone: 312.750.3876
Telecopier: 312.750.4314
Attention: Mr. Howard Turner
Chemical Bank Utilities and Communications Same as Domestic Lending Same as Domestic Lending
270 Park Avenue, 8th Floor Office Office
New York, New York 10017
Telephone: 212.270.6993
Telecopier: 212.270.3841
Attention: Ms. Beth Herman
NAME OF BANK DOMESTIC LENDING OFFICE CD LENDING OFFICE EURODOLLAR LENDING OFFICE
-------------------------- ----------------------------------- ------------------------ -------------------------
CIBC Inc. Two Paces West Same as Domestic Lending Same as Domestic Lending
2727 Paces Ferry Road, Suite 1200 Office Office
Atlanta, Georgia 30339
Telephone: 404.319.4836
Telecopier: 404.319.4950
Attention: Ms. Clare Coyne
Citibank, N.A. 399 Park Avenue, Same as Domestic Lending Same as Domestic Lending
4th Floor, zone 22 Office Office
New York, New York 10043
Telephone: 212.559.6986
Telecopier: 212.793.6130
Attention: Ms. Emily J. Eisenlohr
The First National Bank of One First National Plaza, Same as Domestic Lending Same as Domestic Lending
Chicago Suite 0363 Office Office
Chicago, Illinois 60670-0363
Telephone: 312.732.9780
Telecopier: 312.732.3055
Attention: Mr. Robert G. Bussa
Mellon Bank, N.A. Three Mellon Bank Center Same as Domestic Lending Same as Domestic Lending
Suite 2305 Office Office
Pittsburgh, Pennsylvania 15259
Telephone: 412.234.9448
Telecopier: 412.234.5409
412.236.2028
Attention: Ms. Judy Laughrey
Morgan Guaranty Trust 60 Wall Street Same as Domestic Lending Same as Domestic Lending
Company of New York New York, New York 10260 Office Office
Telephone: 212.648.7420
Telecopier: 212.648.5014
Attention: Ms. Sheila J. O'Connell
-2-
NAME OF BANK DOMESTIC LENDING OFFICE CD LENDING OFFICE EURODOLLAR LENDING OFFICE
-------------------------- ----------------------------------- ------------------------ -------------------------
Royal Bank of Canada Grand Cayman (North America No. 1) Same as Domestic Lending Same as Domestic Lending
Branch Office Office
Royal Bank of Canada
c/o New York Branch
Financial Square, 23rd Floor
New York, New York 10005-3531
Telephone: 212.428.2372
Telecopier: 212.428.6324
Attention: Manager, Credit
Administration
with a copy to:
Royal Bank of Canada
One North Franklin, Suite 700
Chicago, Illinois 60606
Telephone: 312.551.1613
Telecopier: 312.551.0805
Attention: Mr. Gordon MacArthur
The Sumitomo Bank, Ltd. 233 South Wacker Drive Same as Domestic Lending Same as Domestic Lending
Suite 4800 Office Office
Chicago, Illinois 60606
Telephone: 312.876.6435
Telecopier: 312.876.6436
Attention: Mr. John E. Buchfink
Toronto Dominion (Texas), Houston Agency Same as Domestic Lending Same as Domestic Lending
Inc. Suite 1700 Office Office
909 Fannin
Houston, Texas 77010
Telephone: 713.653.8281
Telecopier: 713.951.9921
Attention: Mr. Fred Harley
-3-
EXHIBIT A
FORM OF NOTE
U.S.$______________ Dated: _________, 19__
FOR VALUE RECEIVED, the undersigned, UNICOM ENTERPRISES INC., an Illinois
corporation (the "BORROWER"), HEREBY PROMISES TO PAY to the order of
___________________________ (the "LENDER") for the account of its Applicable
Lending Office (such term and other capitalized terms herein being used as
defined in the Credit Agreement referred to below) the principal sum of
U.S.$[amount of the Lender's Commitment in figures] or, if less, the aggregate
principal amount of the Advances made by the Lender to the Borrower pursuant to
the Credit Agreement outstanding on the Termination Date applicable to the
Lender.
The Borrower promises to pay interest on the unpaid principal amount of
each Advance from the date of such Advance until such principal amount is paid
in full, at such interest rates, and payable at such times, as are specified in
the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Citibank, N.A., as Agent, at 399 Park Avenue, New York, New
York 10043, in same day funds. Each Advance made by the Lender to the Borrower
pursuant to the Credit Agreement, and all payments made on account of principal
thereof, shall be recorded by the Lender and, prior to any transfer hereof,
endorsed on the grid attached hereto which is part of this Promissory Note,
provided that the failure to so record any Advance or any payment on account
thereof shall not affect the payment obligations of the Borrower hereunder or
under the Credit Agreement.
This Promissory Note is one of the Notes referred to in, and is entitled
to the benefits of, the Credit Agreement, dated as of November 22, 1994 (as
amended, modified or supplemented from time to time, the "CREDIT AGREEMENT"),
among the Borrower, the Lender and certain other banks parties thereto, and
Citibank, N.A., as Agent for the Lender and such other banks. The Credit
Agreement, among other things, (i) provides for the making of Advances by the
Lender to the Borrower from time to time in an aggregate amount not to exceed at
any time outstanding the U.S. dollar amount first above
2
mentioned, the indebtedness of the Borrower resulting from each such Advance
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.
UNICOM ENTERPRISES INC.
By___________________________
Name:
Title:
ADVANCES, INTEREST PERIODS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------
Interest Amount of
Period (if Principal Unpaid
Amount of any) of Paid or Principal Notation
Date Advance Advance Prepaid Balance Made By
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EXHIBIT B-1
FORM OF NOTICE OF BORROWING
Citibank, N.A., as Agent for the
Lenders parties to the Credit
Agreement referred to below
399 Park Avenue
New York, New York 10043
[Date]
Attention: Utilities Department
North American Finance Group
Ladies and Gentlemen:
The undersigned, Unicom Enterprises Inc., refers to the Credit Agreement,
dated as of November 22, 1994 (as amended, modified or supplemented from time to
time, the "CREDIT AGREEMENT", the terms defined therein being used herein as
therein defined), among the undersigned, certain Lenders parties thereto and
Citibank, N.A., as Agent for said Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"PROPOSED BORROWING") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ________________,
19__.
(ii) The Type of Advances to be made in connection with the Proposed
Borrowing is [Alternate Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate principal amount of the Proposed Borrowing is
$___________.
2
[(iv) The Interest Period for each Advance made as part of the
Proposed Borrowing is ____ month[s].]*
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 5.01 of
the Credit Agreement are true and correct, before and after giving effect
to the Proposed Borrowing and to the application of the proceeds thereof,
as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from
such Proposed Borrowing or from the application of the proceeds thereof,
that constitutes an Event of Default or Unmatured Default.
Very truly yours,
UNICOM ENTERPRISES INC.
By _____________________________
Name:
Title:
----------------
* For Eurodollar Rate Advances only.
EXHIBIT B-2
FORM OF NOTICE OF CONVERSION
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043
[Date]
Attention: Utilities Department
North American Finance Group
Ladies and Gentlemen:
The undersigned, Unicom Enterprises Inc., refers to the Credit Agreement,
dated as of November 22, 1994 (as amended, modified or supplemented from time to
time, the "CREDIT AGREEMENT", the terms defined therein and not otherwise
defined herein being used herein as therein defined), among the Borrower, the
Lenders named therein and the Agent, and hereby gives you notice, irrevocably,
pursuant to Section 2.10 of the Credit Agreement that the undersigned hereby
requests a Conversion under the Credit Agreement, and in that connection sets
forth below the information relating to such Conversion (the "PROPOSED
CONVERSION") as required by Section 2.10 of the Credit Agreement:
(i) The Business Day of the Proposed Conversion is
____________________, _______.
(ii) The Type of Advances to be subject to the Proposed Conversion is
[Alternate Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate principal amount of the Advances to be subject
to the Proposed Conversion is $_________________.
(iv) The Type of Advances to which such Advances are proposed to be
Converted is [Alternate Base Rate Advances] [Eurodollar Rate Advances].
2
[(v) The Interest Period for each Advance made as part of the
Proposed Conversion is ____ month(s).]/1/
The undersigned hereby certifies that the Borrower's request for the
Proposed Conversion is made in compliance with Sections 2.01, 2.09 and 2.10 of
the Credit Agreement.
The undersigned hereby further certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Conversion:
(i) The representations and warranties contained in Section 5.01 of
the Credit Agreement (other than those contained in subsections (e) and
(f) thereof) and in Section 6 of the Guaranty (other than those contained
in subsections (f) and (g) thereof) are true and correct, before and after
giving effect to the Proposed Conversion, as though made on and as of such
date; and
(ii) No Unmatured Default or Event of Default has occurred and is
continuing, or would result from the Proposed Conversion.
Very truly yours,
UNICOM ENTERPRISES INC.
By___________________________
Title:
----------------
/1/ Delete for Base Rate Advances
EXHIBIT C
[FORM OF LENDER ASSIGNMENT]
ASSIGNMENT AND ACCEPTANCE
Dated ___________, 19__
Reference is made to the Credit Agreement, dated as of November 22, 1994
(as amended, modified or supplemented from time to time, the "CREDIT
AGREEMENT"), among Unicom Enterprises Inc., an Illinois corporation (the
"BORROWER"), the Lenders named therein and from time to time parties thereto and
Citibank, N.A., as Agent for the Lenders (the "AGENT"). Terms defined in the
Credit Agreement and not otherwise defined herein are used herein with the same
meaning.
_____________ (the "ASSIGNOR") and ____________ (the "ASSIGNEE") agree as
follows:
1. The Assignor hereby sells and assigns without recourse to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor, that
interest in and to all of the Assignor's rights and obligations under the Credit
Agreement as of the date hereof which represents the percentage interest
specified on Schedule 1 of all outstanding rights and obligations under the
Credit Agreement, including, without limitation, such interest in the Assignor's
Commitment, the Advances owing to the Assignor, the Assignor's participation in
Letters of Credit, and the Note[s] held by the Assignor. After giving effect to
such sale and assignment, the Assignee's Commitment and the amount of the
Advances owing to the Assignee will be as set forth in Section 2 of Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with any Loan Document or
any other instrument or document furnished pursuant thereto or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of any
Loan Document or any other instrument or document furnished pursuant thereto;
(iii) makes no representation
2
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower of
any of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto; and (iv) attaches the Note[s] referred to
in paragraph 1 above and requests that the Agent exchange such Note[s] for a new
Note payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto or new Notes payable to the order of the
Assignee in an amount equal to the Commitment assumed by the Assignee pursuant
hereto and the Assignor in an amount equal to the Commitment retained by the
Assignor under the Credit Agreement, respectively, as specified on Schedule 1
hereto.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 5.01(e) thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under the Credit Agreement as are delegated to the Agent
by the terms thereof, together with such powers as are reasonably incidental
thereto; (v) agrees that it will perform in accordance with their terms all of
the obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender; [and] (vi) specifies as its Domestic Lending Office
(and address for notices) and Eurodollar Lending Office the offices set forth
beneath its name on the signature pages hereof [and (vi) attaches the forms
prescribed by the Internal Revenue Service of the United States certifying that
it is exempt from United States withholding taxes with respect to all payments
to be made to the Assignee under the Credit Agreement and the Notes]./1/
4. Following the execution of this Assignment and Acceptance by the
Assignor, the Assignee and, if
----------------
/1/ If the Assignee is organized under the laws of a jurisdiction outside the
United States.
3
required pursuant to Section 9.07(a) of the Credit Agreement, the Borrower, it
will be delivered to the Agent for acceptance and recording by the Agent. The
effective date of this Assignment and Acceptance shall be the date of acceptance
thereof by the Agent, unless otherwise specified on Schedule 1 hereto (the
"EFFECTIVE ASSIGNMENT DATE").
5. Upon such acceptance and recording by the Agent, as of the Effective
Assignment Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Assignment Date, the Agent shall make all payments under the Credit
Agreement and the Notes in respect of the interest assigned hereby (including,
without limitation, all payments of principal, interest and fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods
prior to the Effective Assignment Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
Schedule 1
to
Assignment and Acceptance
Dated __________, 19__
Section 1.
----------
Percentage Interest: ____%
Section 2.
----------
Assignee's Commitment: $____
Aggregate Outstanding Principal
Amount of Advances owing to the Assignee: $____
A Note payable to the order of the Assignee
Dated: _________, 19__
Principal amount: $____
A Note payable to the order of the Assignor
Dated: _________, 19__
Principal amount: $____
Section 3.
----------
Effective Assignment Date/1/: _________, 19__
[NAME OF ASSIGNOR]
By_____________________________
Name:
Title:
[NAME OF ASSIGNEE]
----------------
/1/ This date should be no earlier than the date of acceptance by the Agent.
2
By_____________________________
Name:
Title:
Domestic Lending Office (and
address for notices):
[Address]
Eurodollar Lending Office:
[Address]
Consented to as of the
date first above written:
UNICOM ENTERPRISES INC.
By________________________________
Name:
Title:
Accepted this ____ day
of ____________, 19__
CITIBANK, N.A.
By________________________________
Name:
Title:
EXHIBIT D
FORM OF LC BANK AGREEMENT
LETTER OF CREDIT BANK AGREEMENT (the "AGREEMENT"), dated as of __________,
19___, between UNICOM ENTERPRISES INC., an Illinois corporation (the
"BORROWER"), and _____________________ (the "LC BANK").
PRELIMINARY STATEMENTS
(1) The Borrower has entered into a Credit Agreement, dated as of November
22, 1994 (said agreement, as amended, modified or supplemented from time to
time, being the "CREDIT AGREEMENT"), with certain lenders named therein and from
time to time parties thereto (the "LENDERS") and Citibank, N.A., as Agent.
Unless otherwise defined herein, capitalized terms used herein shall have the
meanings assigned to such terms in the Credit Agreement.
(2) Pursuant to Section 3.01 of the Credit Agreement, the Borrower may from
time to time identify and arrange for one or more Lenders to act as an LC Bank
thereunder and issue one or more Letters of Credit (as defined below) in an
aggregate stated amount not exceeding $100,000,000. The Borrower desires to
designate ________________ as an LC Bank under the Credit Agreement. Subject to
the terms and conditions hereof and of the Credit Agreement, ______________ has
agreed to act as an LC Bank and to issue an irrevocable letter of credit in
favor of ________________________ (the "BENEFICIARY") in the amount of
$__________ (the "LC COMMITMENT") for the account of the Borrower.
(3) [PURPOSE OF THE LETTER OF CREDIT TO BE ISSUED HEREUNDER.]
NOW, THEREFORE, in consideration of the premises and in order to induce the
LC Bank to issue the Letter of Credit, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
2
applicable to both the singular and plural forms of the terms defined):
"BENEFICIARY" has the meaning assigned to that term in Preliminary
Statement (2).
"ISSUANCE TERMINATION DATE" has the meaning assigned to that term in
Section 3.01 hereof.
"LC COMMITMENT" has the meaning assigned to that term in Preliminary
Statement (2).
"LETTER OF CREDIT" means the letter of credit issued by the LC Bank
pursuant to Section 3.02 hereof, as such letter of credit may from time to
time be amended, modified or extended in accordance with the terms of the
Credit Agreement and this Agreement, in form and substance satisfactory to
the LC Bank, the Borrower and the Agent.
"STATED TERMINATION DATE" means ___________________________; provided,
however, that the Stated Termination Date of the Letter of Credit upon its
date of issuance shall be no later than the latest then-scheduled
Termination Date; and provided further, however, that if the aggregate
amount of the Commitments on any scheduled Termination Date (after giving
effect to any scheduled reductions in the Commitments on such date) will be
less than the LC Commitment, the Stated Termination Date of the Letter of
Credit shall be no later than such Termination Date.
SECTION 1.02. COMPUTATION OF TIME PERIODS. Computation of a period of
time from a specified date to a later specified date shall be made in accordance
with the Credit Agreement.
SECTION 1.03. ACCOUNTING TERMS. All accounting terms not specifically
defined herein or in the Credit Agreement shall be construed in accordance with
generally accepted United States accounting principles as in effect as of the
date hereof consistently applied, except as otherwise stated herein.
ARTICLE II
THE CREDIT AGREEMENT
SECTION 2.01. CREDIT AGREEMENT. (a) The parties hereto acknowledge and
agree that this Agreement is an
3
"LC Bank Agreement" under the Credit Agreement, and that the parties hereto
shall be entitled to the rights and remedies, and bound by the obligations,
accorded to the parties in interest to an "LC Bank Agreement" as so provided in
the Credit Agreement. The parties hereto hereby further acknowledge and agree
that the Agent, the Lenders and the Beneficiary, as the case may be, are
intended third-party beneficiaries hereof and are entitled (acting through the
Agent, in the case of the Lenders) to the rights and benefits accorded
hereunder.
(b) The LC Bank hereby acknowledges and agrees that it is an "LC Bank"
under the Credit Agreement, that, by its execution and delivery hereof, it is
deemed a party to the Credit Agreement as if it were a signatory thereof in such
capacity and that it assumes all obligations, and acquires all rights and
remedies, of an "LC Bank" under the Credit Agreement.
(c) In the event of any conflict between the terms of this Agreement and
the Credit Agreement (unless such conflict arises solely as a result of an
amendment to the Credit Agreement made after the date hereof without the written
consent of the LC Bank thereto), the terms of the Credit Agreement shall control
and such conflicting terms hereunder shall be of no force or effect.
ARTICLE III
AMOUNT AND TERMS OF THE LETTER
OF CREDIT
SECTION 3.01. THE LETTER OF CREDIT. The LC Bank agrees, on the terms and
conditions hereinafter set forth, and subject, at all times, to Sections 3.01(b)
and 2.12(a) of the Credit Agreement, to issue the Letter of Credit to the
Beneficiary on any Business Day during the period from the date hereof to and
including ________________, 19__ (the "ISSUANCE TERMINATION DATE") in an amount
not to exceed the LC Commitment and expiring on or before the Stated Termination
Date.
SECTION 3.02. ISSUING THE LETTER OF CREDIT. The Letter of Credit shall be
issued (or the stated maturity thereof extended or terms thereof modified or
amended) on not less than three Business Days' prior written notice thereof to
the Agent and the LC Bank pursuant to, and in accordance with, Section 3.02 of
the Credit Agreement.
4
SECTION 3.03. FEES.
(a) The Borrower hereby agrees to pay to the LC Bank, upon the
issuance of the Letter of Credit hereunder, an issuance fee in an amount equal
to [___% of the initial stated amount thereof] [$________].
(b) The Borrower hereby agrees to pay to the LC Bank, upon each
drawing made by the Beneficiary under the Letter of Credit, a drawing fee in an
amount equal to $______.
(c) The Borrower hereby agrees to pay to the LC Bank, upon each
amendment to the Letter of Credit, an amendment fee in an amount equal to
$______.
[(d) The Borrower hereby agrees to pay to the LC Bank a fronting fee
equal to ___% of the average daily amount of the stated amount of the Letter of
Credit from the date of issuance of the Letter of Credit until the date of
expiry of the Letter of Credit, payable on the last day of each __________,
__________, __________ and __________ during such period and on such date of
expiry.]
SECTION 3.04. PAYMENTS AND COMPUTATIONS. The Borrower shall make
each payment hereunder not later than 12:00 noon (New York City time) on any day
when due in U.S. Dollars. Any such payment shall be made to the Agent for the
account of the LC Bank at the Agent's office set forth in Section 9.02 of the
Credit Agreement. The Borrower hereby authorizes the LC Bank, if and to the
extent payment is not made when due hereunder, to charge from time to time
against any or all of the Borrower's accounts with the LC Bank any amount so
due. Computations of the fees hereunder shall be made by the LC Bank on the
basis of a year of 360 days for the actual number of days (including the first
day but excluding the last day) elapsed.
SECTION 3.05. EXTENSION OF THE STATED TERMINATION DATE. At least 30
but not more than 60 days before the Stated Termination Date of the Letter of
Credit, the Borrower may request the LC Bank in writing (with a copy of each
such request to the Agent) to extend the Stated Termination Date of the Letter
of Credit for purposes of this Agreement and the Letter of Credit to any date
not later than the latest then-scheduled Termination Date (provided, however,
that if the aggregate amount of the Commitments on any scheduled Termination
Date (after giving effect to any scheduled reductions in the Commitments on such
date) will be less than the LC
5
Commitment, the extended Stated Termination Date of the Letter of Credit shall
be no later than such Termination Date). If the Borrower shall make such a
request, the LC Bank shall, on or before the 15th Business Day after its receipt
of such request, notify the Borrower in writing whether or not the LC Bank
consents to such request and, if the LC Bank does so consent, the conditions of
such consent (including conditions relating to legal documentation and the
consent of the Beneficiary thereof). If the LC Bank shall not so notify the
Borrower, the LC Bank shall be deemed not to have consented to such request.
Any such extension shall be effective only if and when made in accordance with
Articles III and IV of the Credit Agreement.
ARTICLE IV
CONDITIONS OF ISSUANCE
SECTION 4.01. CONDITIONS PRECEDENT TO ISSUANCE OF THE LETTER OF
CREDIT. The obligation of the LC Bank to issue the Letter of Credit is subject
to the satisfaction of the applicable conditions precedent set forth in Article
IV of the Credit Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The
Borrower hereby represents and warrants for the benefit of the LC Bank that the
representations and warranties of the Borrower set forth in Article V of the
Credit Agreement are true and correct on the date hereof, on each date of
issuance of the Letter of Credit and on each date on which the term thereof is
extended in accordance with Section 3.05 hereof, as if made on and as of such
date.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing,
signed by the LC Bank and the Borrower and consented to by the Agent on behalf
of the Majority Lenders, and then
6
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
SECTION 6.02. NOTICES, ETC. All notices and other communications
provided for hereunder shall be made in accordance with Section 9.02 of the
Credit Agreement and sent, if to the LC Bank, at its address set forth on the
signature page hereof.
SECTION 6.03. NO WAIVER; REMEDIES. No failure on the part of the
Borrower or LC Bank to exercise, and no delay in exercising, any right hereunder
or under the Credit Agreement shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder or thereunder preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein and therein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 6.04. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay
on demand all costs and expenses incurred by the LC Bank, including, without
limitation, the reasonable counsel fees and expenses of counsel to the LC Bank,
in connection with the preparation, execution, delivery and administration of
this Agreement and any other documents that may be delivered in connection with
this Agreement and any proposed modification, amendment or consent relating to
this Agreement, including, without limitation, fees and out-of-pocket expenses
of counsel for the LC Bank with respect thereto and with respect to advising the
LC Bank as to its rights and responsibilities under this Agreement. The
Borrower further agrees to pay on demand all costs and expenses, if any
(including, without limitation, counsel fees and expenses of outside counsel and
of internal counsel), incurred by the LC Bank in connection with (i) the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement and such other documents that may be delivered in connection with
this Agreement and (ii) any action or proceeding relating to a court order,
injunction, or other process or decree restraining or seeking to restrain the LC
Bank from paying any amount under the Letter of Credit. In addition, the
Borrower shall pay any and all stamp and other taxes and fees payable or
determined to be payable in connection with the execution and delivery of this
Agreement or the Letter of Credit or any such other documents, and agrees to
save the LC Bank harmless from and against any and all liabilities with respect
to or resulting from any delay in paying or omission to pay such taxes and fees.
7
SECTION 6.05. BINDING EFFECT. This Agreement shall become effective
when it shall have been executed by the Borrower and the LC Bank and consented
to in writing by the Agent (for itself as the Agent and on behalf of the
Lenders); and thereafter shall be binding upon and inure to the benefit of the
Borrower, the LC Bank, the Agent, the Lenders and their respective successors
and assigns, except that the Borrower shall not have the right to assign its
rights hereunder or any interest herein without the prior written consent of the
Lenders and the LC Bank shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders.
SECTION 6.06. SEVERABILITY. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
SECTION 6.07. WAIVER OF JURY TRIAL. EACH OF THE LC BANK AND THE
BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
LETTER OF CREDIT, OR ANY OTHER INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER OR
THEREUNDER.
SECTION 6.08. GOVERNING LAW; SUBMISSION TO JURISDICTION. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York. Each of the Borrower and the LC Bank (i) irrevocably
submits to the jurisdiction of any New York State court or Federal court sitting
in New York City in any action arising out of this Agreement or the Letter of
Credit, (ii) agrees that all claims in such action may be decided in such court,
(iii) waives, to the fullest extent it may effectively do so, the defense of an
inconvenient forum and any objections to venue and (iv) consents to the service
of process by mail. A final judgment in any such action shall be conclusive and
may be enforced in other jurisdictions. Nothing herein shall affect the right
of any party to serve legal process in any manner permitted by law or affect its
right to bring any action in any other court.
SECTION 6.09. HEADINGS. Section headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
8
SECTION 6.10. EXECUTION IN COUNTERPARTS. This Agreement may be
executed and consented to in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed or consented to
shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
UNICOM ENTERPRISES INC.
By__________________________________
Name:
Title:
[INSERT LC BANK], as LC Bank
By__________________________________
Name:
Title:
Consented to as of the date
first above written:
CITIBANK, N.A., as Agent on
behalf of the Lenders
By____________________________________
Name:
Title:
EXHIBIT E
FORM OF GUARANTY
GUARANTY, dated as of November ___, 1994, made by UNICOM CORPORATION, a
corporation organized and existing under the laws of the State of Illinois (the
"GUARANTOR"), in favor of the Lenders (the "LENDERS") and the LC Banks parties
to the Credit Agreement (as defined below) and Citibank, N.A., as agent (in such
capacity, the "AGENT") for the Lenders.
PRELIMINARY STATEMENTS
(1) The Lenders and the Agent have entered into a Credit Agreement, dated
as of the date hereof (said Agreement, as it may hereafter be amended or
otherwise modified from time to time, being the "CREDIT AGREEMENT", the terms
defined therein and not otherwise defined herein being used herein as therein
defined), with Unicom Enterprises Inc., a corporation organized and existing
under the laws of the State of Illinois (the "BORROWER"). The Guarantor will
derive substantial direct and indirect benefit from the transactions
contemplated by the Credit Agreement, the Notes and the other Loan Documents.
(2) The Borrower is a wholly-owned Subsidiary of the Guarantor.
(3) It is a condition precedent to the making of Advances by the Lenders
under the Credit Agreement and the issuance of Letters of Credit by the LC Banks
pursuant to the Credit Agreement that the Guarantor shall have executed and
delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders to make Advances and each LC Bank to issue Letters of Credit under
the Credit Agreement, the Guarantor hereby agrees as follows:
SECTION 1. CERTAIN DEFINED TERMS. As used in this Guaranty, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"CONSOLIDATED CAPITALIZATION" means, at any date of determination,
the sum of (i) common
2
equity of the Guarantor and its Consolidated Subsidiaries, (ii) preferred
and preference stock of the Guarantor and its Consolidated Subsidiaries
and (iii) Consolidated Debt of the Guarantor and its Consolidated
Subsidiaries.
"CONSOLIDATED DEBT" means, at any date of determination, the sum of
Debt of the Guarantor and its Consolidated Subsidiaries and Contingent
Obligations of the Guarantor and its Consolidated Subsidiaries.
"CONSOLIDATED SUBSIDIARY" means, as to any Person, any Subsidiary of
such Person whose accounts are or are required to be consolidated with the
accounts of such Person in accordance with GAAP.
"CONTINGENT OBLIGATION" means, as to any Person, the undrawn face
amount of any letters of credit issued for the account of such Person and
shall also mean any obligation of such Person guaranteeing or in effect
guaranteeing any Debt, leases, dividends, letters of credit, or other
obligations ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not
contingent, (a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or
supply funds (i) for the purchase or payment of any such primary
obligation or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (c) to purchase property, securities, or services
primarily for the purpose of assuring the obligee under any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation, or (d) otherwise to assure or hold harmless the
obligee under such primary obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable amount of the
primary obligation or, where such
3
Contingent Obligation is specifically limited to a portion of any such
primary obligation, that portion to which it is limited or, if not stated
or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith. For purposes of computing the
consolidated Debt of any Person, the amount of any primary obligation of
any Subsidiary of such Person and the amount of any Contingent Obligation
of such Person corresponding to such primary obligation shall only be
counted once (i.e., without duplication).
"TANGIBLE NET WORTH" means, at any time of determination, with
respect to any Person, the excess of such Person's total assets over its
total liabilities, with total assets and total liabilities each to be
determined in accordance with GAAP consistently applied, excluding,
however, from the determination of total assets (i) goodwill,
organizational expenses, research and development expenses, trademarks,
trade names, copyrights, patents, patent applications, licenses and rights
in any thereof, and other similar intangibles, (ii) all prepaid expenses,
deferred charges or unamortized debt discount and expense, (iii) all
reserves carried and not deducted from assets, (iv) securities that are
not readily marketable, (v) cash held in a sinking or other analogous fund
established for the purpose of redemption, retirement or prepayment of
capital stock or Debt, (vi) any write-up in the book value of any asset
resulting from a revaluation thereof subsequent to September 30, 1994, and
(vii) any items not included in clauses (i) through (vi), above, that are
treated as intangibles in conformity with GAAP.
SECTION 2. GUARANTY. The Guarantor hereby absolutely, unconditionally and
irrevocably guaranties the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of the Borrower now
or hereafter existing under the Credit Agreement, the Notes and any other Loan
Documents, whether for principal, reimbursement obligations, interest, fees,
expenses or otherwise (all such obligations being the "OBLIGATIONS"), and agrees
to pay any and all expenses (including counsel fees and expenses) incurred by
the Agent, the LC Banks or the
4
Lenders in enforcing any rights under this Guaranty. Without limiting the
generality of the foregoing, the Guarantor's liability shall extend to all
amounts that constitute part of the Obligations and would be owed by the
Borrower to the Agent, the LC Banks or the Lenders under the Credit Agreement,
the Notes and the other Loan Documents but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Borrower.
SECTION 3. GUARANTY ABSOLUTE. The Guarantor guarantees that the
Obligations will be paid strictly in accordance with the terms of the Credit
Agreement, the Notes and the other Loan Documents, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Agent, the LC Banks or the Lenders with
respect thereto. The obligations of the Guarantor under this Guaranty are
independent of the Obligations, and a separate action or actions may be brought
and prosecuted against the Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Borrower or whether the Borrower is
joined in any such action or actions. The liability of the Guarantor under this
Guaranty shall be absolute, unconditional and irrevocable irrespective of:
(i) any lack of validity or enforceability of the Credit Agreement,
the Notes, any other Loan Document, any Advance, or any other agreement or
instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or
waiver of, or any consent to departure from, the Credit Agreement or the
Notes, including, without limitation, any increase in the Obligations
resulting from the extension of additional credit to the Borrower or
otherwise and any extension of the Termination Date;
(iii) any manner of application of collateral, or proceeds thereof,
to all or any of the Obligations, or any manner of sale or other
disposition of, any release of or any failure to perfect any lien on or
security interest in any collateral for all or any of the Obligations or
any other assets of the Borrower or any of its
5
Subsidiaries, or any release or discharge of any Person liable for any or
all of the Obligations;
(iv) any change, restructuring or termination of the corporate
structure or existence of the Borrower or any of its Subsidiaries or any
bankruptcy, insolvency, liquidation or similar proceeding instituted by or
against the Borrower or any of its Subsidiaries; or
(v) any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Borrower or a guarantor.
As against the Guarantor, this Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Obligations is rescinded or must otherwise be returned by the Agent, any LC Bank
or any Lender upon the insolvency, bankruptcy or reorganization of the Borrower
or otherwise, all as though such payment had not been made.
SECTION 4. WAIVER. The Guarantor hereby waives promptness, diligence,
presentment, protest, notice of protest, notice of dishonor, notice of
acceptance and any other notice with respect to any of the Obligations and this
Guaranty and any requirement that the Agent, any LC Bank or any Lender protect,
secure, perfect or insure any security interest or lien on any property subject
thereto or exhaust any right or take any action against the Borrower or any
other person or entity or any collateral.
SECTION 5. WAIVER OF RIGHTS OF SUBROGATION. The Guarantor hereby
expressly and irrevocably waives with respect to the Borrower and its successors
and assigns and any other Person, any and all rights at law or in equity, by
agreement or otherwise, to subrogation, reimbursement, exoneration,
contribution, setoff, share in any collateral or any other rights that could
accrue to a surety against a principal, to a guarantor against a maker or
obligor, to an accommodation party against the party accommodated, or to a
holder or transferee against a maker, and that the Guarantor may have or
hereafter acquire against the Borrower, any of its Affiliates, or any other
Person in connection with or as a result of the Guarantor's execution, delivery
or performance hereunder. In furtherance of the foregoing, the Guarantor agrees
that any payment by the Guarantor to the Agent, the LC Banks or the Lenders
pursuant to this Guaranty shall be deemed a contribution to the capital of the
Borrower, and
6
no such payment shall constitute the Guarantor a creditor of the Borrower. The
Guarantor hereby acknowledges and agrees that the foregoing waivers are intended
to benefit the Borrower, the Agent, the LC Banks and the Lenders and shall not
limit or otherwise affect the Guarantor's liability hereunder or the
enforceability hereof. If, notwithstanding the foregoing, any amount shall be
paid to the Guarantor on account of such subrogation rights at any time when all
of the Obligations shall not have been paid in full, such amount shall be held
by the Guarantor in trust for the Agent, the LC Banks and the Lenders,
segregated from other funds of the Guarantor, and shall, forthwith upon receipt
by the Guarantor, be turned over to the Agent in the exact form received by the
Guarantor (duly endorsed by the Guarantor to the Agent), to be applied against
the Obligations, whether matured or unmatured, in such order as the Agent may
determine.
SECTION 6. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby
represents and warrants as follows:
(a) CORPORATE EXISTENCE AND POWER. It is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Illinois,
is duly qualified to do business as a foreign corporation in, and is in good
standing under the laws of, each state in which the ownership of its properties
or the conduct of its business makes such qualification necessary, except where
the failure to be so qualified would not have a material adverse effect on its
business, assets, revenues, financial condition, results of operations,
operations or prospects or its ability to perform its obligations under this
Guaranty, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to own or lease its property and
to carry on its business as now conducted.
(b) CORPORATE AUTHORIZATION. The execution, delivery and performance by it
of this Guaranty have been duly authorized by all necessary corporate action on
its part and do not, and will not, require the consent or approval of its
shareholders, or any trustee or holder of any Debt or other obligation of the
Guarantor.
(c) NO VIOLATION, ETC. The execution and delivery by the Guarantor of this
Guaranty, and the performance by the Guarantor of its obligations hereunder, (i)
are within the Guarantor's corporate powers, (ii) have been duly authorized by
all necessary corporate action and (iii) do not and will not (A)
7
violate any provision of the charter or by-laws of the Guarantor or of law, (B)
violate any legal restriction binding on or affecting the Guarantor, (C) result
in a breach of, or constitute a default under, any indenture or loan or credit
agreement or any other agreement, lease or instrument to which the Guarantor is
a party or by which it or its properties may be bound or affected, or (D) result
in or require the creation of any lien or security interest upon or with respect
to any of its properties.
(d) GOVERNMENTAL ACTIONS. No authorization or approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery and performance by the
Guarantor of this Guaranty.
(e) EXECUTION AND DELIVERY. This Guaranty has been duly executed and
delivered by the Guarantor, and is the legal, valid and binding obligation of
the Guarantor enforceable against it in accordance with its terms, subject,
however, to the application by a court of general principles of equity and to
the effect of any applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally.
(f) LITIGATION. There is no pending or threatened action or proceeding
(including, without limitation, any proceeding relating to, or arising out of,
any Environmental Laws) affecting it or any of its Subsidiaries before any
court, governmental agency or arbitrator, that may have a material adverse
effect on the business, assets, revenues, financial condition, results of
operations, operations or prospects of the Guarantor or the Guarantor and its
Subsidiaries, taken as a whole, or on the Guarantor's ability to perform its
obligations under this Guaranty, or that questions the validity or
enforceability of this Guaranty or any other Loan Document against the Guarantor
or the Borrower.
(g) FINANCIAL STATEMENTS; MATERIAL ADVERSE CHANGE. The consolidated
balance sheet of the Guarantor and its Consolidated Subsidiaries as at December
31, 1993, and the consolidated balance sheet of the Guarantor and its
Consolidated Subsidiaries as at September 30, 1994 and the related consolidated
statements of income, retained earnings and cash flows for the nine-month period
then ended, together with the report thereon of Arthur Andersen LLP included in
the Guarantor's Quarterly
8
Report on Form 10-Q for the quarterly period ended September 30, 1994, copies of
each of which have been furnished to each Lender, fairly present (subject, in
the case of such balance sheet and statements of income, retained earnings and
cash flows for the nine months ended September 30, 1994, to year-end
adjustments) the financial condition of the Guarantor and its Consolidated
Subsidiaries as at such dates and the results of operations of the Guarantor and
its Consolidated Subsidiaries for the periods ended on such dates, all in
accordance with GAAP consistently applied (except for such changes in accounting
methods described in such report of Arthur Andersen LLP). Since September 30,
1994, there has been no material adverse change in the business, assets,
revenues, financial condition, results of operations, operations or prospects of
the Guarantor and its Subsidiaries, taken as a whole, or the Borrower and its
Subsidiaries, taken as a whole (other than operating losses resulting from
start-up operations of Subsidiaries of the Borrower), or in the Guarantor's
ability to perform any of its obligations hereunder.
(h) ERISA. During the preceding twelve-consecutive-month period, no steps
have been taken to terminate any Pension Plan, and no contribution failure has
occurred with respect to any Pension Plan sufficient to give rise to a Lien
under Section 302(f) of ERISA. No condition exists or event or transaction has
occurred with respect to any Pension Plan which could result in the incurrence
by the Guarantor or any of its Subsidiaries of any material liability, fine, or
penalty. The Guarantor has no contingent liability with respect to any post-
retirement benefit under a Welfare Plan, other than liability for continuation
coverage described in Part 6 of Title I of ERISA.
(i) TAXES. The Guarantor and each of its Subsidiaries have filed all tax
returns (federal, state and local) required to be filed and paid all taxes shown
thereon to be due, including interest and penalties, or provided adequate
reserves for payment thereof other than such taxes that the Guarantor or such
Subsidiary is contesting in good faith by appropriate legal proceedings and in
respect of which the Guarantor or such Subsidiary, as the case may be, has
established adequate reserves in conformity with GAAP.
(j) VIOLATION OF LAW. Neither the Guarantor nor any of its Subsidiaries is
in violation of any law or governmental regulation or court decree or order
which
9
may result in a material adverse effect on the business, assets, revenues,
financial condition, results of operations, operations or prospects of the
Guarantor and its Subsidiaries, taken as a whole, or the Borrower and its
Subsidiaries, taken as a whole, or on the Guarantor's ability to perform any of
its obligations hereunder.
(k) INVESTMENT COMPANY. The Guarantor is not an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or an "investment advisor" within
the meaning of the Investment Advisers Act of 1940, as amended.
(l) HOLDING COMPANY. The Guarantor is a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended, but the
Guarantor and its Subsidiaries are exempt from the provisions of that Act,
except Section 9(a)(2) thereof, by virtue of an order issued by the Securities
and Exchange Commission on July 22, 1994. Such exemption is in full force and
effect and the Guarantor is not aware of any existing or proposed proceedings
contemplating the revocation or modification of such exemption.
(m) INFORMATION. All factual information heretofore or contemporaneously
furnished by or on behalf of the Guarantor in writing to the Agent or any Lender
for purposes of or in connection with this Guaranty or any transaction
contemplated hereby is, and all other such factual information hereafter
furnished by or on behalf of the Guarantor to the Agent, any LC Bank or any
Lender will be, true and accurate in every material respect on the date as of
which such information is dated or certified, and not incomplete by omitting to
state any material fact necessary to make such information not misleading.
(n) NO CONDITIONS PRECEDENT. There are no conditions precedent to the
effectiveness of this Guaranty that have not been satisfied or waived.
(o) RELIANCE. The Guarantor has, independently and without reliance upon
the Borrower and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Guaranty.
SECTION 7. AFFIRMATIVE COVENANTS. The Guarantor covenants and agrees
that, so long as any part of the
10
Obligations shall remain unpaid or any Lender shall have any Commitment, the
Guarantor will:
(a) REPORTING REQUIREMENTS. Furnish to each Lender:
(i) 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
Guarantor, a consolidated balance sheet of the Guarantor and its
Consolidated Subsidiaries as of the end of such quarter and consolidated
statements of income, retained earnings and cash flows of the Guarantor
and its Consolidated Subsidiaries for the period commencing at the end of
the previous fiscal year and ending with the end of such quarter, all in
reasonable detail and duly certified (subject to year-end audit
adjustments) by the chief financial officer or the Treasurer of the
Guarantor as having been prepared in accordance with GAAP consistently
applied, except for (A) the absence of notes thereto and (B) changes in
accounting principles required by GAAP;
(ii) as soon as available and in any event within 90 days after the
end of each fiscal year of the Guarantor and its Consolidated
Subsidiaries, a copy of the annual report for such year for the Guarantor
and its Consolidated Subsidiaries, containing a consolidated balance sheet
of the Guarantor and its Consolidated Subsidiaries as at the end of such
fiscal year and consolidated statements of income, retained earnings and
cash flows of the Guarantor and its Consolidated Subsidiaries for such
fiscal year, certified in a manner acceptable to the Agent by Arthur
Anderson & Co. or another nationally-recognized independent public
accounting firm selected by the Guarantor and acceptable to the Agent;
(iii) concurrently with the financial statements for each quarterly
accounting period and for each fiscal year of the Guarantor furnished
pursuant to paragraphs (i) and (ii), above, (A) a certificate of the chief
financial officer, any vice president responsible for financial or
accounting matters, or the treasurer of the Guarantor stating that (1) the
Guarantor
11
has performed and observed all of, and the Guarantor is not in default in
the performance or observance of any of, the terms, covenants, agreements
and conditions of this Guaranty or, if the Guarantor shall be in default,
specifying all such defaults and the nature thereof, of which the signer
of such certificate may have knowledge, and (2) the signer has obtained no
knowledge of any Unmatured Default or Event of Default except as specified
in such certificate, and (B) an analysis prepared and certified by the
chief financial officer, any vice president responsible for financial or
accounting matters, or the Treasurer of the Guarantor of the covenants
contained in Sections 7(i) and (j), containing all information necessary
for determining compliance by the Guarantor with such covenants;
(iv) as soon as available and in any event within 90 days after the
end of each fiscal year of the Guarantor and concurrently with the
financial statements furnished pursuant to paragraph (ii), above, a
written statement of the independent public accountants that certified
such financial statements stating that, in making the examination
necessary for their certification of such financial statements, they have
obtained no knowledge of any default by the Guarantor in the observance of
any of the covenants contained in Section 7(i) or (j) or, if such
accountants shall have obtained knowledge of any such default, specifying
all such defaults and the nature thereof, it being understood that they
shall not be liable directly or indirectly for any failure to obtain
knowledge of any default;
(v) as soon as possible and in any event within ten days after the
commencement of litigation against the Guarantor, the Borrower, or any of
their respective Subsidiaries that could reasonably be expected to have a
material adverse effect on the business, assets, revenues, financial
condition, results of operations, operations or prospects of the Guarantor
and its Subsidiaries, taken as a whole, or that questions the validity or
enforceability of any of the Loan Documents against the Guarantor or the
Borrower, notice of such litigation describing in reasonable detail the
facts and circumstances concerning such litigation and the Guarantor's,
the Borrower's or
12
such Subsidiary's, as the case may be, proposed actions in connection
therewith;
(vi) promptly after the sending or filing thereof, copies of all
reports which the Guarantor sends to any of its security holders, and
copies of all reports and registration statements (other than registration
statements relating to (A) the offering of debt or preferred/preference
stock equity securities and (B) employee benefit plans) which the
Guarantor or any of its Subsidiaries files with the Securities and
Exchange Commission or any national securities exchange;
(vii) promptly after the occurrence of the institution of any steps
by the Guarantor or any other Person to terminate any Pension Plan, or the
failure to make a required contribution to any Pension Plan if such
failure is sufficient to give rise to a Lien under Section 302(f) of
ERISA, or the taking of any action with respect to a Pension Plan which
could result in the requirement that the Guarantor or any of its
Subsidiaries furnish a bond or other security to the PBGC or such Pension
Plan, or the occurrence of any event with respect to any Pension Plan
which could result in the incurrence by the Guarantor or any of its
Subsidiaries of any material liability, fine, or penalty, or any material
increase in the contingent liability of the Guarantor or any of its
Subsidiaries with respect to any post-retirement Welfare Plan benefit,
notice of such event and the action the Guarantor proposes to take with
respect thereto;
(viii) as soon as possible and in any event within ten days after
the Guarantor knows or should have reason to know of the occurrence of
each Unmatured Default or Event of Default continuing on the date of such
statement, a statement of the chief financial officer, any vice president
responsible for financial or accounting matters, or the Treasurer of the
Guarantor setting forth details of such Unmatured Default or Event of
Default and the action that the Guarantor or the Borrower has taken and
proposes to take with respect thereto; and
13
(ix) such other information (other than proprietary customer
information) respecting the business, assets, revenues, financial
condition, results of operations, operations or prospects of the
Guarantor, the Borrower, or any of their respective Subsidiaries as the
Agent or any Lender may from time to time reasonably request.
(b) PRESERVATION OF CORPORATE EXISTENCE, ETC. Preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its legal existence in
the jurisdiction of its organization and qualify and remain qualified as a
foreign organization in each jurisdiction in which such qualification is
reasonably necessary in view of its business and operations or the ownership of
its properties, and preserve, renew and keep in full force and effect the
rights, privileges and franchises necessary or desirable in the normal conduct
of its business, except to the extent that the Guarantor's chief financial
officer certifies to the Lenders that the loss of any such right, privilege or
franchise, both individually and together with all other rights, privileges and
franchises lost since the Effective Date, would not have a Material Adverse
Effect.
(c) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply, in all material respects with all Applicable Laws, such
compliance to include compliance with ERISA and Environmental Laws.
(d) MAINTENANCE OF INSURANCE, ETC. Maintain, and cause each of its
Subsidiaries to maintain, such insurance as may be required by law and such
other insurance, to the extent and against such hazards and liabilities, as is
customarily maintained by companies similarly situated.
(e) INSPECTION RIGHTS. At any reasonable time and from time to time as
the Agent or any Lender may reasonably request, permit the Agent, each Lender or
any agents or representatives thereof to examine and make copies of and
abstracts from the records and books of account of, and visit the properties of,
the Guarantor and any of its Subsidiaries (except in the case of Commonwealth,
as may be restricted by law), and to discuss the affairs, finances and accounts
of the Guarantor and any of its Subsidiaries with any of their respective
officers or directors.
14
(f) MAINTAINING OF BOOKS. Maintain, and cause each of its Subsidiaries to
maintain, complete and accurate books of record and account in which entries
shall be made of all financial transactions and the assets and business of the
Guarantor and each of its Subsidiaries in accordance with GAAP.
(g) MAINTENANCE OF PROPERTIES. Cause all properties used or useful in the
conduct of the business of the Guarantor or any of its Subsidiaries to be
maintained and kept in reasonable condition, repair and working order, and cause
to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Guarantor may be necessary
so that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that neither the
Guarantor nor any such Subsidiary shall be prevented from discontinuing the
operation and maintenance of any such properties if the chief financial officer
of the Guarantor certifies that such discontinuance is desirable in the conduct
of the Guarantor's or such Subsidiary's business and such discontinuance,
individually or with all such other discontinuances since the date hereof, would
not have a material adverse effect on the business, assets, revenues, financial
condition, results of operations, operations or prospects of the Guarantor and
its Subsidiaries, taken as a whole.
(h) TAXES AND LIABILITIES. Pay, and cause each of its Subsidiaries to
pay, when due all taxes, assessments, governmental charges and other liabilities
imposed upon it or its property, except to the extent contested in good faith
and by appropriate proceedings and in respect of which adequate reserves for the
payment thereof have been set aside by the Guarantor or such Subsidiary, as the
case may be, in accordance with GAAP.
(i) MAINTENANCE OF MINIMUM TANGIBLE NET WORTH. Maintain at all times an
excess of (i) the Tangible Net Worth of the Guarantor and its Consolidated
Subsidiaries over (ii) the Tangible Net Worth of Commonwealth and its
Consolidated Subsidiaries, of at least $10,000,000.
(j) CONSOLIDATED LEVERAGE RATIO. Maintain, on the last day of each fiscal
quarter, a ratio of (i) Consolidated Debt to (ii) Consolidated Capitalization of
not greater than 0.65 to 1.
15
(k) ERISA. Maintain, and cause each of its Consolidated Subsidiaries to
maintain, each of its defined benefit plans in substantial compliance with all
applicable requirements of ERISA and of the Code and with all applicable rulings
and regulations issued under the provisions of ERISA and the Code.
(l) OWNERSHIP OF SUBSIDIARIES. Maintain direct ownership of 100% of the
capital stock of the Borrower and at least 80% of the voting capital stock of
Commonwealth.
SECTION 8. NEGATIVE COVENANTS. The Guarantor covenants and agrees that,
so long as any part of the Obligations shall remain unpaid or any Lender shall
have any Commitment, the Guarantor will not:
(a) LIENS, ETC. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any lien, security interest, or other
charge or encumbrance, or any other type of preferential arrangement, upon or
with respect to any of its properties (including, without limitation, the
capital stock of any of its Subsidiaries), whether now owned or hereafter
acquired, or assign, or permit any of its Subsidiaries to assign, any right to
receive income, in each case to secure or provide for the payment of any Debt of
any Person (any of the foregoing being referred to herein as a "LIEN"), other
than (i) Liens imposed by law, such as carriers', warehousemen's and mechanics'
Liens and other similar Liens arising in the ordinary course of business; (ii)
Liens arising under the Indenture; (iii) "permitted liens", as such term is
defined in the Indenture; and (iv) Liens permitted by Section 6.02(e)(ii) of the
Credit Agreement; provided, however, that, notwithstanding the foregoing, if
both before and after giving effect thereto no Unmatured Default or Event of
Default shall have occurred and be continuing, Commonwealth may sell, pledge or
otherwise dispose of its accounts receivable.
(b) MERGERS, ETC. Merge or consolidate with or into any Person, or
convey, transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions, and whether in a sale/leaseback transaction or
otherwise) more than 10% of its assets (whether now owned or hereafter
acquired), unless, in the case of a merger, immediately after giving effect
thereto, (i) no event shall occur and be continuing that constitutes an
Unmatured Default or an Event of Default, (ii) the
16
Guarantor is the surviving corporation, (iii) the Guarantor's Tangible Net Worth
shall be equal to or greater than its Tangible Net Worth immediately prior to
such merger and (iv) the Guarantor shall not be liable with respect to any Debt
or allow its property to be subject to any Lien which it could not become liable
with respect to or allow its property to become subject to under this Guaranty
on the date of such transaction.
(c) DEBT. Create, incur, assume or suffer to exist any Debt, other than
(i) Debt to the Borrower in an amount not to exceed $25,000,000 in the aggregate
at any one time outstanding, (ii) Debt hereunder, (iii) unsecured Contingent
Obligations (other than in respect of this Guaranty) in an aggregate amount at
any one time outstanding not to exceed the excess of (A) $300,000,000 over (B)
the amount of Contingent Obligations incurred by the Borrower and its
Subsidiaries pursuant to Section 6.02(b)(ii) of the Credit Agreement, and (iv)
other unsecured Debt; provided, however, that, notwithstanding the foregoing,
the aggregate amount of Debt of the Guarantor, the Borrower and Subsidiaries of
the Borrower at any one time outstanding shall not exceed $500,000,000.
(d) GUARANTOR AND SUBSIDIARIES' STOCK. Permit any of its Subsidiaries to
purchase or otherwise acquire any shares of capital stock of the Guarantor; or
take any action, or permit any such Subsidiary to take any action, that would
result in a material decrease in the percentage of the outstanding shares of
capital stock of any "Significant Subsidiary" of the Guarantor (within the
meaning of Rule 1-02 of the Regulation S-X of the Securities and Exchange
Commission) owned by the Guarantor and its other Subsidiaries; provided,
however, that the Guarantor or Commonwealth may take any such action with
respect to the capital stock of Commonwealth, provided that, after giving effect
to any such action, the Guarantor is in compliance with Section 7(l) hereof.
(e) OTHER AGREEMENTS. Enter into any agreement containing any provision
that would be violated or breached by the performance of its obligations
hereunder or under any instrument or document delivered or to be delivered by
the Guarantor hereunder or in connection herewith.
(f) TRANSACTIONS WITH AFFILIATES. Enter into, or permit any of its
Subsidiaries to enter into, any transaction with an Affiliate of the Guarantor,
unless
17
such transaction is on terms no less favorable to the Guarantor or such
Subsidiary, as the case may be, than if the transaction had been negotiated in
good faith on an arm's length basis with a Person that was not an Affiliate of
the Guarantor; provided, however, that the foregoing restrictions shall not
apply to any transaction between the Guarantor and any of its Subsidiaries,
between the Guarantor and Commonwealth, or between Commonwealth and any of the
Guarantor's other Subsidiaries.
(g) MAINTENANCE OF OWNERSHIP OF SUBSIDIARIES. Sell, assign, transfer,
pledge, hypothecate, or otherwise dispose of any shares of capital stock of any
of its Subsidiaries or any warrants, rights or options to acquire such capital
stock, or permit any of its Subsidiaries to issue, sell, or otherwise dispose of
any shares of its capital stock or the capital stock of any other of its
Subsidiaries or any warrants, rights, or options to acquire such capital stock,
except (and only to the extent) as may be necessary to give effect to a
transaction permitted by subsections (b) and (d), above, or subsections (e)(ii),
(f) or (g) of Section 6.02 of the Credit Agreement (including, without
limitation, any disposition pursuant to a foreclosure of any Lien permitted by
Section 6.02(e)(ii) of the Credit Agreement, provided that such disposition
would not have a Material Adverse Effect) and except that, subject to Section
6.02(f) of the Credit Agreement, any Subsidiary of the Guarantor may issue and
sell shares of its capital stock, and warrants, rights, or options to acquire
the same, to the Guarantor or such Subsidiary's parent corporation (if not the
Guarantor); provided, however, that Commonwealth may issue shares of its common
stock upon any exercise of its common stock purchase warrants and any conversion
of its $1.425 convertible preferred stock, in each case only with respect to
such warrants and shares of preferred stock outstanding on the date hereof.
(h) DISTRIBUTIONS. Upon the occurrence and during the continuance of an
Event of Default, declare or pay, directly or indirectly, any dividend, payment
or other distribution of assets, properties, cash, rights, obligations or
securities on account of any share of any class of capital stock of the
Guarantor, or purchase, redeem, retire, or otherwise acquire for value, or
permit any of its Subsidiaries to purchase, redeem, retire, or otherwise acquire
for value, any shares of any class of capital stock of the Guarantor or any
warrants, rights, or options to acquire any such shares, now or hereafter
18
outstanding, or make any distribution of assets to any of its shareholders;
provided, however, that, notwithstanding the foregoing, the Guarantor may, to
the extent that it is legally required to do so, pay any such dividend, payment
or other distribution after the Guarantor has declared such dividend, payment or
other distribution.
SECTION 9. AMENDMENTS, ETC. No amendment or waiver of any provision of
this Guaranty, and no consent to any departure by the Guarantor herefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Agent and the Majority Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given, provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all of the Lenders, (i) limit the liability of, or
release, the Guarantor hereunder, (ii) postpone any date fixed for payment
hereunder, or (iii) change the number of Lenders required to take any action
hereunder.
SECTION 10. ADDRESSES FOR NOTICES. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
cable communication) and mailed, telecopied, telegraphed, cabled or delivered to
it, (i) if to the Guarantor, at its address at P.O. Box A-3005, 10 South
Dearborn Street, 38th Floor, Chicago, Illinois 60690-3005, Attention: Treasurer,
Telecopy: (312) 394-4082, and (ii) if to the Agent, any LC Bank or any Lender,
at its address specified in the Credit Agreement or, as to any party, at such
other address as shall be designated by such party in a written notice to each
other party. All such notices and other communications shall, when mailed,
telecopied, telegraphed or cabled, be effective when deposited in the mails,
telecopied, delivered to the telegraph company or delivered to the cable
company, respectively.
SECTION 11. NO WAIVER; REMEDIES. No failure on the part of the Agent,
any LC Bank or any Lender to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law,
19
SECTION 12. RIGHT OF SET-OFF. Upon the occurrence and during the
continuance of any Event of Default, 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 of the Guarantor (general or
special, time or demand, provisional or final). Each Lender and LC Bank agrees
promptly to notify the Agent and the Guarantor after any such set-off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Lender and LC Bank under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that such
Lender or LC Bank may have.
SECTION 13. CONTINUING GUARANTY; ASSIGNMENTS UNDER CREDIT AGREEMENT.
This Guaranty is a continuing guaranty and shall (i) subject to the last
sentence of Section 3, remain in full force and effect until the later to occur
of (A) the payment in full of the Obligations and all other amounts payable
under this Guaranty and (B) the expiration or termination of the Commitments,
(ii) be binding upon the Guarantor, its successors and assigns (provided, that
the Guarantor may not assign any of its rights or obligations hereunder without
the prior written consent of the Lenders), and (iii) inure to the benefit of,
and be enforceable by, the Agent, the LC Banks, the Lenders and their respective
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (iii), any Lender may assign or otherwise transfer all or any
portion of its rights and obligations under the Credit Agreement (including,
without limitation, all or any portion of its Commitment, the Advances owing to
it and any Note held by it) to any other person or entity pursuant to Section
9.07 thereof, and such other person or entity shall thereupon become vested with
all the benefits in respect thereof granted to such Lender herein or otherwise,
subject, however, to the provisions of Article VIII (concerning the Agent) of
the Credit Agreement.
SECTION 14. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 15. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. (a) The
Guarantor hereby irrevocably (i) submits to the non-exclusive jurisdiction of
any New York State or Federal court sitting in New York City and
20
any appellate court from any thereof in any action or proceeding arising out of
or relating to this Guaranty or any other Loan Document and (ii) agrees that all
claims in respect of such action or proceeding may be heard and determined in
such New York State court or in such Federal court. The Guarantor hereby
irrevocably waives the defense of an inconvenient forum to the maintenance of
such action or proceeding and any objection to venue in connection therewith.
The Guarantor also irrevocably consents to the service of any and all process in
any such action or proceeding by the mailing by certified mail of copies of such
process to the Guarantor at its address specified in Section 10. The Guarantor
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.
(B) THE GUARANTOR HEREBY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY, ANY
OTHER LOAN DOCUMENT, OR ANY OTHER INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER OR
THEREUNDER.
SECTION 16. EXECUTION IN COUNTERPARTS. This Guaranty may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which counterparts when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement.
SECTION 17. SEVERABILITY. Any provision of this Guaranty or any other
Loan Document that is prohibited, unenforceable or invalid in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition, unenforceability or invalidity without invalidating the remaining
provisions hereof or thereof or affecting the validity, enforceability or
legality of such provision in any other jurisdiction.
SECTION 18. HEADINGS. Article and Section headings used herein are for
convenience of reference only, are not part of this Guaranty and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Guaranty.
SECTION 19. ENTIRE AGREEMENT. This Guaranty constitutes the entire
agreement and understanding among the Guarantor, the Lenders, the LC Banks and
the Agent relative to the subject matter hereof. Any previous
21
agreement by or among such parties with respect to the subject matter hereof is
superseded by this Guaranty. Nothing in this Guaranty, expressed or implied, is
intended to confer upon any party other than the Lenders, the LC Banks and the
Agent any rights, remedies, obligations, or liabilities under or by reason of
this Guaranty.
22
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
UNICOM CORPORATION
By___________________________
Name:
Title:
SIGNATURE PAGE TO THE GUARANTY
EXHIBIT F
FORM OF OPINION OF COUNSEL
FOR THE BORROWER AND THE PARENT
November 22, 1994
To each of the Lenders party to the Credit
Agreement hereinafter referred to and to
Citibank, N.A., as Agent
RE: UNICOM ENTERPRISES INC.
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 4.01(a)(x) of the
Credit Agreement, dated as of November 22, 1994 (the "CREDIT AGREEMENT"), among
Unicom Enterprises Inc., an Illinois corporation (the "BORROWER"), the Lenders
named therein and from time to time party thereto (the "LENDERS") and Citibank,
N.A., as Agent for said Lenders (the "AGENT"). Unless otherwise defined herein,
capitalized terms defined in the Credit Agreement are used herein as therein
defined.
We have acted as counsel to the Borrower and to Unicom Corporation, an
Illinois corporation (the "PARENT"; together with the Borrower, the "LOAN
PARTIES"), in connection with the preparation, execution and delivery of the
Credit Agreement and the other Loan Documents to be delivered thereunder.
In that capacity, we have examined:
(1) the Credit Agreement;
(2) the Notes executed and delivered on the date hereof;
(3) the Guaranty;
(4) the form of the LC Bank Agreement attached as Exhibit D to the
Credit Agreement;
To each of the Lenders party to the Credit
Agreement hereinafter referred to and to
Citibank, N.A., as Agent
November 22, 1994
Page 2
(5) the other documents furnished by the Borrower and the Parent
pursuant to Section 4.01 of the Credit Agreement;
(6) the Articles of Incorporation of the Borrower and all amendments
thereto (the "BORROWER CHARTER");
(7) the by-laws of the Borrower and all amendments thereto (the
"BORROWER BY-LAWS");
(8) a certificate of the Secretary of State of the State of Illinois,
dated November 18, 1994, attesting to the continued corporate existence
and good standing of the Borrower in that State;
(9) the Articles of Incorporation of the Parent and all amendments
thereto (the "PARENT CHARTER");
(10) the by-laws of the Parent and all amendments thereto (the
"PARENT BY-LAWS"); and
(11) a certificate of the Secretary of State of the State of
Illinois, dated November 18, 1994, attesting to the continued corporate
existence and good standing of the Parent in that State.
We are familiar with the corporate proceedings taken by the Borrower
and the Parent in connection with the foregoing agreements and documents and the
transactions contemplated thereby. We have relied, as to various questions of
fact material to the opinions expressed below, upon the representations made by
the Borrower in the Credit Agreement and by the Parent in the Guaranty and upon
certificates delivered by or on behalf of each of them on the date hereof. We
have also examined originals, or copies of originals certified to our
satisfaction, of such agreements, documents, certificates and other statements
of government officials and other instruments, have examined such questions of
law and have satisfied ourselves as to such matters of fact as we have
considered relevant and necessary as a basis for the opinions hereinafter
expressed. We have assumed the authenticity of all documents submitted to us
To each of the Lenders party to the Credit
Agreement hereinafter referred to and to
Citibank, N.A., as Agent
November 22, 1994
Page 3
as originals, the genuineness of all signatures, the legal capacity of all
natural persons and the conformity with the original documents of any copies
thereof submitted to us for our examination.
Based upon, and subject to, the foregoing, it is our opinion that:
1. Each of the Loan Parties is a corporation duly organized,
validly existing and in good standing under the laws of the State of Illinois.
Each of the Loan Parties has full corporate power and authority to own and to
hold under lease its property and to conduct its business substantially as
currently being conducted by it. The Borrower has full corporate power and
authority (a) to execute, deliver and perform its obligations under the Credit
Agreement and the Notes and (b) to obtain Extensions of Credit as contemplated
by the Credit Agreement. The Parent has full corporate power and authority to
execute, deliver and perform its obligations under the Guaranty.
2. The execution, delivery and performance by the Borrower of the
Credit Agreement, the Notes and the other Loan Documents to which it is, or is
to become, a party have been duly authorized by all necessary corporate action,
and do not and will not (A) breach, constitute a default under or otherwise
violate (i) the Borrower Charter or the Borrower By-laws, (ii) any law, rule or
regulation binding on the Borrower, (iii) to our knowledge, any order, decree,
writ or judgment to which the Borrower is a party or (iv) to our knowledge, any
indenture, any loan or credit agreement or any other agreement, lease or
instrument to which the Borrower is a party or by which it or its properties are
bound or (B) to our knowledge, result in or create any lien or security interest
on or in any of the Borrower's properties.
3. The execution, delivery and performance by the Parent of the
Guaranty have been duly authorized by all necessary corporate action, and do not
and will not (A) breach, constitute a default under or otherwise violate (i) the
Parent Charter or the Parent By-laws, (ii) any law, rule or regulation binding
on the Parent,
To each of the Lenders party to the Credit
Agreement hereinafter referred to and to
Citibank, N.A., as Agent
November 22, 1994
Page 4
(iii) to our knowledge, any order, decree, writ or judgment to which the Parent
is a party or (iv) to our knowledge, any indenture, any loan or credit agreement
or any other agreement, lease or instrument to which the Parent is a party or by
which it or its properties are bound or (B) to our knowledge, result in or
create any lien or security interest on or in any of the Parent's properties.
4. To our knowledge, neither the Parent nor any of its Subsidiaries
is in default in the payment of (or in the performance of any material
obligation applicable to) any Debt or Contingent Obligation exceeding
$5,000,000, in the case of the Parent, the Borrower or Northwind, or any Debt or
Contingent Obligation exceeding $20,000,000, in the case of Commonwealth Edison
Company or any of its Subsidiaries, or in violation of any court decree or order
which could reasonably be expected to result in a material adverse effect on the
business or financial condition of the Borrower.
5. The Credit Agreement and the Notes have been duly executed and
delivered by the Borrower. Each of the Credit Agreement and the Notes
constitutes, and each LC Bank Agreement, when duly completed, executed and
delivered by an authorized officer of the Borrower, will constitute, the legal,
valid and binding obligation of the Borrower, enforceable against the Borrower
in accordance with its respective terms, subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other similar laws of
general applicability relating to or affecting the enforceability of creditors'
rights generally, and except as the enforceability thereof may be limited by
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity).
6. The Guaranty has been duly executed and delivered by the Parent
and constitutes the legal, valid and binding obligation of the Parent,
enforceable against the Parent in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws of general
To each of the Lenders party to the Credit
Agreement hereinafter referred to and to
Citibank, N.A., as Agent
November 22, 1994
Page 5
applicability relating to or affecting the enforceability of creditors' rights
generally, and except as the enforceability thereof may be limited by general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity).
7. To our knowledge, except as disclosed in writing by the Parent or
the Borrower to the Lenders on or prior to the date hereof, there is no pending
or overtly threatened action or proceeding to which the Parent or any of its
Subsidiaries is a party before any court, governmental agency or arbitrator
which relates to the Credit Agreement, the Notes or the Guaranty which could
reasonably be expected to materially and adversely affect the Parent's
performance of its obligations under the Guaranty or the Borrower's performance
of its obligations under the Credit Agreement or the Notes.
8. No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is or will be
required to be made or obtained by the Parent or any of its Subsidiaries in
connection with the execution, delivery and performance by the Borrower or the
Parent of any Loan Document to which it is, or is to become, a party.
9. Neither the Borrower nor the Parent is an "investment company" or
a company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or an "investment advisor" within
the meaning of the Investment Advisors Act of 1940, as amended.
10. The Borrower is not a "public utility holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended (the
"ACT"). The Parent is a "public utility holding company" within the meaning of
the Act, but the Parent and its Subsidiaries are exempt from the provisions of
the Act, except Section 9(a)(2) thereof, by virtue of an order dated July 22,
1994 issued by the Securities and Exchange Commission. Such order is in full
force and effect and, to our knowledge, there are no pending or overtly
threatened
To each of the Lenders party to the Credit
Agreement hereinafter referred to and to
Citibank, N.A., as Agent
November 22, 1994
Page 6
proceedings contemplating the revocation or modification of such order.
In rendering the opinions set forth in paragraph 5 above with respect
to the Credit Agreement and any LC Bank Agreement, we have assumed, with your
approval: the due authorization, execution and delivery of such agreements on
behalf of all parties thereto other than the Borrower; the legality, validity,
binding effect and enforceability of such agreements with respect to all such
other parties, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other similar
laws of general applicability relating to or affecting the enforceability of
creditors' rights generally, and except as the enforceability thereof may be
limited by general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity); and such authorization,
execution and delivery and the performance of the Credit Agreement and any LC
Bank Agreement by the Agent and the Lenders will not violate any law, rule,
regulation, permit or court order applicable thereto or violate any agreement,
document or instrument binding upon the Agent or the Lenders.
We express no opinion as to (i) the enforceability of the last
sentence of Section 2.13(a) and the last sentence of Section 2.13(b) of the
Credit Agreement to the extent that such sentences state that non-manifest
errors contained in the certificates referred to therein are conclusive and
binding, (ii) the enforceability of the provisions contained in Section 9.10 of
the Credit Agreement, Section 15(a) of the Guaranty or Section 6.08 of the LC
Bank Agreement with respect to the submission to the jurisdiction of the United
States District Court for the Southern District of New York, (iii) the
enforceability of the provisions contained in Section 9.08 of the Credit
Agreement, Section 15(b) of the Guaranty or Section 6.07 of the LC Bank
Agreement with respect to the waiver of jury trial or (iv) Sections 3.05(i),
(iv) and (vi) of the Credit Agreement and Sections 3(i) and (v) of the Guaranty
to the extent that such provisions constitute a waiver of illegality as a
defense to performance of contractual obligations or any other defense which
cannot, as a
To each of the Lenders party to the Credit
Agreement hereinafter referred to and to
Citibank, N.A., as Agent
November 22, 1994
Page 7
matter of law, be effectively waived or a waiver of rights to seek protection
under the Federal Bankruptcy Code or other similar law.
Any opinion or statement herein which is expressed to be "to our
knowledge" or is otherwise qualified by words of like import means that the
lawyers in this firm who have had an involvement in negotiating the Loan
Documents and, in connection with the opinion set forth in paragraph 7 above,
such lawyers and the lawyers in this firm who currently supervise litigation and
regulatory matters handled by this Firm for Commonwealth Edison Company, have no
current conscious awareness of any facts or information contrary to such opinion
or statement. This opinion is limited to the federal laws of the United States
of America and the laws of the States of Illinois and New York.
This opinion is being delivered solely for the benefit of the persons
to whom it is addressed; accordingly, it may not be relied upon by any other
person or otherwise circulated or utilized for any purpose without our prior
written consent. It may not be quoted or filed with any governmental authority
or other regulatory agency (except to the extent required by law).
Very truly yours,
EXHIBIT G
FORM OF OPINION OF SPECIAL NEW YORK COUNSEL TO THE AGENT
[Date of Initial Extension of Credit]
To each of the Lenders parties to the
Credit Agreement referred to below,
and to Citibank, N.A., as Agent
Re: Unicom Enterprises Inc.
-----------------------
Ladies and Gentlemen:
We have acted as special New York counsel to Citibank, N.A., individually
and as Agent, in connection with the execution and delivery of the Credit
Agreement, dated as of November 22, 1994 (the "CREDIT AGREEMENT"), among Unicom
Enterprises Inc., the Banks parties thereto and the other Lenders from time to
time parties thereto, and Citibank, N.A., as Agent. Terms defined in the Credit
Agreement are used herein as therein defined.
In this connection, we have examined an executed counterpart of the Credit
Agreement, together with the other documents listed on Schedule A hereto.
In our examination of the documents referred to above, we have assumed the
authenticity of all such documents submitted to us as originals, the genuineness
of all signatures, the due authority of the parties executing such documents and
the conformity to the originals of all such documents submitted to us as copies.
We have further assumed that you have evaluated, and are satisfied with, the
creditworthiness of the Borrower and the Parent and the business and financial
terms evidenced by the Loan Documents. We have relied, as to factual matters,
on the documents we have examined.
Our opinions expressed below are limited to the law of the State of New
York and the Federal law of the United States, and we do not express any
opinions concerning any other law.
Based upon and subject to the foregoing and upon such investigation as we
have deemed necessary, and while we have not independently considered the
matters covered by the opinion listed on Schedule A hereto to the extent
necessary to enable us to express the conclusions stated therein, we are of the
opinion that (a) the Credit Agreement, the Notes and the Guaranty are in
substantially acceptable legal form, and (b) the opinion of counsel to the
Borrower and the Parent and the other documents listed on Schedule A hereto are
substantially responsive to the requirements of the corresponding subsections of
Section 4.01(a) of the Credit Agreement pursuant to which the same have been
delivered.
Very truly yours,
SCHEDULE A
List of Documents Examined
--------------------------
All documents are dated on or as
of November 22, 1994. Terms
defined in the Credit Agreement
are used herein as therein defined.
Unless otherwise indicated, all
section references are to those
contained in the Credit Agreement.
1. The Notes payable to the order of the Lenders, delivered pursuant to
Section 4.01(a)(i).
2. The Guaranty, delivered pursuant to Section 4.01(a)(ii).
3. Certificate of David A. Scholz, Secretary of the Borrower, as to (i) the
Articles of Incorporation of the Borrower, (ii) the By-laws of the
Borrower, (iii) the resolutions of the Board of Directors of the Borrower
and (iv) the name and true signature of the Treasurer of the Borrower,
delivered pursuant to Sections 4.01(a)(iii) and (v).
4. Certificate of David A. Scholz, Secretary of the Parent, as to (i) the
Articles of Incorporation of the Parent, (ii) the By-laws of the Parent,
(iii) the resolutions of the Board of Directors of the Parent and (iv) the
name and true signature of the Treasurer of the Parent, delivered pursuant
to Sections 4.01(a)(iv) and (vi).
5. Certificate of Good Standing for each of the Borrower and the Parent,
issued by the Secretary of State of the State of Illinois on November 18,
1994, delivered pursuant to Section 4.01(a)(vii).
6. Certificate of Dennis F. O'Brien, Treasurer of the Borrower, certifying
that the representations and warranties set forth in Section 5.01 are true
and correct and that no Event of Default and no Unmatured Default has
occurred and is continuing, delivered pursuant to Section 4.01(a)(viii).
7. Certificate of Dennis F. O'Brien, Treasurer of the Parent, certifying that
the representations and warranties set forth in Section 6 of the Guaranty
are true and correct, delivered pursuant to Section 4.01(a)(ix).
8. Opinion of Sidley & Austin, counsel for the Borrower and the Parent,
delivered pursuant to Section 4.01(a)(x).
EXHIBIT H
TERMS OF SUBORDINATION
[The following provisions are to be included
in each instrument or document evidencing
loans from the Parent to the Borrower pursuant
to Section 6.02(b)(iii) of the Credit Agreement]
1. Reference is made to the Credit Agreement, dated as of November 22,
1994 (such agreement, as it may hereafter be amended, modified or supplemented
from time to time, being the "Credit Agreement"; the terms defined therein and
not otherwise defined herein being used herein as therein defined), among Unicom
Enterprises Inc., the Lenders named therein and Citibank, N.A., as Agent for the
Lenders. The Parent hereby agrees for the benefit of the Agent and the Lenders
that all obligations of the Borrower to the Parent hereunder (the "Subordinated
Debt") are and shall be subordinate, to the extent and in the manner set forth
hereinafter, in right of payment to the prior payment in full of all obligations
of the Borrower under the Credit Agreement and the other Loan Documents, whether
for principal, interest (including interest, as provided in the Loan Documents,
after the filing of a petition initiating any proceeding referred to in
paragraph 3, below), fees, expenses or otherwise (all such obligations being the
"Senior Debt").
2. Upon the occurrence and during the continuance of an Event of Default
or an Unmatured Default, the Parent shall not ask, demand, sue for, take or
receive from the Borrower, directly or indirectly, in cash or other property or
by set-off or in any other manner (including, without limitation, from or by way
of collateral), payment of all or any of the Subordinated Debt.
3. Upon any distribution of all or any of the assets of the Borrower to
creditors of the Borrower upon the dissolution, winding up, liquidation,
arrangement, reorganization or composition of the Borrower, whether in any
bankruptcy, insolvency, arrangement, reorganization, receivership or similar
proceedings or upon an assignment for the benefit of creditors or any other
marshalling of the assets and liabilities of the Borrower or otherwise, any
payment or distribution of any kind (whether in cash, property or securities)
which otherwise would be payable or deliverable upon or with respect to the
Subordinated Debt shall be paid or delivered directly to the Agent for the
benefit of the Agent and the Lenders for application (in the case of cash) to or
as collateral (in the case of non-cash property or securities) for the payment
or prepayment
2
of the Senior Debt until the Senior Debt shall have been paid in full. For the
purposes of these provisions, the Senior Debt shall not be deemed to have been
paid in full until the Agent and the Lenders shall have indefeasibly received
payment in full of the Senior Debt in cash.
4. Until such time as the Senior Debt shall have been paid in full, if
any proceeding referred to in paragraph 3, above, is commenced by or against the
Borrower, the Agent is hereby irrevocably authorized and empowered (in its own
name, on behalf of the Lenders, in the name of the Parent, or otherwise), but
shall have no obligation, to demand, sue for, collect and receive every payment
or distribution referred to in paragraph 3, above, and give acquittance therefor
and to file claims and proofs of claim and take such other action (including,
without limitation, voting the Subordinated Debt or enforcing any Lien securing
payment of the Subordinated Debt) as it may deem necessary or advisable for the
exercise or enforcement of any of the rights or interests of the Lenders
hereunder.
5. All payments or distributions upon or with respect to the
Subordinated Debt which are received by the Parent contrary to the provisions
hereof shall be received in trust for the benefit of the Agent and the Lenders,
shall be segregated from other funds and property held by the Parent and shall
be forthwith paid over to the Agent for the benefit of the Agent and the Lenders
in the same form as so received (with any necessary endorsement) to be applied
(in the case of cash) to or held as collateral (in the case of non-cash property
or securities) for the payment or prepayment of the Senior Debt in accordance
with the terms of the Loan Documents.
6. The Agent is hereby authorized to demand specific performance of
these terms of subordination, whether or not the Borrower shall have complied
with any of the provisions hereof applicable to it, at any time when the Parent
shall have failed to comply with any of such provisions applicable to it. The
Parent hereby irrevocably waives any defense based on the adequacy of a remedy
at law which might be asserted as a bar to such remedy of specific performance.
7. So long as any of the Senior Debt shall remain unpaid, the Parent
shall not (i) commence, or join with any creditor other than the Agent and the
Lenders in commencing, any involuntary proceeding referred to in paragraph 3,
above, or (ii) declare any default in payment due hereunder or sue for breach of
the terms hereof, if and so long as payment hereunder would not be permissible
pursuant to paragraph 2 above.
3
8. No payment or distribution to the Agent and the Lenders pursuant to
the above provisions shall entitle the Parent to exercise any rights of
subrogation in respect thereof until the Senior Debt shall have been paid in
full.
9. The holders of the Senior Debt may, at any time and from time to
time, without any consent of or notice to the Parent or any other holder of the
Subordinated Debt and without impairing or releasing the obligations of the
Parent under these terms of subordination: (i) change the manner, place or
terms of payment or change or extend the time of payment of, or increase the
amount of, renew or alter, the Senior Debt (including any change in the interest
rate under which any of the Senior Debt is outstanding); (ii) sell, exchange,
release, not perfect and otherwise deal with any property at any time pledged,
assigned or mortgaged to secure the Senior Debt; (iii) release anyone liable in
any manner under or in respect of the Senior Debt; (iv) exercise or refrain from
exercising any rights against the Borrower and others; and (v) apply any sums
from time to time received to the Senior Debt.
10. The foregoing provisions regarding subordination are for the benefit
of the holders of the Senior Debt and shall be enforceable by them directly
against the holders of any Subordinated Debt, and no holder of the Senior Debt
shall be prejudiced in its right to enforce subordination of any of the
Subordinated Debt by any act or failure to act by the Borrower or anyone in
custody of its assets or property. No such provisions may be amended or
modified without the prior written consent of the Agent and the Lenders.