Exhibit 4.41
CREDIT AGREEMENT
dated as of November 14, 2001
among
TECO ENERGY, INC.,
a Florida Corporation
(Borrower)
CITIBANK, N.A.,
as Administrative Agent
SALOMON SMITH BARNEY INC. and BANC OF AMERICA SECURITIES, LLC,
as Co-Lead Arrangers
BANK OF AMERICA, N.A.,
as Syndication Agent
THE BANK OF NOVA SCOTIA, BNP PARIBAS and SUNTRUST BANK,
as Co-Documentation Agents
JPMORGAN CHASE BANK,
as LC Issuing Bank
and
THE FINANCIAL INSTITUTIONS PARTIES HERETO
(Lenders)
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS.......................................................1
1.1 Definitions............................................................1
1.2 Rules of Interpretation................................................1
ARTICLE II. THE CREDIT FACILITIES............................................1
2.1 Credit Facilities......................................................1
2.1.1 Revolving Credit Facilities........................................1
2.1.2 Term Loan Facility.................................................3
2.1.3 Interest Provisions Applicable to all Loans........................4
2.1.4 Conversion of Loans................................................5
2.1.5 Loan Principal Payment.............................................6
2.1.6 Promissory Notes...................................................6
2.1.7 Prepayments........................................................7
2.2 Letter of Credit Facility..............................................7
2.2.1 Issuance of the Letters of Credit..................................7
2.2.2 Availability.......................................................7
2.2.3 Notice of LC Activity..............................................7
2.2.4 Reimbursement......................................................8
2.2.5 Reimbursement Obligation Absolute..................................8
2.2.6 Reduction and Reinstatement of Stated Amount.......................9
2.2.7 Lender Participation..............................................10
2.2.8 Commercial Practices..............................................11
2.2.9 Term of Letters of Credit.........................................11
2.2.10 Liability of LC Issuing Bank....................................12
2.3 Total Commitments and Fees............................................12
2.3.1 Total Commitment..................................................12
2.3.2 Letter of Credit Commitment.......................................12
2.3.3 Reductions and Cancellations......................................12
2.3.4 Increases.........................................................13
2.4 Fees..................................................................14
2.4.1 Up Front Fees.....................................................14
2.4.2 Facility Fees.....................................................15
2.4.3 Letter of Credit Fees.............................................15
2.5 Other Payment Terms...................................................16
2.5.1 Place and Manner..................................................16
2.5.2 Date 17
2.5.3 Late Payments.....................................................17
2.5.4 Net of Taxes, Etc.................................................17
2.5.5 Application of Payments...........................................18
2.5.6 Failure to Pay Administrative Agent...............................19
2.5.7 Withholding Exemption Certificates................................19
2.6 Pro Rata Treatment....................................................20
2.6.1 Borrowings, Commitment Reductions, Etc............................20
2.6.2 Sharing of Payments, Etc..........................................20
2.7 Change of Circumstances...............................................21
2.7.1 Inability to Determine Rates......................................21
2.7.2 Illegality........................................................21
2.7.3 Increased Costs...................................................21
2.7.4 Capital Requirements..............................................22
2.7.5 Notice; Participating Lenders' Rights.............................22
2.8 Funding Losses........................................................23
2.9 Alternate Office, Minimization of Costs...............................23
2.9.1 Minimization of Costs.............................................23
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2.9.2 Replacement Rights................................................23
2.9.3 Alternate Office..................................................24
ARTICLE III. CONDITIONS PRECEDENT...........................................24
3.1 Conditions Precedent to the Closing Date..............................24
3.1.1 Credit Facility Documents.........................................24
3.1.2 Resolutions.......................................................24
3.1.3 Incumbency........................................................25
3.1.4 Legal Opinions....................................................25
3.1.5 Accuracy of Representations and Warranties........................25
3.1.6 Financial Statements..............................................25
3.1.7 No Defaults.......................................................25
3.1.8 Notice of Borrowing...............................................25
3.1.9 Certificate of Borrower...........................................25
3.1.10 Payment of Fees.................................................25
3.2 Conditions Precedent to Each Borrowing, Term-Conversion and LC
Activity........................................................25
3.2.1 Accuracy of Representations and Warranties........................26
3.2.2 No Defaults.......................................................26
3.2.3 No Material Adverse Effect........................................26
3.2.4 Notice of Borrowing; Term-Conversion or LC Activity...............26
ARTICLE IV. REPRESENTATIONS AND WARRANTIES..................................26
4.1 Corporate Existence and Business....................................26
4.2 Power and Authorization; Enforceable Obligations....................26
4.3 No Legal Bar........................................................27
4.4 No Proceeding or Litigation.........................................27
4.5 Governmental Approvals..............................................27
4.6 Financial Statements................................................27
4.7 True and Complete Disclosure........................................28
4.8 Investment Company Act..............................................28
4.9 Compliance with Law.................................................28
4.10 ERISA...............................................................28
ARTICLE V. COVENANTS OF BORROWER............................................28
5.1 Existence...........................................................28
5.2 Consents, Legal Compliance..........................................29
5.3 Prohibition of Certain Transfers....................................29
5.4 Payment and Performance of Material Obligations.....................30
5.5 Taxes...............................................................30
5.6 Maintenance of Property, Insurance..................................30
5.7 Compliance with Laws, Instruments, Etc..............................30
5.8 No Change in Business...............................................31
5.9 Financial Statements................................................31
5.10 Notices.............................................................32
5.11 Financial Covenants.................................................32
5.12 Indemnification.....................................................32
ARTICLE VI. EVENTS OF DEFAULT; REMEDIES.....................................35
6.1 Events of Default.....................................................35
6.1.1 Payments..........................................................35
6.1.2 Debt Cross Default................................................35
6.1.3 Bankruptcy; Insolvency............................................35
6.1.4 Misstatements; Omissions..........................................35
6.1.5 Breach of Terms of Agreement......................................35
6.1.6 Judgments.........................................................35
6.1.7 Change in Control.................................................36
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6.1.8 ERISA Violations..................................................36
6.1.9 Security..........................................................36
6.2 Remedies..............................................................36
6.2.1 No Further Loans..................................................37
6.2.2 Cure by Administrative Agent......................................37
6.2.3 Acceleration......................................................37
6.2.4 Cash Collateralization of Letters of Credit.......................37
ARTICLE VII. ADMINISTRATIVE AGENT, SUBSTITUTION, AMENDMENTS, ETC............38
7.1 Appointment, Powers and Immunities..................................38
7.2 Reliance............................................................39
7.3 Non-Reliance........................................................39
7.4 Defaults............................................................39
7.5 Indemnification.....................................................40
7.6 Successor Administrative Agent......................................40
7.7 Authorization.......................................................41
7.8 Administrative Agent's Other Roles..................................41
7.9 Amendments; Waivers.................................................42
7.10 Withholding Tax.....................................................43
7.11 General Provisions as to Payments...................................43
7.12 Substitution of Lender..............................................43
7.13 Participations......................................................44
7.14 Transfer of Commitments.............................................45
7.15 Laws................................................................45
7.16 Assignability as Collateral.........................................46
ARTICLE VIII. MISCELLANEOUS.................................................46
8.1 Addresses...........................................................46
8.2 Additional Security; Right to Set-Off...............................47
8.3 Delay and Waiver....................................................47
8.4 Costs, Expenses and Attorneys' Fees.................................48
8.5 Entire Agreement....................................................48
8.6 Governing Law.......................................................48
8.7 Severability........................................................48
8.8 Headings............................................................48
8.9 Accounting Terms....................................................48
8.10 No Partnership, Etc.................................................49
8.11 Limitation on Liability.............................................49
8.12 Waiver of Jury Trial................................................49
8.13 Consent to Jurisdiction.............................................49
8.14 Knowledge and Attribution...........................................50
8.15 Successors and Assigns..............................................50
8.16 Counterparts........................................................50
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INDEX OF SCHEDULES AND EXHIBITS
Schedule 1A Lenders, Lending Offices and Proportionate Shares under 364-Day
Facility
Schedule 1B Lenders, Lending Offices and Proportionate Shares under 3-Year
Facility
Schedule 5.3 Exceptions to Prohibition on Transfers
Exhibit A Definitions and Rules of Interpretation
Exhibit B Form of Note
Exhibit C-1 Form of Notice of Borrowing
Exhibit C-2 Form of Notice of Conversion of Loan Type
Exhibit C-3 Form of Confirmation of Interest Period Selection
Exhibit C-4 Form of Notice of Term-Conversion
Exhibit C-5 Form of Notice of LC Activity
Exhibit D Form of Borrower's Closing Certificate
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THIS CREDIT AGREEMENT (this "Agreement") dated as of November 14,
2001, is entered into among TECO Energy, Inc., a Florida corporation
("Borrower"), CITIBANK, N.A., as administrative agent for the Lenders
("Administrative Agent"), SALOMON SMITH BARNEY INC. and BANC OF AMERICA
SECURITIES, LLC, as co-lead arrangers, BANK OF AMERICA, N.A., as syndication
agent, THE BANK OF NOVA SCOTIA, BNP PARIBAS, and SUNTRUST BANK, as
co-documentation agents, JPMORGAN CHASE BANK, as LC Issuing Bank, and the
financial institutions listed on Schedules 1A or 1B or who later become a party
hereto (the "Lenders").
RECITALS
A. Borrower desires to obtain financing for commercial paper backstop and
for general corporate purposes and, in connection therewith, has requested that
the Lenders provide such financing to Borrower; and
B. The Lenders are willing to provide to Borrower (i) a $350,000,000 three
hundred sixty-four (364) day unsecured revolving credit facility with a one-year
term loan conversion option (the "364-Day Facility"), and (ii) a $350,000,000
three (3) year unsecured revolving credit facility, including a letter of credit
facility with a sub-limit of $250,000,000 (the "3-Year Facility"), each with an
option to increase the principal amount of such credit facility and otherwise
upon the terms and subject to the conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the agreements herein and in the other
Credit Facility Documents and in reliance upon the representations and
warranties set forth herein and therein, the parties agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions.
Except as otherwise expressly provided, capitalized terms used in
this Agreement and its exhibits shall have the meanings given in Exhibit A.
1.2 Rules of Interpretation.
Except as otherwise expressly provided, the Rules of Interpretation
set forth in Exhibit A shall apply to this Agreement and the other Credit
Facility Documents.
ARTICLE II.
THE CREDIT FACILITIES
2.1 Credit Facilities.
2.1.1 Revolving Credit Facilities.
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2.1.1.1 Availability. Subject to the terms and conditions set
forth in this Agreement, each Lender severally agrees to advance to Borrower,
under each Facility, from time to time prior to the Commitment Termination Date
applicable to such Facility, an advance (each, a "Revolving Loan"), in an
aggregate principal amount not to exceed such Lender's Commitment in respect of
such Facility. Subject to the provisions of this Agreement, each Revolving Loan
shall be funded by the Lenders as described in Section 2.1.1.3. Borrower may,
subject to the provisions of this Agreement, borrow, repay and reborrow under
the Facilities from time to time prior to the respective Commitment Termination
Date of the applicable Facility.
2.1.1.2 Notice of Borrowing. Borrower shall request Revolving
Loans under either Facility by delivering to Administrative Agent a written
notice in the form of Exhibit C-1, appropriately completed (a "Notice of
Borrowing") which specifies, among other things:
(a) The principal portion of the requested Borrowing
which will bear interest as provided in (A) Section 2.1.3.1(a) (individually, a
"Base Rate Revolving Loan") and (B) Section 2.1.3.1.(b) (individually, a "LIBOR
Revolving Loan");
(b) The amount of the requested Borrowing, which shall
be in the minimum amount of $10,000,000 or an integral multiple of $1,000,000 in
excess thereof (except in the case of a Revolving Loan of all remaining undrawn
amounts under a Facility);
(c) The date of the requested Borrowing, which shall be
a Banking Day;
(d) The account(s) to which the proceeds of the
Borrowing are to be deposited, as contemplated by Section 2.1.1.3(d); and
(e) The Facility under which such Revolving Loan is
requested.
Borrower shall deliver each such Notice of Borrowing so as to provide not less
than the Minimum Notice Period. Any Notice of Borrowing may be modified or
revoked by Borrower through the Banking Day prior to the applicable Minimum
Notice Period, and thereafter shall be irrevocable.
2.1.1.3 Revolving Loan Funding.
(a) Notice. The Notice of Borrowing shall be delivered
to Administrative Agent in accordance with Section 8.1. Administrative Agent
shall promptly notify each Lender of the contents of each Notice of Borrowing.
(b) Pro Rata Loans. Each Revolving Loan shall be made on
a pro rata basis by the Lenders in accordance with their respective
Proportionate Shares of the Facility under which such Revolving Loan is made,
with each Borrowing to consist of a Revolving Loan by each Lender equal to such
Lender's Proportionate Share of such Borrowing.
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(c) Lender Funding. Each Lender under each Facility
shall, before 12:00 noon in the case of LIBOR Revolving Loans and 2:00 p.m. in
the case of Base Rate Revolving Loans, in each case, on the date of each
Borrowing under such Facility, make available to Administrative Agent at its
office specified in Section 8.1, in same day funds, such Lender's Proportionate
Share of such Borrowing. The failure of any Lender to make the Revolving Loan to
be made by it as part of any Borrowing shall not relieve any other Lender of its
obligation hereunder to make its Revolving Loan on the date of such Borrowing.
No Lender shall be responsible for the failure of any other Lender to make the
Revolving Loan to be made by such other Lender on the date of any Borrowing.
(d) Funding of Revolving Loans. No later than 2:00 p.m.
in the case of LIBOR Revolving Loans and 3:00 p.m. in the case of Base Rate
Revolving Loans, in each case, on the date specified in each Notice of
Borrowing, if the applicable conditions precedent listed in Article III have
been satisfied or waived and to the extent Administrative Agent shall have
received the appropriate funds from the Lenders, Administrative Agent shall make
available the Revolving Loans requested in such Notice of Borrowing in Dollars
and in immediately available funds, at Administrative Agent's New York Branch,
and shall transfer such funds to the bank account(s) specified by Borrower in
the Notice of Borrowing delivered in respect of such Borrowing.
2.1.2 Term Loan Facility.
2.1.2.1 Availability. Subject to the terms and conditions set
forth in this Agreement, each Lender severally agrees to make to Borrower on the
Commitment Termination Date applicable to the 364-Day Facility, at the request
of Borrower, a term loan under this Section 2.1.2.1 (individually a "Term Loan"
and collectively the "Term Loans") in an aggregate principal amount not to
exceed the lesser of (i) the amount of then outstanding Revolving Loans made by
such Lender under the 364-Day Facility and (ii) such Lender's 364-Day Facility
Commitment. Each Lender shall make its Term Loans by converting its outstanding
364-Day Facility Revolving Loans to Term Loans on the Commitment Termination
Date applicable to the 364-Day Facility (collectively, the "Term-Conversion").
2.1.2.2 Notice of Term-Conversion. Subject to the satisfaction
of the conditions set forth in Section 3.2, Borrower may request the
Term-Conversion by delivering to Administrative Agent a written notice in the
form of Exhibit C-4, appropriately completed ("Notice of Term-Conversion"),
which specifies:
(a) The principal portion of the Term Loans which will
bear interest as provided in (A) Section 2.1.3.1(a) (individually, a "Base Rate
Term Loan") and/or (B) Section 2.1.3.1(b) (individually, a "LIBOR Term Loan");
(b) The aggregate amount of the Term Loans, which shall
not exceed the lesser of (A) the aggregate amount of Revolving Loans made under
the 364-Day Facility and outstanding on the Commitment Termination Date
applicable thereto and (B) the Total 364-Day Facility Commitment; and
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(c) If any Term Loans are to consist of LIBOR Loans, the
initial Interest Periods selected by Borrower for such Loans.
Borrower shall so deliver the Notice of Term-Conversion to Administrative
Agent so as to provide at least the Minimum Notice Period applicable to Loans of
the Type requested upon Term-Conversion. The Notice of Term-Conversion may be
modified or revoked by Borrower through the Banking Day prior to the Minimum
Notice Period, and thereafter shall be irrevocable.
2.1.3 Interest Provisions Applicable to all Loans.
2.1.3.1 Loan Interest Rates. Borrower shall pay interest on
the unpaid principal amount of each Loan from the date of such Loan until the
maturity or prepayment thereof at one of the following rates per annum:
(a) With respect to the principal portion of such Loan
which is, and during such periods as such Loan is, a Base Rate Loan, at a rate
per annum equal to the Base Rate (such rate to change from time to time as the
Base Rate shall change).
(b) With respect to the principal portion of such Loan
which is, and during such periods as such Loan is, a LIBOR Loan, at a rate per
annum during each Interest Period for such LIBOR Loan equal to the LIBOR Rate
for such Interest Period plus the Applicable Margin.
2.1.3.2 Interest Provisions. Unless otherwise specified by
Borrower in a Notice of Borrowing, Notice of Term-Conversion or Notice of
Conversion of Loan Type and except as otherwise provided for herein, all Loans
shall be Base Rate Loans. Subject to the applicable limitations set forth
herein, Loans shall bear interest based upon the LIBOR Rate as specified by
Borrower in the applicable Notice of Borrowing, Notice of Term-Conversion or
Notice of Conversion of Loan Type. Borrower shall not request, and the Lenders
shall not be obligated to make, LIBOR Loans at any time an Inchoate Default or
Event of Default exists. If an Event of Default exists at the end of an Interest
Period, the LIBOR Loans whose Interest Period is then ending shall automatically
convert to Base Rate Loans at such time.
2.1.3.3 Interest Payment Dates. Borrower shall pay accrued
interest on the unpaid principal amount of each Loan (i) in the case of each
Base Rate Loan, on the last Banking Day of each calendar quarter, (ii) in the
case of each LIBOR Loan, on the last day of each Interest Period related to each
LIBOR Loan and, with respect to Interest Periods longer than three months, the
last Banking Day of each calendar quarter, and (iii) in all cases, upon
prepayment (to the extent thereof and including any optional prepayments), upon
conversion from one Type of Loan to another Type and at maturity (whether by
acceleration or otherwise).
2.1.3.4 Interest Periods.
(a) Each Interest Period selected by Borrower for all
LIBOR Loans shall be one, two, three or six months or such other period as close
to six months as is practicable to enable Borrower to limit the number of LIBOR
Loans as required by this Section 2.1.3.4(a) or to comply with clause (C) of the
next sentence. Notwithstanding anything to the contrary in the previous
sentence, (A) any Interest Period which would otherwise end on a day
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which is not a Banking Day shall be extended to the next succeeding Banking Day
unless such next Banking Day falls in another calendar month, in which case such
Interest Period shall end on the immediately preceding Banking Day; (B) any
Interest Period which begins on the last Banking Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Banking Day of the
next calendar month; (C) any Interest Period for a Loan which would otherwise
end after the Maturity Date applicable to the Facility under which such Loan was
provided shall end on the Maturity Date applicable to such Facility; (D)
Borrower may not at any time have outstanding more than five different Interest
Periods under each Facility relating to LIBOR Loans; and (E) LIBOR Loans for
each Facility and each Interest Period shall be in the amount of at least
$1,000,000.
(b) Borrower may contact Administrative Agent at any
time prior to the end of an Interest Period for a quotation of interest rates in
effect at such time for given Interest Periods and Administrative Agent shall
promptly provide such quotation. Borrower may select an Interest Period
telephonically within the time periods specified in Section 2.1.1.2, which
selection shall be irrevocable on and after commencement of the applicable
Minimum Notice Period. Borrower shall confirm such telephonic notice to
Administrative Agent by telecopy on the day such notice is given (in
substantially the form of Exhibit C-3, a "Confirmation of Interest Period
Selection") and Administrative Agent shall promptly forward the same to the
Lenders. Borrower shall promptly deliver to Administrative Agent the original of
the Confirmation of Interest Period Selection initially delivered by telecopy.
If Borrower fails to notify Administrative Agent of the next Interest Period for
any LIBOR Loans in accordance with this Section 2.1.3.4(b), such Loans shall
automatically convert to Base Rate Loans on the last day of the current Interest
Period therefor. Administrative Agent shall as soon as practicable (and, in any
case, within two Banking Days after delivery of the Confirmation of Interest
Period Selection) notify Borrower of each determination of the interest rate
applicable to each Loan.
2.1.3.5 Interest Account and Interest Computations. Borrower
authorizes Administrative Agent to record in an account or accounts maintained
by Administrative Agent on its books (i) the interest rates applicable to all
Loans and the effective dates of all changes thereto, (ii) the Interest Period
for each LIBOR Loan, (iii) the date and amount of each principal and interest
payment on each Loan and (iv) such other information as Administrative Agent may
determine is necessary for the computation of interest payable by Borrower
hereunder. Borrower agrees that all computations by Administrative Agent of
interest shall be conclusive in the absence of demonstrable error. All
computations of interest on Base Rate Loans shall be based upon a year of 365 or
366 days and the actual days elapsed since the last interest payment date, and
shall be adjusted in accordance with any changes in the Base Rate to take effect
on the beginning of the day of such change in the Base Rate. All computations of
interest on LIBOR Loans shall be based upon a year of 360 days and the actual
days elapsed.
2.1.4 Conversion of Loans. Borrower may convert any Loan from one
Type of Loan to another Type; provided, however, that (i) any conversion of
LIBOR Loans into Base Rate Loans shall be made on, and only on, the first day
after the last day of an Interest Period for such LIBOR Loans, and (ii) Loans
within each Facility shall be converted only in amounts of $10,000,000 and
increments of $1,000,000 in excess thereof. Borrower shall request such a
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conversion by a written notice to Administrative Agent in the form of Exhibit
C-2, appropriately completed (a "Notice of Conversion of Loan Type"), which
specifies:
(a) The Loans, or portion thereof, which are to be
converted (including the Facility under which such Loans were provided);
(b) The Type into which such Loans, or portion thereof,
are to be converted;
(c) If such Loans are to be converted into LIBOR Loans,
the initial Interest Period selected by Borrower for such Loans in accordance
with Section 2.1.3.4(b); and
(d) The date of the requested conversion, which shall be
a Banking Day.
Borrower shall give each Notice of Conversion of Loan Type to Administrative
Agent so as to provide at least the applicable Minimum Notice Period. Any Notice
of Conversion of Loan Type may be modified or revoked by Borrower through the
Banking Day prior to the Minimum Notice Period, and shall thereafter be
irrevocable. Each Notice of Conversion of Loan Type shall be delivered by
first-class mail or telecopy to Administrative Agent at the office or to the
telecopy number and as otherwise specified in Section 8.1; provided, however,
that Borrower shall promptly deliver to Administrative Agent the original of any
Notice of Conversion of Loan Type initially delivered by telecopy.
Administrative Agent shall promptly notify each Lender under the applicable
Facility of the contents of each Notice of Conversion of Loan Type.
2.1.5 Loan Principal Payment. On the Maturity Date applicable to
each Facility, Borrower shall repay to Administrative Agent, for the account of
each Lender, the aggregate unpaid principal amount of the Loans made by such
Lender under such Facility, with any remaining unpaid principal, interest, fees
and costs due and payable on such date. From and after the Commitment
Termination Date of each Facility, upon payment in full of the aggregate
principal amount of the Loans under such Facility, all accrued and unpaid
interest thereon and all other amounts owed by Borrower to Administrative Agent
or the Lenders hereunder and under the other Credit Facility Documents in
respect of such Facility, the Lenders shall promptly mark any Notes in respect
of such Facility cancelled and return such cancelled Notes to Borrower.
2.1.6 Promissory Notes. The obligation of Borrower to repay the
Loans made by each Lender under each Facility and to pay interest thereon at the
rates provided herein shall, upon the written request of any Lender, be
evidenced by Notes in the form of Exhibit B (each, a "Note"), each payable to
the order of such Lender and in the principal amount of such Lender's Commitment
under such Facility. Borrower authorizes each Lender to record on the schedule
annexed to such Lender's Note or Notes, and/or in the Lenders internal records,
the date and amount of each Loan made by such Lender under the corresponding
Facility, and each payment or prepayment of principal thereunder and agrees that
all such notations shall constitute prima facie evidence of the matters noted.
Borrower further authorizes each Lender to attach to and make a part of such
Lender's Note or Notes continuations of the schedule attached thereto as
necessary. No failure to make any such notations, nor any errors in making any
such notations
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shall affect the validity of Borrower's obligation to repay the full unpaid
principal amount of the Loans or the duties of Borrower hereunder or thereunder.
2.1.7 Prepayments.
2.1.7.1 Terms of all Prepayments. Upon the prepayment of any
Loan, Borrower shall pay to Administrative Agent for the account of the Lender
which made such Loan (i) all accrued interest to the date of such prepayment on
the amount prepaid and (ii) if such prepayment is the prepayment of a LIBOR Loan
on a day other than the last day of an Interest Period for such LIBOR Loan, all
Liquidation Costs incurred by such Lender as a result of such prepayment
(pursuant to the terms of Section 2.7).
2.1.7.2 Optional Prepayments. Subject to Section 2.1.7.1,
Borrower may, at its option and without penalty, upon three Banking Days' notice
to Administrative Agent, prepay any Loans under either Facility in whole or in
part in an amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof (except in the case of a prepayment of all the Loans under such
Facility).
2.2 Letter of Credit Facility.
2.2.1 Issuance of the Letters of Credit. Subject to the terms and
conditions set forth in this Agreement and the Application, LC Issuing Bank
shall, during the LC Availability Period, on each Banking Day specified in a
Notice of LC Activity described in Section 2.2.3, issue Letters of Credit,
extend the expiry date of any Letter of Credit or increase the Stated Amount of
any Letter of Credit (as applicable), for the account of Borrower, of the
Letter(s) of Credit to which such Notice of LC Activity relates, and deliver
each such Letter of Credit (or a notice of extension of the expiry date thereof
or increase in the Stated Amount thereof) to the applicable LC Beneficiary.
Subject to Section 2.2.6(b), LC Issuing Bank shall not modify the conditions for
draws or terms of availability for any Letter of Credit issued and outstanding
hereunder without Borrower's consent. In the event of any inconsistency between
the terms and conditions of this Agreement and the terms and conditions of the
Application, the terms and conditions of this Agreement shall control.
2.2.2 Availability. LC Issuing Bank shall have no obligation to
issue any Letter of Credit, extend the expiry date of any Letter of Credit or
increase the Stated Amount of any Letter of Credit if, after giving effect to
such issuance, extension or increase, (a) the sum of the Aggregate LC Stated
Amount and the total unreimbursed Reimbursement Obligations would exceed the
Total Letter of Credit Commitment and (b) the expiry date of such Letter Credit
is later than the earlier of (x) the first anniversary of the issuance of such
Letter of Credit and (y) the date that is five Banking Days prior to the
scheduled Maturity Date of the 3-Year Facility, provided that any Letter of
Credit with a one-year term may provide for the renewal thereof for additional
one-year periods (which shall in no event extend beyond the date referred to in
clause (y) above) (such date is hereinafter referred to as the "LC Maturity
Date").
2.2.3 Notice of LC Activity. During the LC Availability Period,
Borrower may from time to time request the issuance of a Letter of Credit, the
extension of the expiry date of any Letter of Credit or the increase in the
Stated Amount of any Letter of Credit by delivering to
7
Administrative Agent and the LC Issuing Bank an irrevocable written notice in
the form of Exhibit C-5, appropriately completed (a "Notice of LC Activity"),
which specifies, among other things:
(a) The particulars of the Letter of Credit to be issued or
the specific Letter of Credit to be extended or the Stated Amount of which is to
be increased;
(b) The issue date and expiration date of the Letter of Credit
to be issued or extended (neither of which shall in any event be later than the
LC Maturity Date); and
(c) The Stated Amount of such Letter of Credit which, together
with the aggregate Stated Amount of all other outstanding Letters of Credit and
all outstanding Reimbursement Obligations thereunder, shall not exceed the Total
Letter of Credit Commitment.
Borrower shall give the Notice of LC Activity to Administrative Agent and LC
Issuing Bank at least five Banking Days before the requested date of issuance of
any Letter of Credit, and at least five Banking Days before the requested date
of extension, or increase in the Stated Amount, of any Letter of Credit. Any
Notice of LC Activity, once given by Borrower, may not be modified or revoked.
2.2.4 Reimbursement. LC Issuing Bank shall notify Borrower of any
Drawing Payment under any Letter of Credit within one Banking Day after the date
that such Drawing Payment is made (the date such Drawing Payment is made, the
"Drawing Date"); provided, however, that LC Issuing Bank's failure to provide
such notification shall not relieve Borrower of its Reimbursement Obligation. No
later than 11:00 a.m. on the fifth Banking Day after the Drawing Date, Borrower
shall make or cause to be made to LC Issuing Bank a payment in an amount (the
"Reimbursement Payment") equal to the sum of (a) the full amount of such Drawing
Payment and (b) interest thereon for each day or portion thereof until such
Drawing Payment is paid in full made at a rate equal to (i) from the Drawing
Date through the fifth Banking Day following the Drawing Date, the LIBOR Rate
for 1 day plus the Applicable Margin then applicable to LIBOR Loans and (ii)
thereafter, the Default Rate; provided, however, that such Reimbursement Payment
shall be for the benefit of each Lender (in proportion to its Proportionate
Share of the Total Letter of Credit Commitment) to the extent that, prior to the
time such Reimbursement Payment is made, such Lender has, pursuant to Section
2.2.7, paid LC Issuing Bank its respective Proportionate Share of the Drawing
Payment made by LC Issuing Bank. If a Reimbursement Payment is made in the full
amount of such Drawing Payment by 3:00 p.m. on the applicable Drawing Date, no
interest shall be payable on such Drawing Payment.
2.2.5 Reimbursement Obligation Absolute. The Reimbursement
Obligation of Borrower for each Drawing Payment shall be absolute, unconditional
and irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement under and without regard to any circumstances, including, (a) any
lack of validity or enforceability of any Letter of Credit, this Agreement or
any of the other Credit Facility Documents; (b) any amendment or waiver of or
any consent to departure from all or any terms of any of the Letters of Credit,
this Agreement or any of the other Credit Facility Documents; (c) the existence
of any claim, setoff, defense or other right which Borrower may have at any time
against any LC Beneficiary or any transferee
8
of any Letter of Credit (or any Persons for whom any such LC Beneficiary or
transferee may be acting), LC Issuing Bank, Administrative Agent, any Lender or
any other Person, whether in connection with any Letter of Credit, this
Agreement, the transactions contemplated herein or in the other Credit Facility
Documents, or in any unrelated transaction; (d) any breach of contract or
dispute among or between Borrower, LC Issuing Bank, Administrative Agent, any
Lender, or any other Person; (e) any demand, statement, certificate, draft or
other document presented under any 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; (f) payment by LC Issuing Bank under
any Letter of Credit against presentation of any demand, statement, certificate,
draft or other document which does not strictly comply with the terms of such
Letter of Credit; (g) any non-application or misapplication by an LC Beneficiary
of the proceeds of any Drawing Payment under a Letter of Credit or any other act
or omission of an LC Beneficiary in connection with a Letter of Credit; (h) any
extension of time for or delay, renewal or compromise of or other indulgence or
modification to the Drawing Payment granted or agreed to by LC Issuing Bank,
Administrative Agent or any Lender, with or without notice to or approval by
Borrower; (i) any failure to preserve or protect any collateral, any failure to
perfect or preserve the perfection of any lien thereon, or the release of any of
the collateral securing the performance or observance of the terms of this
Agreement or any of the other Credit Facility Documents; (j) the solvency or
financial responsibility of any party issuing any documents in connection with
the Letter of Credit; (k) any error in the transmission of any message relating
to a Letter of Credit not caused by the LC Issuing Bank, or any delay or
interruption in any such message; (l) any error, neglect or default of any
correspondent of the LC Issuing Bank in connection with a Letter of Credit; (m)
any consequence arising from acts of God, war, insurrection, civil unrest,
disturbances, labor disputes, emergency conditions or other causes beyond the
control of the LC Issuing Bank; (n) so long as the LC Issuing Bank in good faith
determines that the contract or document appears substantially to comply with
the terms of the Letter of Credit, the form, accuracy, genuineness or legal
effect of any contract or document referred to in any document submitted to the
LC Issuing Bank in connection with a Letter of Credit unless the LC Issuing
Bank's actions constituted gross negligence; or (o) any other circumstances or
happenings whatsoever relating to Borrower or such Reimbursement Obligation,
whether or not similar to any of the foregoing, including any commercial
frustration of purpose, any Regulatory Change, any failure of an LC Beneficiary
or any other Person to perform or observe any agreement, whether express or
implied, or any duty, liability or obligation arising out of or in connection
with the Credit Facility Documents to which each is a party; provided, however,
that nothing in this Section 2.2.5 shall relieve LC Issuing Bank, Administrative
Agent or any Lender from liability for its gross negligence or willful
misconduct.
2.2.6 Reduction and Reinstatement of Stated Amount.
(a) The Stated Amount of each Letter of Credit shall be
reduced by the amount of Drawing Payments made in respect thereof.
Notwithstanding anything to the contrary contained in this Section 2.2.6, once
so reduced, the Stated Amount of any Letter of Credit shall not be reinstated
except upon payment by Borrower of the Reimbursement Obligation corresponding to
such Drawing Payment and satisfaction of the conditions for an increase in the
Stated Amount of a Letter of Credit set forth in Section 3.2.
9
(b) Upon the occurrence and during the continuation of an
Event of Default under Section 6.1 or at such time as, pursuant to the terms
hereof, Administrative Agent and the Lenders have accelerated the Obligations
and upon the request of Administrative Agent (acting at the direction of the LC
Issuing Bank or Lenders holding Proportionate Shares in the 3-Year Facility in
excess of 50%), the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent for the benefit of the LC Issuing
Bank, an amount equal to the Aggregate LC Stated Amount. Such deposit shall be
held by the Administrative Agent as collateral for the payment and performance
of the obligations of the Borrower under this Agreement. The Administrative
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the option and
sole discretion of the Administrative Agent and at the Borrower's risk and
expense, such deposits shall not bear interest. Interest or profits, if any, on
such investments shall accumulate in such account. Moneys in such account shall
be applied by the Administrative Agent to reimburse the LC Issuing Bank for
Drawing Payments for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of any contingent Reimbursement
Obligations with respect to outstanding Letters of Credit. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid or to any other Obligations of the Borrower hereunder) shall be
returned to the Borrower within three Banking Days after all Events of Default
have been cured or waived and all amounts due and payable to Administrative
Agent and the Lenders hereunder have been paid. In addition, upon the occurrence
and during the continuation of an Event of Default under Section 6.1.3,
Administrative Agent (acting at the direction of the LC Issuing Bank or Lenders
holding Proportionate Shares in the 3-Year Facility in excess of 50%) shall be
entitled to cancel all outstanding Letters of Credit any time at least 30 days
after delivery to the LC Beneficiary of each Letter of Credit that will be
canceled a written notice of such intent to cancel, whereupon the LC Beneficiary
shall be entitled to draw upon the applicable Letter of Credit in accordance
with its terms.
2.2.7 Lender Participation. Each Lender severally agrees to
participate with LC Issuing Bank in the extension of credit arising from the
issuance of the Letters of Credit in an amount equal to such Lender's
Proportionate Share of the Stated Amount of each Letter of Credit, and the
issuance of a Letter of Credit shall be deemed a confirmation to LC Issuing Bank
of such participation in such amount. LC Issuing Bank may request the Lenders to
pay to LC Issuing Bank their respective Proportionate Shares of all or any
portion of any Drawing Payment made or to be made by LC Issuing Bank under any
Letter of Credit by contacting each Lender and Administrative Agent
telephonically (promptly confirmed in writing) within two (2) Banking Days after
LC Issuing Bank has received notice of or request for such Drawing Payment, and
specifying the amount of such Drawing Payment, such Lender's Proportionate Share
thereof, and the date on which such Drawing Payment is to be made or was made;
provided, however, that LC Issuing Bank shall not request the Lender to make any
payment under this Section 2.2.7 in connection with any portion of a Drawing
Payment for which LC Issuing Bank has been reimbursed through a Reimbursement
Payment by Borrower (unless such Reimbursement Payment has been thereafter
recovered by Borrower). Upon receipt of any such request for payment from LC
Issuing Bank, each Lender shall pay to LC Issuing Bank such Lender's
Proportionate Share of the unreimbursed portion of such Drawing Payment,
together with interest thereon at a per annum rate equal to the Federal Funds
Rate, as in effect from time
10
to time, from the date of such Drawing Payment to the date on which such Lender
makes payment. Each Lender's obligation to make each such payment to LC Issuing
Bank shall be absolute, unconditional and irrevocable and shall not be affected
by any circumstance whatsoever, including the occurrence or continuance of any
Inchoate Default or Event of Default, or the failure of any other Lender to make
any payment under this Section 2.2.7, and each Lender further agrees that each
such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. If any Reimbursement Payment is made to Administrative
Agent or LC Issuing Bank, Administrative Agent or LC Issuing Bank, as
applicable, shall pay to each Lender which has paid its Proportionate Share of
the Drawing Payment such Lender's Proportionate Share of the Reimbursement
Payment and shall, in the case of Administrative Agent, pay to LC Issuing Bank
and, in the case of LC Issuing Bank, retain, the balance of such Reimbursement
Payment.
2.2.8 Commercial Practices. Borrower assumes all risks of the acts
or omissions of any LC Beneficiary or transferee of any Letter of Credit with
respect to the use of such Letter of Credit. Borrower agrees that neither LC
Issuing Bank, Administrative Agent nor any Lender (nor any of their respective
directors, officers or employees) shall be liable or responsible for: (a) the
use which may be made of any Letter of Credit or for any acts or omissions of
any LC Beneficiary or transferee in connection therewith; (b) any reference
which may be made to this Agreement or to any Letter of Credit in any
agreements, instruments or other documents; (c) the validity, sufficiency or
genuineness of documents other than the Letters of Credit, or of any
endorsement(s) thereon, even if such documents should in fact prove to be in any
or all respects invalid, insufficient, fraudulent or forged or any statement
therein prove to be untrue or inaccurate in any respect whatsoever; (d) payment
by LC Issuing Bank against presentation of documents which do not strictly
comply with the terms of the applicable Letter of Credit, including failure of
any documents to bear any reference or adequate reference to such Letter of
Credit; or (e) any other circumstances whatsoever in making or failing to make
payment under any Letter of Credit, except only that LC Issuing Bank shall be
liable to Borrower for acts or events described in clauses (a) through (e)
above, to the extent, but only to the extent, of any direct damages, as opposed
to indirect, special or consequential damages, suffered by Borrower which
Borrower proves were caused by (i) LC Issuing Bank's willful misconduct or gross
negligence in determining whether a drawing made under the applicable Letter of
Credit complies with the terms and conditions therefor stated in such Letter of
Credit or (ii) LC Issuing Bank's willful failure to pay under any Letter of
Credit after a drawing by the respective LC Beneficiary strictly complying with
the terms and conditions of the applicable Letter of Credit. Without limiting
the foregoing, LC Issuing Bank may accept any document that appears on its face
to be in order, without responsibility for further investigation. Borrower
hereby waives any right to object to any payment made under a Letter of Credit
with regard to a drawing that is in the form provided in such Letter of Credit
but which varies with respect to punctuation (except punctuation with respect to
any Dollar amount specified therein), capitalization, spelling or similar
matters of form.
2.2.9 Term of Letters of Credit. Unless terminated earlier in
accordance with its terms, or extended pursuant to Section 2.2.3, each Letter of
Credit shall terminate on or prior to the close of business on the LC Maturity
Date.
11
2.2.10 Liability of LC Issuing Bank. The LC Issuing Bank shall be
entitled to the protection accorded to the Administrative Agent pursuant to
Section 7.1.2, with such conforming changes thereto as may be necessary to make
such provisions applicable to LC Issuing Bank.
2.3 Total Commitments and Fees.
2.3.1 Total Commitment. The aggregate principal amount of all Loans
made by the Lenders and outstanding at any one time shall not exceed (a) with
respect to the 364-Day Facility, $350,000,000 (the "Total 364-Day Facility
Commitment") and (b) with respect to the 3-Year Facility, $350,000,000 less the
Aggregate LC Stated Amount and all Reimbursement Obligations from time to time
outstanding (the "Total 3-Year Facility Commitment"), subject in each case to
(i) reductions by Borrower to a lower amount pursuant to Section 2.3.3 and (ii)
increases by Borrower to a higher amount pursuant to Section 2.3.4 (the Total
364-Day Facility Commitment, as so reduced or increased from time to time, and
the Total 3-Year Facility Commitment, as so reduced or increased from time to
time, to be referred to collectively herein as the "Total Commitment").
2.3.2 Letter of Credit Commitment. The Aggregate LC Stated Amount
from time to time outstanding shall not exceed $250,000,000, or if such amount
is reduced by Borrower pursuant to Section 2.3.3, such lower amount (such
amount, as so reduced from time to time, the "Total Letter of Credit
Commitment"); provided, however, that the Aggregate LC Stated Amount from time
to time outstanding plus the aggregate amount of Reimbursement Obligations
outstanding at such time plus the aggregate principal amount of all Loans
outstanding at such time under the 3-Year Facility shall not exceed $350,000,000
as reduced under Section 2.3.3 or increased under Section 2.3.4.
2.3.3 Reductions and Cancellations. Borrower may, from time to time
upon three Banking Days' written notice to Administrative Agent (who shall
promptly deliver such notice to the Lenders), permanently reduce, by an amount
of $10,000,000 or an integral multiple of $1,000,000 in excess thereof or cancel
in its entirety, the Total Commitment applicable to either Facility. Any
reduction of the Total 3-Year Facility Commitment shall not affect the Total
Letter of Credit Commitment until and unless the sum of the Total 3-Year
Facility Commitment plus the Aggregate LC Stated Amount and all Reimbursement
Obligations then outstanding is reduced below $250,000,000, at which time the
Total Letter of Credit Commitment shall be reduced, dollar for dollar, with any
reduction to the Total 3-Year Facility Commitment. Notwithstanding anything in
this Section 2.3.3 to the contrary, Borrower may not reduce or cancel any
portion of the Total Commitment under either Facility if, after giving effect to
such reduction or cancellation, (a) the aggregate principal amount of all Loans
then outstanding under such Facility would exceed the Total Commitment
applicable to such Facility, (b) the Aggregate LC Stated Amount plus all
Reimbursement Obligations would exceed the Total Letter of Credit Commitment, or
(c) such reduction or cancellation would cause a violation of any provision of
this Agreement or the other Credit Facility Documents. Borrower shall pay to
Administrative Agent any Facility Fees or Letter of Credit Fees then due on such
cancelled amount upon any such reduction or cancellation. From the effective
date of any such reduction, the Facility Fees and Letter of Credit Fees
applicable to the affected Facility shall be computed on the basis of the Total
Commitment of such Facility as so reduced. Once reduced or cancelled, the Total
Commitment of the affected Facility may not be increased or reinstated except as
provided in
12
Section 2.3.4 below. Any reductions pursuant to this Section 2.3.3 shall be
applied ratably to each Lender's respective Commitments in respect of the
affected Facility in accordance with Section 2.6.1.
2.3.4 Increases.
2.3.4.1 Borrower may, no more than once during the term of the
364-Day Facility and no more than once during the term of the 3-Year Facility,
request Administrative Agent to request that the Lenders under such Facility
agree to an increase of the Total Commitment under such Facility by an amount
not to exceed $87,500,000 upon the terms and conditions of this Section 2.3.4.
Borrower's request shall specify (i) the amount of the requested increase, which
shall be in minimum increments of $10,000,000 (unless the maximum amount
specified above is requested) and (ii) the Facility to which such request
applies. Any such request shall be submitted no later than 60 days prior to the
Commitment Termination Date of the applicable Facility.
2.3.4.2 Upon receipt of any such request from Borrower,
Administrative Agent shall promptly notify each Lender under the affected
Facility of such request. Each such Lender shall have the right to increase its
Commitment under the affected facility by its pro rata share of the requested
increase (based on such Lender's Proportionate Share of the Total Commitment
applicable to such Facility prior to giving effect to any increase under this
Section). Each Lender shall notify Administrative Agent not later than 15 days
after receiving notice of the increase request whether it agrees to increase its
Commitment (or any portion thereof) under the affected Facility, which decision
shall be made by each Lender in its sole and absolute discretion. Each such
notice from a Lender which agrees to increase such Commitment (each, an
"Electing Lender") shall specify the amount by which such Lender is willing to
increase its Commitment under the affected Facility, which amount may exceed
such Lender's pro rata share of the requested increase (based on such Lender's
Proportionate Share of the Total Commitment applicable to such Facility prior to
giving effect to the proposed increase) (any such excess being hereinafter
referred to as an "Additional Commitment"). To the extent any Lender does not
agree to increase its Commitment under the affected Facility by the full amount
of such Lender's pro rata share of the requested increase, such shortfall is
hereinafter referred to as a "Declined Commitment Increase" and collectively,
the "Declined Commitment Increases." Any Lender which fails to deliver such
notice to Administrative Agent within the time period specified above shall be
deemed to have declined to increase its Commitment. After receipt of such
notices, Administrative Agent shall allocate the Declined Commitment Increases
(if any) among each Electing Lender who agreed to provide an Additional
Commitment pro rata according to the respective amounts of their Additional
Commitments for the affected Facility (provided that in no event shall any such
Electing Lender be allocated an amount in excess of its Additional Commitment).
On the first Business Day after the 30th day following the notice issued by
Administrative Agent to the Lenders of the increase request, Administrative
Agent shall advise Borrower in writing, with a copy to each of the Lenders of
the affirmative responses which it has received from the Electing Lenders and
the respective amounts of the Commitments of each Electing Lender.
2.3.4.3 Notwithstanding the foregoing, if the aggregate amount
of the Additional Commitments is less than 100% of the aggregate of the Declined
Commitments,
13
Borrower may offer the excess Declined Commitments to other financial
institutions; provided that (i) such financial institutions are reasonably
acceptable to Administrative Agent, and (ii) the minimum Commitment of each such
institution equals or exceeds $5,000,000.
2.3.4.4 Notwithstanding any other provision of this Agreement
or the other Credit Facility Documents, Borrower shall have the right to request
a Commitment increase only if (i) at the time of, and after giving effect to any
such requested increase, Borrower's long-term unsecured non-credit-enhanced debt
ratings from Moody's and S&P are, and will be, better or equal to Baa2 and BBB-,
respectively, or Baa3 and BBB, respectively; (ii) each representation and
warranty set forth in Article IV of this Agreement shall be true and correct in
all material respects as if made on and as of the date of the Commitment
increase request and after giving effect to the Commitment increase, as though
such representations and warranties were made on such date, unless such
representation or warranty relates solely to another time; (iii) at the time of,
and after giving effect to any such requested increase, no event or circumstance
shall have occurred and is continuing which is reasonably likely to have a
Material Adverse Effect on Borrower or will result from such Commitment
Increase; and (iv) no Event of Default or Inchoate Default has occurred or is
continuing, or would result from such Commitment increase.
2.3.4.5 Any Commitment increase made pursuant to this Section
shall become effective at such time as both of the following have occurred: (i)
either (A) Administrative Agent has advised Borrower that 100% of the requested
Commitment increase has been subscribed to by Lenders and/or other financial
institutions in accordance with Sections 2.3.4.2 and 2.3.4.3 above or (B)
Administrative Agent has advised Borrower that less than 100% of the requested
Commitment increase has been subscribed to in accordance with such Sections and
Borrower notifies Administrative Agent that it desires to increase the
Commitment by the amount that has been subscribed to and (ii) Borrower has
certified to Administrative Agent on behalf of the Lenders that the conditions
precedent to such Commitment increase set forth in Section 2.3.4.4 above are
satisfied. Concurrently with any Commitment increase under either Facility
becoming effective, (x) any financial institution that subscribed to the
Commitment increase in accordance with Section 2.3.4.3 above shall execute a
counterpart of this Credit Agreement and shall become a "Lender" hereunder; (y)
any Lender that subscribed to the Commitment increase in accordance with Section
2.3.4.2 or a financial institution that subscribed to the Commitment increase in
accordance with Section 2.3.4.3 (each a "Subscribing Lender") shall purchase a
portion of the outstanding Loans under such Facility from the other Lenders in
an amount such that each Lender's (including the Subscribing Lender's)
Proportionate Share of the outstanding Loans under such Facility shall equal
such Lender's Proportionate Share of the Total Commitment applicable to such
Facility, after giving effect to the Commitment increase; and (z) Schedule 1A or
1B, as the case may be, to this Agreement shall be revised to reflect the
Proportionate Shares of the Lenders after giving effect to such Commitment
increase.
2.4 Fees
2.4.1 Up Front Fees. On the Closing Date, Borrower shall pay to
Administrative Agent, for the benefit of the Lenders, the up-front fee (the
"Up-Front Fee") described in the Fee Letter (but only to the extent such
Up-Front Fees are payable as of the Closing Date pursuant to the Fee Letter).
14
2.4.2 Facility Fees. On the last Banking Day in each calendar
quarter (where all or any portion of such calendar quarter occurs on or after
the Closing Date and prior to the Maturity Date of either Facility) and on the
Maturity Date of each Facility (or, if the Total Commitment under either
Facility is cancelled prior to such date, on the date of such cancellation),
Borrower shall pay to Administrative Agent, with respect to each Facility and
for the benefit of the Lenders thereunder, accruing from the Closing Date or the
first day of such quarter, as the case may be, a facility fee (collectively, the
"Facility Fees") for such quarter (or portion thereof) then ending equal to the
sum of the products obtained by multiplying, (i) each applicable percentage set
forth below for such Facility based on Borrower's senior unsecured long term
debt rating(s) during the period of determination times (ii) the daily average
Total Commitment under such Facility, in each case irrespective of usage (or, in
the case of the 364-Day Facility after Term-Conversion, the daily average
outstanding amount of the Term Loans), plus in the case of the 3-Year Facility,
the daily average outstanding Stated Amount of Letters of Credit and
Reimbursement Obligations for such quarter (or portion thereof) times (iii) a
fraction, the numerator of which is the number of days in such quarter (or
portion thereof) on which such applicable percentage applies to Borrower and the
denominator of which is the number of days in that calendar year (365 or 366, as
the case may be).
=======================================================================================
LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 5
Long Term Long Term Long Term Long Term Long Term
Senior Senior Senior Senior Senior
Unsecured Unsecured Unsecured Unsecured Non Unsecured
Non Credit Non Credit Non Credit Credit Non Credit
Enhanced Enhanced Enhanced Enhanced Debt Enhanced
Debt of the Debt of the Debt of the of the Debt of the
Borrower Borrower Borrower Borrower Borrower
Rated At Rated Less Rated Less Rated Less Rated Less
Least A By Than Level Than Level 2 Than Level 3 Than Level 4
S & P Or A2 1 But At But At But At Least
By Moody's. Least A- Least BBB+ BBB By S & P
By S & P By S & P Or Or Baa2 By
Or A3 By Baa1 By Moody's.
Moody's. Moody's.
=======================================================================================
Facility .09% .105% .125% .15% .20%
Fee for
364-Day
Facility
- ---------------------------------------------------------------------------------------
Facility .12% .13% .15% .20% .25%
Fee for
3-Year
Facility
- ---------------------------------------------------------------------------------------
2.4.3 Letter of Credit Fees.
2.4.3.1 On the last Banking Day in each calendar quarter
(where all or any portion of such calendar quarter occurs on or after the
Closing Date and prior to the Maturity Date of the 3-Year Facility) commencing
on the Closing Date and ending on the Maturity Date and on the Expiration Date
of each Letter of Credit, Borrower shall pay to Administrative Agent for the
benefit of the LC Issuing Bank, accruing from the date of issuance of such
Letter of
15
Credit, a Letter of Credit fee (the "LC Bank Letter of Credit Fee") for such
quarter (or portion thereof) then ending in an amount as agreed between the
Borrower and the LC Issuing Bank.
2.4.3.2 Borrower agrees to pay LC Issuing Bank's usual and
customary charges for the opening of any Letter of Credit, for the negotiation
of any drafts paid pursuant to any Letter of Credit and for any wire transfers.
2.4.3.3 On the last Banking Day in each calendar quarter
(where all or any portion of such calendar quarter occurs on or after the
Closing Date and prior to the Maturity Date of the 3-Year Facility) commencing
on the Closing Date and ending on the Maturity Date and on the Maturity Date,
Borrower shall pay to Administrative Agent for the benefit of the Lenders under
the 3-Year Facility a Letter of Credit fee (the "Lenders Letter of Credit Fee"
and together with the LC Bank Letter of Credit Fee, the "Letter of Credit Fees")
for such quarter (or portion thereof) then ending equal to the sum of the
products obtained by multiplying, (i) each applicable percentage set forth below
based on Borrower's senior unsecured long term debt rating(s) during the period
of determination times (ii) the daily average Aggregate LC Stated Amount for
such quarter (or portion thereof) times (iii) a fraction, the numerator of which
is the number of days in such quarter (or portion thereof) on which such
applicable percentage applies to Borrower and the denominator of which is 360.
======================================================================================
LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 5
Long Term Long Term Long Term Long Term Long Term
Senior Senior Senior Senior Senior
Unsecured Unsecured Unsecured Unsecured Unsecured
Non Credit Non Credit Non Credit Non Credit Non Credit
Enhanced Enhanced Enhanced Enhanced Enhanced
Debt of the Debt of the Debt of the Debt of the Debt of the
Borrower Borrower Borrower Borrower Borrower
Rated At Rated Less Rated Less Rated Less Rated Less
Least A By Than Level 1 Than Level Than Level 3 Than Level 4
S & P Or But At 2 But At But At
A2 By Least A- By Least BBB+ Least BBB
Moody's. S & P Or A3 By S & P By S & P Or
By Moody's. Or Baa1 By Baa2 By
Moody's. Moody's.
======================================================================================
Lenders .380% .420% .450% .550% .750%
Letter of
Credit Fee
- --------------------------------------------------------------------------------------
2.5 Other Payment Terms.
2.5.1 Place and Manner. Borrower shall make all payments due to each
Lender hereunder to Administrative Agent, for the account of such Lender, to
Citibank, N.A., ABA 021000089, Account Number: 36852248, in lawful money of the
United States and in immediately available funds not later than 12:00 noon, on
the date on which such payment is due. Any payment received after such time on
any day shall be deemed received on the Banking
16
Day after such payment is received. Administrative Agent shall disburse to each
Lender each such payment received by Administrative Agent for such Lender, such
disbursement to occur on the day such payment is received if received by 12:00
noon, otherwise on the next Banking Day.
2.5.2 Date. Whenever any payment due hereunder shall fall due on a
day other than a Banking Day, such payment shall be made on the next succeeding
Banking Day, and such extension of time shall be included in the computation of
interest or fees, as the case may be, without duplication of any interest or
fees so paid in the next subsequent calculation of interest or fees payable.
2.5.3 Late Payments. If any amounts required to be paid by Borrower
under this Agreement or the other Credit Facility Documents (including principal
or interest payable on any Loan, and any fees or other amounts otherwise payable
to Administrative Agent or any Lender) remain unpaid after such overdue amounts
are due, Borrower shall pay interest (including following any Bankruptcy Event
with respect to Borrower) on the aggregate, outstanding balance of such amounts
from the date due until those amounts are paid in full at a per annum rate equal
to the Default Rate.
2.5.4 Net of Taxes, Etc.
2.5.4.1 Taxes. Subject to each Lender's compliance with
Section 2.5.7, any and all payments to or for the benefit of Administrative
Agent or any Lender by Borrower hereunder or under any other Credit Facility
Document shall be made free and clear of and without deduction, setoff or
counterclaim of any kind whatsoever and in such amounts as may be necessary in
order that all such payments, after deduction for or on account of any present
or future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto (excluding income and franchise taxes, which
include taxes imposed on or measured by the net income, net profits or capital
of Administrative Agent or such Lender by any jurisdiction or any political
subdivision or taxing authority thereof or therein as a result of a connection
between such Lender and such jurisdiction or political subdivision, unless such
connection results solely from such Lender's executing, delivering or performing
its obligations or receiving a payment under, or enforcing, this Agreement or
any Note) (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"), shall be
equal to the amounts otherwise specified to be paid under this Agreement and the
other Credit Facility Documents. If Borrower shall be required by law to
withhold or deduct any Taxes from or in respect of any sum payable hereunder or
under any other Credit Facility Document to Administrative Agent or any Lender,
(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 2.5.4), Administrative Agent or such Lender receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) Borrower shall make such deductions and (iii) Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law. In addition, Borrower agrees to pay any present
or future stamp, recording or documentary taxes and any other excise or property
taxes, charges or similar levies (not including income or franchise taxes) that
arise under the laws of the United States of America, the State of New York or
the State of Florida from any payment made hereunder or under any other Credit
Facility
17
Document or from the execution or delivery or otherwise with respect to this
Agreement or any other Credit Facility Document (hereinafter referred to as
"Other Taxes").
2.5.4.2 Indemnity. Borrower shall indemnify each Lender for
and hold it harmless against the full amount of Taxes and Other Taxes (including
any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under
this Section 2.5.4) paid by any Lender, or 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; provided that
Borrower shall not be obligated to indemnify any Lender for any penalties,
interest or expenses relating to Taxes or Other Taxes arising from such Lender's
gross negligence or willful misconduct. Each Lender agrees to give notice to
Borrower of the assertion of any claim against such Lender relating to such
Taxes or Other Taxes as promptly as is practicable after being notified of such
assertion, and in no event later than 90 days after the principal officer of
such Lender responsible for administering this Agreement obtains knowledge
thereof; provided that any Lender's failure to notify Borrower of such assertion
within such 90 day period shall not relieve Borrower of its obligation under
this Section 2.5.4 with respect to Taxes or Other Taxes, penalties, interest or
expenses arising prior to the end of such period, but shall relieve Borrower of
its obligations under this Section 2.5.4 with respect to Taxes and Other Taxes,
penalties, interest or expenses accruing between the end of such period and such
time as Borrower receives notice from such Lender as provided herein. Payments
by Borrower pursuant to this indemnification shall be made within 30 days from
the date such Lender makes written demand therefor (submitted through
Administrative Agent), which demand shall be accompanied by a certificate
describing in reasonable detail the basis thereof.
2.5.4.3 Notice. Within 30 days after the date of any payment
of Taxes by Borrower, Borrower shall furnish to Administrative Agent, at its
address referred to in Section 8.1, the original or a certified copy of a
receipt evidencing payment thereof or if such receipt is not obtainable, other
evidence of such payment by Borrower reasonably satisfactory to Administrative
Agent. Borrower shall compensate each Lender for all reasonable losses and
expenses sustained by such Lender as a result of any failure by Borrower to so
furnish such copy of such receipt.
2.5.4.4 Conduits. Notwithstanding anything to the contrary
contained in this Section 2.5.4, if a Lender is a conduit entity participating
in a conduit financing arrangement (as defined in Section 770(1) of the Code and
the Treasury Regulations issued thereunder) then with respect to any payments
made by Borrower under this Agreement or under any Note, Borrower shall not be
obligated to pay additional amounts to such Lender pursuant to this Section
2.5.4 to the extent that the amount of United States Taxes exceeds the amount
that would have otherwise been payable if such Lender were not a conduit entity
participating in a conduit financing arrangement.
2.5.4.5 Survival of Credit Facility Obligations. The
obligations of Borrower under this Section 2.5.4 shall survive the termination
of this Agreement and the repayment of the Obligations.
2.5.5 Application of Payments. Payments made under this Agreement or
the other Credit Facility Documents shall (a) first be applied to any fees,
costs, charges or expenses
18
due and payable to Administrative Agent, LC Issuing Bank and the Lenders
hereunder or under the other Credit Facility Documents and, to the extent not
paid in full, shall be allocated between the two Facilities based on the amount
of all fees, costs, charges or expenses then due and payable to Administrative
Agent, LC Issuing Bank and the Lenders under each Facility compared to the
aggregate of all fees, costs, charges or expenses then due and payable to
Administrative Agent, LC Issuing Bank and the Lenders under both Facilities, (b)
next to any accrued but unpaid interest then due and owing under the Facilities
and, to the extent not paid in full, shall be allocated between the Facilities
based on the amount of all accrued but unpaid interest then due and owing under
each Facility as compared to the aggregate of all accrued but unpaid interest
then due and owing under both Facilities, and (c) then to outstanding principal
(and Reimbursement Obligations) then due and payable or otherwise to be prepaid
under the Facilities and, to the extent not paid in full, shall be allocated
between the Facilities based on the amount of the then outstanding principal
(and Reimbursement Obligations) then due and payable or otherwise to be prepaid
under each Facility as compared to the aggregate of all outstanding principal
(and Reimbursement Obligations) then due and payable or otherwise to be prepaid
under both Facilities.
2.5.6 Failure to Pay Administrative Agent. Unless Administrative
Agent shall have received notice from Borrower at least two Banking Days prior
to the date on which any payment is due to the Lenders hereunder that Borrower
will not make such payment in full, Administrative Agent may assume that
Borrower has made such payment in full to Administrative Agent on such date and
Administrative 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 Borrower shall not have so made such
payment in full to Administrative Agent, such Lender shall repay to
Administrative Agent forthwith upon 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
Administrative Agent, at the Federal Funds Rate for the first five days after
such date, and subsequent thereto at the Base Rate. A certificate of
Administrative Agent submitted to any Lender with respect to any amounts owing
by such Lender under this Section 2.5.6 shall be conclusive in the absence of
demonstrable error.
2.5.7 Withholding Exemption Certificates. Administrative Agent on
the Closing Date and each Lender upon becoming a Lender hereunder including any
entity to which any Lender grants a participation or otherwise transfers its
interest in this Agreement agrees that it will deliver to Administrative Agent
and Borrower either (A) a statement that it is formed under the laws of the
United States of America or a state thereof or (B) if it is not so incorporated,
two duly completed copies of United States Internal Revenue Service Form W-8ECI
or W-8BEN or successor applicable form, as the case may be, certifying in each
case that such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes. Each
Lender which delivers to Borrower and Administrative Agent a Form W-8ECI or
W-8BEN pursuant to the preceding sentence further undertakes to deliver to
Borrower and Administrative Agent further copies of the said letter and Form
W-8ECI or W-8BEN, or successor applicable forms, or other manner of
certification or procedure, as the case may be, on or before the date that any
such letter or form expires or becomes obsolete or within a reasonable time
after gaining knowledge of the occurrence of any event requiring a change in the
most recent letter and forms previously
19
delivered by it to Borrower, and such extensions or renewals thereof as may
reasonably be requested by Borrower, certifying in the case of a Form W-8ECI or
W-8BEN that such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes,
unless in any such cases an event (including any change in any treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
reasonably prevent a Lender from duly completing and delivering any such letter
or form with respect to it and such Lender advises Borrower that it is not
capable of receiving payments without any deduction or withholding of United
States federal income tax, and in the case of Form W-8ECI or W-8BEN,
establishing an exemption from United States backup withholding tax. Borrower
shall not be obligated, however, to pay any additional amounts in respect of
United States Federal income tax pursuant to Section 2.5.4.1 (or make an
indemnification payment pursuant to Section 2.5.4.2) to any Lender (including
any entity to which any Lender sells, assigns, grants a participation in, or
otherwise transfers its rights under this Agreement) if the obligation to pay
such additional amounts (or such indemnification) would not have arisen but for
a failure of such Lender to comply with its obligations under this Section
2.5.7.
2.6 Pro Rata Treatment.
2.6.1 Borrowings, Commitment Reductions, Etc. Except as otherwise
provided herein, (a) each Borrowing under each Facility and each reduction of
the Total Commitment under each Facility shall be made or allocated among the
Lenders under such Facility pro rata according to their respective Proportionate
Shares of the applicable Facility, (b) each payment of a Reimbursement
Obligation or principal and interest on Loans under each Facility shall be made
or shared among the Lenders holding such Loans, pro rata according to their
respective Proportionate Shares of the applicable Facility and (c) each payment
of Facility Fees under each Facility and Letter of Credit Fees under the 3-Year
Facility shall be shared among the Lenders pro rata according to (i) their
respective Proportionate Shares of the Commitments under the Facility to which
such fees apply and (ii) in the case of each Lender which becomes a Lender
hereunder after the date hereof, the date upon which such Lender so became a
Lender.
2.6.2 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) hereunder in excess of its ratable share of payments in
accordance with Section 2.6.1, such Lender shall forthwith purchase from the
other Lenders such participations in the Loans under the applicable Facility as
shall be necessary to cause such 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 such Lender shall be rescinded and each other Lender shall repay
to the purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such other Lender's ratable share (according to
the proportion of (a) the amount of such other Lender's required repayment to
(b) 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. Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 2.6.2 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 Borrower in the amount of such participation.
20
2.7 Change of Circumstances.
2.7.1 Inability to Determine Rates. If, on or before the first day
of any Interest Period for any LIBOR Loans, (a) Administrative Agent determines
that the LIBOR Rate for such Interest Period cannot be adequately and reasonably
determined due to the unavailability of funds in or other circumstances
affecting the London interbank market, or (b) Lenders holding aggregate
Proportionate Shares of 33 1/3% or more shall advise Administrative Agent that
(i) the rates of interest for such LIBOR Loans do not adequately and fairly
reflect the cost to such Lenders of making or maintaining such Loans or (ii)
deposits in Dollars in the London interbank market are not available to such
Lenders (as conclusively certified by each such Lender in good faith in writing
to Administrative Agent and to Borrower) in the ordinary course of business in
sufficient amounts to make and/or maintain its LIBOR Loans, Administrative Agent
shall immediately give notice of such condition to Borrower. After the giving of
any such notice and until Administrative Agent shall otherwise notify Borrower
that the circumstances giving rise to such condition no longer exist, Borrower's
right to request the making of or conversion to, and the Lenders' obligations to
make or convert to, LIBOR Loans shall be suspended. Any LIBOR Loans outstanding
at the commencement of any suspension shall be converted at the end of the then
current Interest Period for such Loans into Base Rate Loans, as applicable,
unless such suspension has then ended.
2.7.2 Illegality. If, after the date of this Agreement, the adoption
of any Governmental Rule, any change in any Governmental Rule or the application
or requirements thereof (whether such change occurs in accordance with the terms
of such Governmental Rule as enacted, as a result of amendment, or otherwise),
any change in the interpretation or administration of any Governmental Rule by
any Governmental Authority, or compliance by any Lender or Borrower with any
request or directive (whether or not having the force of law, but if not having
the force of law, being of the type with which a Lender customarily complies) of
any Governmental Authority (a "Change of Law") shall make it unlawful or
impossible for any Lender to make or maintain any LIBOR Loan, such Lender shall
immediately notify Administrative Agent and Borrower of such Change of Law. Upon
receipt of such notice, (a) Borrower's right to request the making of or
conversion to, and the Lenders' obligations to make or convert to, LIBOR Loans,
as the case may be, shall be suspended for so long as such condition shall
exist, and (b) Borrower shall, at the request of such Lender, either (i)
pursuant to Section 2.1.4, convert any then outstanding LIBOR Loans into Base
Rate Loans at the end of the current Interest Periods for such Loans, or (ii)
immediately repay or convert (at Borrower's option) LIBOR Loans into Base Rate
Loans if such Lender shall notify Borrower that such Lender may not lawfully
continue to fund and maintain such Loans as LIBOR Loans. Any conversion or
prepayment of LIBOR Loans made pursuant to the preceding sentence prior to the
last day of an Interest Period for such Loans shall be deemed a prepayment
thereof for purposes of Section 2.8.
2.7.3 Increased Costs. If, after the date of this Agreement, any
Change of Law:
2.7.3.1 Shall subject any Lender to any tax, duty or other
charge with respect to any LIBOR Loan, or Commitment in respect thereof, or
shall change the basis of taxation of payments by Borrower to any Lender on such
a Loan or with respect to any such
21
Commitment (except for Taxes, Other Taxes or changes in the rate of taxation on
the overall net income of any Lender); or
2.7.3.2 Shall impose, modify or hold applicable any reserve,
special deposit or similar requirement (without duplication of any reserve
requirement included within the applicable interest rate through the definition
of "Reserve Requirement") against assets held by, deposits or other liabilities
in or for the account of, advances or loans by, or any other acquisition of
funds by, any Lender for any LIBOR Loan; or
2.7.3.3 Shall impose on any Lender any other condition
directly related to any LIBOR Loan or Commitment in respect thereof;
and the effect of any of the foregoing is to increase the cost to such Lender of
making, issuing, creating, renewing, participating in or maintaining any such
LIBOR Loan or Commitment in respect thereof or to reduce any amount receivable
by such Lender hereunder; then Borrower shall from time to time, within 30 days
after demand by such Lender, pay to such Lender additional amounts sufficient to
reimburse such Lender for such increased costs or to compensate such Lender for
such reduced amounts. A certificate setting forth in reasonable detail the
amount of such increased costs or reduced amounts and the basis for
determination of such amount, submitted by such Lender to Borrower, shall, in
the absence of demonstrable error, be conclusive and binding on Borrower for
purposes of this Agreement.
2.7.4 Capital Requirements. If any Lender determines that (a) any
Change of Law after the date of this Agreement increases the amount of capital
required or expected to be maintained by such Lender, or the Lending Office of
such Lender or any Person controlling such Lender (a "Capital Adequacy
Requirement"), and (b) the amount of capital maintained by such Lender or such
Person which is attributable to or based upon the Loans, the Commitments or this
Agreement must be increased as a result of such Capital Adequacy Requirement
(taking into account such Lender's or such Person's policies with respect to
capital adequacy), Borrower shall pay to Administrative Agent on behalf of such
Lender or such Person, within 30 days after demand of Administrative Agent on
behalf of such Lender or such Person, such amounts as such Lender or such Person
shall reasonably determine are necessary to compensate such Lender or such
Person for the increased costs to such Lender or such Person of such increased
capital. A certificate of such Lender or such Person, setting forth in
reasonable detail the computation of any such increased costs, delivered to
Borrower by Administrative Agent on behalf of such Lender or such Person shall,
in the absence of demonstrable error, be conclusive and binding on Borrower for
purposes of this Agreement.
2.7.5 Notice; Participating Lenders' Rights. Each Lender shall
notify Borrower of any event occurring after the date of this Agreement that
will entitle such Lender to compensation pursuant to this Section 2.7, as
promptly as practicable, and in no event later than 180 days after the principal
officer of such Lender responsible for administering this Agreement obtained
knowledge thereof; provided, however, that the failure to give Borrower notice
within such 180 day period and to make such determination during such periods
shall not relieve Borrower of the obligation under this Section 2.7 with respect
to any claim arising prior to the end of such period, but shall relieve Borrower
of its obligations under this Section 2.7 with respect to the time between the
end of such period and such time as Borrower receives notice
22
from the such Lender as provided herein. No Person purchasing from a Lender a
participation in any Commitment (as opposed to an assignment) shall be entitled
to any payment from or on behalf of Borrower pursuant to Section 2.7.3 or
Section 2.7.4 which would be in excess of the applicable proportionate amount
(based on the portion of the Commitments in which such Person is participating)
which would then be payable to such Lender if such Lender had not sold a
participation in that portion of the Commitment.
2.8 Funding Losses. If Borrower shall (a) repay or prepay any LIBOR Loans
on any day other than the last day of an Interest Period for such Loans, (b)
fail to borrow any LIBOR Loans in accordance with a Notice of Borrowing or
Notice of Term-Conversion delivered to Administrative Agent (whether as a result
of the failure to satisfy any applicable conditions or otherwise) after such
notice has become irrevocable, (c) fail to convert any Base Rate Loans into
LIBOR Loans, as applicable, in accordance with a Notice of Conversion of Loan
Type or Notice of Term-Conversion delivered to Administrative Agent (whether as
a result of the failure to satisfy any applicable conditions or otherwise) after
such notice has become irrevocable, (d) fail to continue a LIBOR Loan in
accordance with a Confirmation of Interest Period Selection after such notice of
confirmation has become irrevocable, or (e) fail to make any prepayment in
accordance with any notice of prepayment delivered to Administrative Agent,
Borrower shall, within 30 days after demand by any Lender, reimburse such Lender
for all reasonable costs and losses incurred by such Lender ("Liquidation
Costs") due to such payment, prepayment or failure. Borrower understands that
such costs and losses may include losses incurred by a Lender as a result of
funding and other contracts entered into by such Lender to fund LIBOR Loans
(other than non receipt of the Applicable Margin). Each Lender demanding payment
under this Section 2.8 shall deliver to Borrower a certificate setting forth in
reasonable detail the amount of costs and losses for which demand is made. Such
a certificate so delivered to Borrower shall, in the absence of demonstrable
error, be conclusive and binding as to the amount of such loss for purposes of
this Agreement.
2.9 Alternate Office, Minimization of Costs.
2.9.1 Minimization of Costs. To the extent reasonably possible, each
Lender shall designate an alternative Lending Office with respect to its LIBOR
Loans and otherwise take any reasonable actions to reduce any liability of
Borrower to any Lender under Sections 2.5.4, 2.7.3, 2.7.4 or 2.8, or to avoid
the unavailability of any Type of Loans under Section 2.7.2 so long as (in the
case of the designation of an alternative Lending Office) such Lender, in its
sole discretion, does not determine that such designation is disadvantageous to
such Lender.
2.9.2 Replacement Rights. If and with respect to each occasion that
a Lender either makes a demand for compensation pursuant to Section 2.5.4, 2.7.3
or 2.7.4 or is unable for a period of three consecutive months to fund LIBOR
Loans pursuant to Section 2.7.2 or such Lender wrongfully fails to fund a Loan,
Borrower may, upon at least 5 Banking Days' prior irrevocable written notice to
each of such Lenders and Administrative Agent, in whole permanently replace the
Loans and Commitments of such Lender; provided that Borrower shall replace such
Loans and Commitments with the Loans and Commitments of a lender reasonably
satisfactory to Administrative Agent. Such replacement Lender shall upon the
effective date of replacement purchase the Obligations owed to such replaced
Lender for the aggregate amount thereof and shall thereupon and for all purposes
become a "Lender" hereunder. Such notice from
23
Borrower shall specify an effective date for the replacement of such Lender's
Loans and Commitments, which date shall not be later than the fourteenth (14th)
day after the day such notice is given. On the effective date of any replacement
of such Lender's Loans and Commitments and Obligations pursuant to this Section
2.9.2, Borrower shall pay to Administrative Agent for the account of such Lender
(a) any fees due to such Lender to the date of such replacement; (b) the
principal of and accrued interest on the principal amount of outstanding Loans
held by such Lender to the date of such replacement (such amount to be
represented by the purchase of the Obligations of such replaced Lender by the
replacing Lender and not as a prepayment of such Loans), and (c) the amount or
amounts due to such Lender pursuant to each of Sections 2.5.4, 2.7.3 or 2.7.4,
as applicable, and any other amount then payable hereunder to such Lenders. In
addition, if the replacement Lender was not previously a "Lender" hereunder,
Borrower shall pay to Administrative Agent an administrative fee of $3,500.
Borrower will remain liable to such replaced Lender for any Liquidation Costs
that such Lender may sustain or incur as a consequence of the purchase of such
Lender's Loans (unless such Lender has defaulted on its obligation to fund a
Loan hereunder). Upon the effective date of the purchase of any Lender's Loans
and termination of such Lender's Commitments pursuant to this Section 2.7.2,
such Lender shall cease to be a Lender hereunder. No such termination of such
Lender's Commitments and the purchase of such Lender's Loans pursuant to this
Section 2.7.2 shall affect (i) any liability or obligation of Borrower or any
other Lender to such terminated Lender, or any liability or obligation of such
terminated Lender to Borrower or any other Lender, which accrued on or prior to
the date of such termination or (ii) such terminated Lender's rights hereunder
in respect of any such liability or obligation.
2.9.3 Alternate Office. Any Lender may designate a Lending Office
other than that set forth on Schedule 1A or 1B, as the case may be, and may
assign all of its interests under the Credit Facility Documents, and its Notes,
to such Lending Office, provided that such designation and assignment do not at
the time of such designation and assignment increase the reasonably foreseeable
liability of Borrower under Sections 2.5.4, 2.7.3 or 2.7.4, or make an interest
rate option unavailable pursuant to Section 2.7.2.
ARTICLE III.
CONDITIONS PRECEDENT
3.1 Conditions Precedent to the Closing Date. The obligation of the
Lenders to execute this Agreement and make any requested Revolving Loans on the
Closing Date is subject to the prior satisfaction of each of the following
conditions (unless waived in writing by Administrative Agent with the consent of
the Lenders):
3.1.1 Credit Facility Documents. Delivery to Administrative Agent of
executed originals of each Credit Facility Document, all of which shall be in
form and substance satisfactory to the Lenders, and shall have been duly
authorized, executed and delivered by the parties thereto.
3.1.2 Resolutions. Delivery to Administrative Agent of a copy of one
or more resolutions or other authorizations of Borrower in form and substance
reasonably satisfactory to the Lenders and certified by the appropriate officers
of Borrower as being in full force and effect on the Closing Date, authorizing
the execution, delivery and performance of this Agreement and
24
the other Credit Facility Documents and any instruments or agreements required
hereunder or thereunder to which such entity is a party.
3.1.3 Incumbency. Delivery to Administrative Agent of a certificate
in form and substance reasonably satisfactory to the Lenders, from Borrower
signed by the appropriate authorized officer and dated the Closing Date, as to
the incumbency of the natural persons authorized to execute and deliver this
Agreement and the other Credit Facility Documents and any instruments or
agreements required hereunder or thereunder to which Borrower is a party.
3.1.4 Legal Opinions. Delivery to Administrative Agent of legal
opinions of counsel to Borrower and counsel to Administrative Agent, each in
form and substance reasonably satisfactory to the Lenders.
3.1.5 Accuracy of Representations and Warranties. Each
representation and warranty set forth in Article IV shall be true and correct in
all material respects.
3.1.6 Financial Statements Administrative Agent shall have received
the most recent annual audited financial statements or Form 10-K from Borrower
and, to the extent obtainable, the most recent quarterly financial statements or
Form 10-Q of Borrower, with certificates from the appropriate Responsible
Officer thereof, stating that no material adverse change in the consolidated
assets, liabilities, operations or financial condition of Borrower has occurred
from those set forth in the most recent financial statements or the balance
sheet, as the case may be, so provided to Administrative Agent.
3.1.7 No Defaults. No Event of Default or Inchoate Default shall
have occurred and is continuing or will result from the execution of this
Agreement or any other Credit Facility Document.
3.1.8 Notice of Borrowing. If a Loan is to be made on the Closing
Date, Administrative Agent shall have received a Notice of Borrowing meeting the
requirements of Section 2.1.1.2.
3.1.9 Certificate of Borrower. Administrative Agent shall have
received a certificate, dated as of the Closing Date, signed by a Responsible
Officer of Borrower, in substantially the form of Exhibit D.
3.1.10 Payment of Fees. All amounts required to be paid to
Administrative Agent under the Credit Facility Documents, and all taxes, fees
and other costs payable in connection with the execution and delivery of the
documents and instruments referred to in this Section 3.1 (or incorporated
herein by reference) shall have been paid in full or, as approved by
Administrative Agent, provided for.
3.2 Conditions Precedent to Each Borrowing, Term-Conversion and LC
Activity.
The obligation of the Lenders to make each subsequent Revolving Loan and
any Term Loan and the obligation of LC Issuing Bank to issue, extend or increase
the Stated Amount of any Letter of Credit is subject to the prior satisfaction
of each of the following conditions (unless
25
waived by Administrative Agent with the consent of (i) with respect to making a
Revolving Loan or Term Loan under the 364-Day Facility, Lenders holding in
excess of 50% of the Proportionate Shares in the 364-Day Facility, and (ii) with
respect to making a Revolving Loan or issuing, extending or increasing the
Stated Amount of any Letter of Credit under the 3-Year Facility, Lenders holding
in excess of 50% of the Proportionate Shares in the 3-Year Facility):
3.2.1 Accuracy of Representations and Warranties. Each
representation and warranty set forth in Article IV shall be true and correct in
all material respects as if made on and as of the date of such Borrowing,
Term-Conversion or issuance, extension or increase in the Stated Amount of a
Letter of Credit, as the case may be, before and after giving effect thereto and
the application of the proceeds therefrom, unless such representation or
warranty relates solely to another time, in which event such representation or
warranty shall be true and correct in all material respects as of such other
time.
3.2.2 No Defaults. No Event of Default or Inchoate Default shall
have occurred and is continuing or will result from such Borrowing,
Term-Conversion or issuance, extension or increase in the Stated Amount of any
Letter of Credit.
3.2.3 No Material Adverse Effect. No event or circumstance shall
have occurred and is continuing which is reasonably likely to have a Material
Adverse Effect on Borrower or will result from such Borrowing, Term-Conversion
or issuance, extension or increase in the Stated Amount of any Letter of Credit.
3.2.4 Notice of Borrowing; Term-Conversion or LC Activity. Delivery
to Administrative Agent of a Notice of Borrowing, Notice of Term-Conversion or
Notice of LC Activity, as applicable, meeting the requirements of Section
2.1.1.2, Section 2.1.2.2 or 2.2.3, as the case may be.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Borrower makes the following representations and warranties to and in
favor of Administrative Agent and the Lenders as of the Closing Date and, unless
otherwise expressly limited to the Closing Date, as of the date of each
Borrowing, Term-Conversion and the issuance, extension or increase in the Stated
Amount of a Letter of Credit. All of these representations and warranties shall
survive the Closing Date, the issuance of any Notes and the making of the Loans:
4.1 Corporate Existence and Business. Borrower is a corporation duly
organized and validly existing in good standing under the laws of its
jurisdiction of incorporation and is duly qualified to do business and is in
good standing in each jurisdiction in which such qualification is necessary to
execute, deliver and perform this Agreement and each other Credit Facility
Document to which it is or is to become a party.
4.2 Power and Authorization; Enforceable Obligations. Borrower has full
power and authority and the legal right to execute, deliver and perform this
Agreement and each other Credit Facility Document to which it is or is to become
a party and to take all action as may be necessary to complete the transactions
contemplated hereunder and thereunder. Borrower has
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taken all necessary corporate action to authorize the execution, delivery and
performance of this Agreement and each other Credit Facility Document to which
it is or is to become a party to complete the transactions contemplated hereby.
No consent or authorization of, filing with, or other act by or in respect of
any other Person or Governmental Authority is required in connection with the
execution, delivery or performance by Borrower, or the validity or
enforceability as to Borrower, of this Agreement and each other Credit Facility
Document to which it is or is to become a party, except such consents or
authorizations or filings or other acts as have already been obtained or where
the failure to obtain such consent or authorization could not reasonably be
expected to have a Material Adverse Effect on Borrower. This Agreement and each
other Credit Facility Document to which Borrower is a party have been duly
executed and delivered by Borrower and constitute, and each other Credit
Facility Document to which it is to become a party will upon execution and
delivery thereof by Borrower and the other parties thereto (if any) constitutes,
a legal, valid and binding obligation of Borrower enforceable against it in
accordance with its terms except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
right of creditors generally and by general principles of equity.
4.3 No Legal Bar. The execution, delivery and performance by Borrower of
this Agreement and each other Credit Facility Document to which it is or is to
become a party to complete the transactions contemplated hereby and the making
by Borrower of any payments hereunder or under any other Credit Facility
Document to which it is a party will not violate any applicable law or any
material contractual obligation of Borrower and will not result in, or require,
the creation or imposition of any Lien on any of the properties or revenues of
Borrower pursuant to any applicable law or any such contractual obligation
except, in each case, where such violation, creation or imposition could not
reasonably be expected to have a Material Adverse Effect on Borrower.
4.4 No Proceeding or Litigation. No litigation or proceeding of or before
any Governmental Authority is pending or, to the knowledge of Borrower,
threatened in writing against Borrower, except where such litigation or
proceeding could not reasonably be expected to have a Material Adverse Effect on
Borrower.
4.5 Governmental Approvals. All governmental authorizations and actions
necessary in connection with the execution and delivery by Borrower of this
Agreement and the performance of its obligations hereunder have been obtained or
performed and remain valid and in full force and effect.
4.6 Financial Statements. All quarterly and annual financial statements of
Borrower and its consolidated subsidiaries heretofore delivered by Borrower to
Administrative Agent were true, correct and complete in all material respects,
did not fail to disclose any material liabilities, whether direct or contingent,
and fairly presented in all material respects the financial condition of
Borrower and its consolidated subsidiaries, as the case may be, in each case as
of the date delivered and were prepared in accordance with GAAP. Since June 30,
2001, there has been no material adverse change in the business, operations,
property, assets or financial condition of Borrower and its consolidated
subsidiaries taken as a whole.
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4.7 True and Complete Disclosure. All factual information heretofore or
contemporaneously furnished by Borrower or its representatives in writing to
Administrative Agent or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated herein was true and accurate in all
material respects on the date as of which such information was dated or
certified and at such date did not omit to state any fact necessary to make such
information not misleading at such time in light of the circumstances under
which such information was provided. The information referred to in the
immediately preceding sentence furnished to Administrative Agent or any Lender
on or prior to the Closing Date, taken as a whole, as updated or supplemented
from time to time, is true and correct in all material respects as of the
Closing Date, and as of the Closing Date all such information does not omit to
state any fact which could reasonably be expected to have a Material Adverse
Effect on Borrower.
4.8 Investment Company Act. Borrower is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended and is exempt from
regulation under PUHCA and the Federal Power Act.
4.9 Compliance with Law. There is no violation by Borrower or any
Significant Subsidiary of any Governmental Rule which could reasonably be
expected to have a Material Adverse Effect on Borrower. Except as have been
delivered to Administrative Agent, no notices of violation of any Governmental
Rule have been issued, entered or received by Borrower.
4.10 ERISA. Borrower and any other Person which is under common control
(within the meaning of Section 414(b) or (c) of the Code) with Borrower have
fulfilled their obligations (if any) under the minimum funding standards of
ERISA and the Code for each ERISA Plan in compliance in all material respects
with the currently applicable provisions of ERISA and the Code and have not
incurred any liability to the PBGC or an ERISA Plan under Title IV of ERISA
(other than liability for premiums due in the ordinary course). Assuming that
the credit extended hereunder does not involve the assets of any employee
benefit plan subject to ERISA, neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby will involve a Prohibited
Transaction.
ARTICLE V.
COVENANTS OF BORROWER
Borrower covenants and agrees that until the repayment in full of the
Obligations (other than those contingent obligations that are intended to
survive the termination of this Agreement or the other Credit Facility
Documents) and the expiration and termination of all Commitments, unless
Administrative Agent on behalf of the Lenders waive compliance in writing:
5.1 Existence. Borrower shall, and shall cause each Significant Subsidiary
to, maintain and preserve its existence in good standing in the state of its
formation and its qualification to do business in each other jurisdiction where
such qualification is necessary and all material rights, privileges and
franchises necessary in the normal conduct of its business.
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5.2 Consents, Legal Compliance. Borrower shall maintain in full force and
effect all consents of any Governmental Authority that are required to be
obtained by it in order for it to perform its obligations under this Agreement
and will obtain any that may become necessary in the future.
5.3 Prohibition of Certain Transfers.
5.3.1 Borrower shall not, and shall not permit any Significant
Subsidiary to, liquidate or dissolve, or combine, consolidate or merge with or
into another Person (other than any consolidation or mergers between or among
Borrower and its Significant Subsidiaries); except that Borrower or any
Significant Subsidiary may combine, consolidate or merge with another Person if
(i) Borrower or a Significant Subsidiary, as the case may be, is the surviving
corporation of such merger, consolidation or combination; (ii) after giving
effect thereto, Borrower's long term unsecured indebtedness ratings from Moody's
and S&P are at least Baa2 and BBB-, respectively, or Baa3 and BBB, respectively;
(iii) prior to such merger, consolidation or combination, and after giving
effect thereto, no Inchoate Default or Event of Default shall have occurred and
be continuing; (iv) Borrower shall have provided pro forma calculations to
Administrative Agent demonstrating that, to the reasonable satisfaction of
Administrative Agent, after giving effect to such merger, consolidation or
combination, the projected ratio of Total Debt to Capitalization for the next
succeeding fiscal quarter will be less than or equal to 0.65 to 1.00; and (v)
Borrower's rights and obligations under this Agreement and Administrative
Agent's rights and obligations under this Agreement shall not be diminished in
any manner as a result of such merger, consolidation or combination.
5.3.2 Except as set forth in this Section 5.3 or sales that are in
the nature of financing leases, Borrower shall not, and shall not permit any
Significant Subsidiary to, sell, lease, assign or otherwise transfer or dispose
of, directly or indirectly, all or any substantial part of such Significant
Subsidiary's property, business or assets; provided that (i) Borrower or any
Significant Subsidiary may sell, lease or otherwise transfer or dispose of,
directly or indirectly, assets to any Significant Subsidiary; (ii) Tampa
Electric may sell, contribute or otherwise transfer its transmission and
transmission-related assets for fair value to a regional transmission
organization; and (iii) TPS may sell, transfer or otherwise assign up to 30% of
its assets in exchange for similar assets or for cash; provided that if such
sale is for cash, then such cash is (A) retained by TPS or Borrower in cash or
equivalent short term investments (provided that TPS and Borrower shall not be
obligated to so maintain any such proceeds in cash or equivalent investments at
any time that Borrower is rated at least Baa2 by Moody's and BBB+ by S&P or Baa1
by Moody's and BBB by S&P) and reinvested within nine months of the date of such
sale in assets similar to those sold, or (B) used to prepay any other
Indebtedness of Borrower and/or its subsidiaries to the extent required in
accordance with its terms.
5.3.3 Except as set forth in this Section 5.3 or on Schedule 5.3,
Borrower shall not, and shall not permit any Significant Subsidiary to,
mortgage, pledge or encumber all or substantially all of its assets; provided
that Borrower and any subsidiary of Borrower may enter into limited recourse
project financing transactions (including in the form of synthetic leases) in
the ordinary course of Borrower's or such subsidiary's business.
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5.3.4 Except as set forth in this Section 5.3, Borrower shall not
sell, assign or otherwise transfer, by way of collateral assignment or
otherwise, or dispose of, directly or indirectly (by way of collateral
assignment or otherwise) any Equity Interest in any Significant Subsidiary;
provided that (a) Borrower may sell, transfer or otherwise assign 20% of
Borrower's Equity Interests in TPS and (b) Borrower or any subsidiary of
Borrower may engage in limited recourse project financing transactions as
provided in Section 5.3.3.
5.4 Payment and Performance of Material Obligations. Borrower shall, and
shall cause each Significant Subsidiary to, pay and perform all its material
obligations, howsoever arising, as and when due and payable or required to be
performed, except (a) such as may be contested in good faith or as to which a
bona fide dispute may exist; provided that adequate reserves have been
established in accordance with GAAP, and (b) trade payables which shall be paid
in the ordinary course of business.
5.5 Taxes. Borrower shall, and shall cause each Significant Subsidiary to,
file all tax returns and pay, or cause to be paid, as and when due and prior to
delinquency, all material taxes, assessments and governmental charges of any
kind that may at any time be lawfully assessed or levied against or with respect
to it; provided that Borrower or any Significant Subsidiary may contest in good
faith any such taxes, assessments and other charges and, in such event, may
permit the taxes, assessments or other charges so contested to remain unpaid
during any period, including appeals, when such Person is in good faith
contesting the same, so long as (a) adequate reserves have been established in
accordance with GAAP, (b) enforcement of the contested tax, assessment or other
charge is effectively stayed for the entire duration of such contest if such
enforcement could reasonably be expected to have a Material Adverse Effect on
Borrower, and (c) any tax, assessment or other charge determined to be due,
together with any interest or penalties thereon, is promptly paid as required
after final resolution of such contest.
5.6 Maintenance of Property, Insurance. Borrower shall, and shall cause
each Significant Subsidiary to, (a) keep all property useful and necessary in
its business in good working order and condition except where the failure to so
maintain could not reasonably be expected to have a Material Adverse Effect on
Borrower, (b) maintain proper books and records in accordance with GAAP, (c)
permit Administrative Agent to visit and inspect its properties at reasonable
times and upon reasonable notice, (d) maintain with financially sound and
reputable insurance companies insurance on all its property in at least such
amounts and against at least such risks as are in accordance with normal
industry practice, or make provisions reasonably satisfactory to Administrative
Agent for self-insurance in accordance with normal industry practice, and (e)
furnish to Administrative Agent, upon written request, full information as to
the insurance carried.
5.7 Compliance with Laws, Instruments, Etc. Borrower shall, and shall
cause each Significant Subsidiary to, promptly comply, or cause compliance, with
all Governmental Rules (except where the failure to comply could not reasonably
be expected to have a Material Adverse Effect on Borrower) including
Governmental Rules relating to pollution control, environmental protection,
equal employment opportunity or employee benefit plans, ERISA Plans and employee
safety.
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5.8 No Change in Business. Borrower shall maintain a substantial part of
its business in the power industry and businesses reasonably related thereto and
Borrower shall cause each Significant Subsidiary to maintain as a substantial
part of its business the general type of business now conducted by such
Significant Subsidiary. Borrower shall not extend credit for the purpose of
purchasing or carrying margin stock (as defined in Regulations T, U or X of the
Federal Reserve Board).
5.9 Financial Statements. Unless Administrative Agent otherwise consents,
deliver or cause to be delivered to Administrative Agent, in form and detail
reasonably satisfactory to Administrative Agent:
5.9.1 As soon as practicable and in any event within 60 days after
the end of the first, second and third quarterly accounting periods of its
fiscal year, an unaudited consolidated balance sheet of Borrower and its
consolidated subsidiaries as of the last day of such quarterly period and the
related statements of income, cash flow, and partners' capital (where
applicable) for such quarterly period and (in the case of second and third
quarterly periods) for the portion of the fiscal year ending with the last day
of such quarterly period, setting forth in each case in comparative form
corresponding unaudited figures from the preceding fiscal year; and
5.9.2 As soon as practicable and in any event within 120 days after
the close of each applicable fiscal year, audited consolidated financial
statements of Borrower and its consolidated subsidiaries. Such financial
statements shall include a statement of equity, a balance sheet as of the close
of such year, an income and expense statement, reconciliation of capital
accounts (where applicable) and a statement of cash flow, all prepared in
accordance with GAAP, certified by an independent certified public accountant
selected by Borrower. Such certificate shall not be qualified or limited because
of restricted or limited examination by such accountant of any material portion
of the records of Borrower.
5.9.3 Each time the financial statements are delivered under
Sections 5.9.1 or 5.9.2, deliver, along with such financial statements, a
certificate signed by a Responsible Officer of Borrower (i) setting forth
reasonably detailed calculations demonstrating compliance with Section 5.11 and
including a schedule describing all Contingent Obligations of Borrower, and (ii)
certifying that (A) such Responsible Officer has made or caused to be made a
review of the transactions and financial condition of Borrower during the
relevant fiscal period and that, to such Responsible Officer's knowledge,
Borrower is in compliance with all applicable material provisions of each Credit
Facility Document to which Borrower is a party or, if such is not the case,
stating the nature of such non-compliance and the corrective actions which
Borrower has taken or proposes to take with respect thereto, and (B) such
financial statements are true and correct in all material respects and that no
material adverse change in the consolidated assets, liabilities, operations, or
financial condition of Borrower has occurred since the date of the immediately
preceding financial statements provided to Administrative Agent or, if a
material adverse change has occurred, the nature of such change.
5.9.4 As long as Borrower is required or permitted to file reports
under the Securities Exchange Act of 1934, as amended, a copy of its report on
Form 10-K shall satisfy the
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requirements of Section 5.9.1 and a copy of Borrower's report on Form 10-Q shall
satisfy the requirements of Section 5.9.2.
5.10 Notices. Borrower shall promptly, upon acquiring notice or giving
notice, as the case may be, or obtaining knowledge thereof, deliver written
notice to Administrative Agent of:
5.10.1 Any litigation pending or threatened in writing against
Borrower or any Significant Subsidiary involving claims against Borrower or such
Significant Subsidiary that could reasonably be expected to have a Material
Adverse Effect on Borrower, such notice to include copies of all papers filed in
such litigation and to be given monthly if any such papers have been filed since
the last notice given;
5.10.2 Any dispute or disputes which may exist between Borrower or
any Significant Subsidiary and any Governmental Authority and which involve (i)
claims against Borrower or such Significant Subsidiary that could reasonably be
expected to have a Material Adverse Effect on Borrower, (ii) injunctive or
declaratory relief that could reasonably be expected to have a Material Adverse
Effect on Borrower, (iii) revocation or material modification or the like of any
applicable material permit or imposition of additional material conditions with
respect thereto, or (iv) any liens for any material amount of taxes due but not
paid;
5.10.3 Any default under this Agreement or under any other agreement
with respect to any Indebtedness of Borrower outstanding in an amount equal to
or in excess of $50,000,000 or the acceleration of Indebtedness of Borrower for
borrowed money in an amount equal to or in excess of $10,000,000;
5.10.4 Borrower being placed on watch or review for possible rating
down-grade by S&P or Moody's;
5.10.5 Any negative change, from the date hereof, from the rating
given to Borrower's long-term senior unsecured debt by either S&P or Moody's;
and
5.10.6 Any event or circumstance which could reasonably be expected
to have a Material Adverse Effect on Borrower.
5.11 Financial Covenants. Borrower shall maintain, as of the last day of
each fiscal quarter, a ratio of Total Debt to Capitalization, for the fiscal
quarter then ended, of less than or equal to 0.65 to 1.00.
5.12 Indemnification.
5.12.1 Borrower shall indemnify, defend and hold harmless
Administrative Agent and each Lender, each of their Affiliates and their
respective officers, directors, shareholders, controlling persons, employees,
agents and servants (collectively, the "Indemnitees") from and against and
reimburse the Indemnitees for any and all penalties, claims, damages, losses,
liabilities and obligations, of any kind or nature whatsoever, that may be
imposed upon, incurred by or asserted or awarded against any Indemnitee in any
way relating to or arising out of or in connection with this Agreement, the
other Credit Facility Documents, or
32
any related claim or investigation, litigation or proceeding, or the preparation
of any defense with respect thereto, and will reimburse each Indemnitee for all
reasonable expenses (including all reasonable costs and expenses of a single
legal counsel, together with a single legal counsel in each applicable
jurisdiction, and all reasonable costs and expenses of multiple legal counsels
to the extent necessary in the event that (i) the circumstances giving rise to
such indemnification create an ethical conflict for such single counsel or (ii)
the Indemnitees have inconsistent or conflicting defenses) incurred in
connection with the investigation of, preparation for or defense of any pending
or threatened claim, investigation, litigation or proceeding, whether or not
such investigation, litigation or proceeding is brought by Borrower, or an
Indemnitee is otherwise a party thereto (but not in respect of any claim or
action brought by Borrower against any Indemnitee to enforce its rights
hereunder or under any other Credit Facility Document), and whether or not the
transactions contemplated by the Credit Facility Documents are consummated
(collectively, "Subject Claims").
5.12.2 The foregoing indemnities shall not apply with respect to an
Indemnitee, to the extent any such claim, penalty, damage, loss, liability,
obligation, cost, disbursement or expense incurred by or asserted or awarded
against such Indemnitee is found in a final, non-appealable judgment by a court
of competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnitee, but shall continue to apply to other Indemnitees.
Without limiting the generality of the foregoing, Borrower shall not be liable
for any special, indirect, consequential or punitive damages suffered by an
Indemnitee, including any loss of profits, business or anticipated savings of
such Indemnitee, other than any such damages or losses imposed upon or asserted
or awarded against any Indemnitee by a third party.
5.12.3 If for any reason the foregoing indemnification is
unavailable to any Indemnitee or is insufficient to hold it harmless, then
Borrower shall contribute to the amount paid or payable by such Indemnitee as a
result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect the relative economic interests of Borrower and its
equity holders on the one hand and such Indemnitee on the other hand in the
matters contemplated by this Agreement and the other Credit Facility Documents
as well as the relative fault of Borrower and such Indemnitee with respect to
such loss, claim, damage or liability and any other relevant equitable
considerations.
5.12.4 The provisions of this Section 5.12 shall survive the
satisfaction or discharge of Borrower's obligations hereunder, and shall be in
addition to any other rights and remedies of the Lenders.
5.12.5 In case any action, suit or proceeding shall be brought
against any Indemnitee, such Indemnitee shall promptly notify Borrower of the
commencement thereof, and Borrower shall be entitled, at its expense, acting
through counsel reasonably acceptable to such Indemnitee, to participate in,
and, to the extent that Borrower desires, to assume and control the defense
thereof. Such Indemnitee shall be entitled, at its expense, to participate in
any action, suit or proceeding the defense of which has been assumed by
Borrower. Notwithstanding the foregoing, Borrower shall not be entitled to
assume and control the defense of any such action, suit or proceedings if and to
the extent that, in the reasonable opinion of such Indemnitee and its counsel,
such action, suit or proceeding involves the potential imposition of criminal
liability upon such Indemnitee or a conflict of interest between such Indemnitee
and Borrower (unless
33
such conflict of interest is waived in writing by the affected Indemnitees), and
in such event (other than with respect to disputes between such Indemnitee and
another Indemnitee) Borrower shall pay the reasonable expenses of such
Indemnitee in such defense to the extent provided in Sections 5.12.1 and 5.12.2.
5.12.6 Borrower shall promptly report to the relevant Indemnitee(s)
on the status of such action, suit or proceeding the defense of which is assumed
by Borrower in accordance with Section 5.12.5, as material developments shall
occur and from time to time as requested by such Indemnitee (but not more
frequently than every 60 days). Borrower shall deliver to such Indemnitee a copy
of each document filed or served on any party in such action, suit or
proceeding, and each material document which Borrower possesses relating to such
action, suit or proceeding.
5.12.7 Notwithstanding Borrower's rights hereunder to control
certain actions, suits or proceedings, if any Indemnitee reasonably determines
that failure to compromise or settle any Subject Claim made against such
Indemnitee is reasonably likely to have an imminent and material adverse effect
on such Indemnitee or such Indemnitee's interest in Borrower, such Indemnitee
shall be entitled to compromise or settle such Subject Claim; provided that such
Indemnitee consults with and coordinates such compromise or settlement with
Borrower (although no prior consent by Borrower to any such compromise or
settlement shall be required); and provided further that with respect to any
Indemnitee other than a Lender, such right may be exercised only with the
consent of the Lender or Lenders which such Indemnitee is affiliated with or
engaged by. Any such compromise or settlement shall be binding upon Borrower for
the purposes of this Section 5.12. Notwithstanding Borrower's rights hereunder,
Borrower shall not be entitled to settle any Subject Claim of an Indemnitee
without the prior written consent of such Indemnitee or a full release of such
Indemnitee, in form and substance satisfactory to such Indemnitee. Upon payment
of any Subject Claim by Borrower pursuant to this Section 5.12 or other similar
indemnity provisions contained herein to or on behalf of an Indemnitee,
Borrower, without any further action, shall be subrogated to any and all claims
that such Indemnitee may have relating thereto, and such Indemnitee shall
cooperate with Borrower and Borrower's insurance carrier, and give such further
assurances as are necessary or advisable to enable Borrower vigorously to pursue
such claims.
5.12.8 Any amounts payable by Borrower pursuant to this Section 5.12
shall be regularly payable within 30 days after Borrower receives an invoice for
such amounts from any applicable Indemnitee, and if not paid within such 30-day
period shall bear interest at the Default Rate.
5.12.9 Notwithstanding anything to the contrary set forth herein,
except as provided in Section 5.12.1 or 5.12.5, Borrower shall not, in
connection with any one legal proceeding or claim, or separate but related
proceedings or claims arising out of the same general allegations or
circumstances, in which the interests of the Indemnitees do not materially
differ, be liable to the Indemnitees (or any of them) under any of the
provisions set forth in this Section 5.12 for the fees and expenses of more than
one separate firm of attorneys (which firm shall be selected by the affected
Indemnitees, or upon failure to so select, by Administrative Agent).
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ARTICLE VI.
EVENTS OF DEFAULT; REMEDIES
6.1 Events of Default. The occurrence of any of the following events shall
constitute an event of default ("Event of Default") hereunder:
6.1.1 Payments. Borrower shall fail to pay, in accordance with the
terms of this Agreement, (i) any Reimbursement Obligation or principal on any
Loan on the date such sum is due, (ii) any interest on any Loan or any scheduled
fee, cost, charge or sum due hereunder or under any other Credit Facility
Document, within three Banking Days after the date that such sum is due, or
(iii) any other fee, cost, charge or other sum due under this Agreement or any
other Credit Facility Document, within 30 days after written notice that such
sum is due and has not been paid.
6.1.2 Debt Cross Default. (i) Borrower or any Significant Subsidiary
shall default for a period beyond any applicable grace period in the payment of
any principal, interest or other amount due under any agreement involving the
borrowing of money or the advance of credit (other than trade payables or
non-recourse indebtedness) and the outstanding amount or amounts payable under
all such agreements equals or exceeds $50,000,000 or (ii) an event of default
shall have occurred and be continuing under an agreement, or related agreements,
under which Borrower or any Significant Subsidiary has outstanding indebtedness
for borrowed money (other than non-recourse indebtedness) of $10,000,000 or more
and, in the case of this clause (ii), such debt has been accelerated by the
holder of such debt, or the holder of such debt has attempted to accelerate but
such acceleration was prevented by applicable Governmental Rule.
6.1.3 Bankruptcy; Insolvency. Borrower or any Significant Subsidiary
shall become subject to a Bankruptcy Event.
6.1.4 Misstatements; Omissions. Any representation or warranty of
Borrower set forth in this Agreement or any other Credit Facility Document shall
be untrue or misleading in any material respect as of the time made and such
untrue or misleading representation or warranty (i) is having or could
reasonably be expected to result in a Material Adverse Effect on Borrower and
(ii) shall remain unremedied by Borrower for a period of 30 days after the
earlier of the date that Borrower becomes aware thereof or receives written
notice thereof from Administrative Agent.
6.1.5 Breach of Terms of Agreement. Borrower shall fail to perform
or observe any of the covenants set forth in this Agreement and (except with
respect to any covenants set forth in Section 5.1 (with respect to its
obligation to maintain its existence), 5.3, 5.8 or 5.11) such failure shall
continue unremedied for 30 days after Borrower becomes aware thereof or receives
written notice with respect thereto from Administrative Agent.
6.1.6 Judgments. A final judgment or judgments shall be entered
against Borrower or any Significant Subsidiary in the amount of $50,000,000 or
more (net of amounts covered by insurance) individually or in the aggregate
(other than (i) a judgment which is fully discharged within 30 days after its
entry, or (ii) a judgment, the execution of which is effectively stayed within
30 days after its entry but only for 30 days after the date on which such stay
is
35
terminated or expires) or, in the case of injunctive relief, which if left
unstayed could reasonably be expected to have a Material Adverse Effect on
Borrower.
6.1.7 Change in Control. Without the consent of the Majority
Lenders, (i) any entity, person (within the meaning of Section 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) that
theretofore was beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) of less than 30% of the Borrower's voting stock shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act),
directly or indirectly, of voting stock of the Borrower (or other securities
convertible into such voting stock) representing 30 % or more of the combined
voting power of all voting stock of the Borrower; or (ii) during any period of
up to 24 consecutive months, commencing after the date hereof, individuals who
at the beginning of such 24-month period were directors of the Borrower shall
cease for any reason to constitute a majority of the board of directors of the
Borrower, provided that any person becoming a director subsequent to the date
hereof, whose election, or nomination for election by the Borrower's
shareholders, was approved by a vote of at least a majority of the directors who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved (other than the election or
nomination of an individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the election of the
directors of the Borrower) shall be, for purposes of this provision, considered
as though such person were a member of the board as of the beginning of such
period.
6.1.8 ERISA Violations. If Borrower or any ERISA Affiliate should
establish, maintain, contribute to or become obligated to contribute to any
ERISA Plan and (a) a Reportable Event shall have occurred with respect to any
ERISA Plan; or (b) a trustee shall be appointed by a United States District
Court to administer any ERISA Plan; or (c) the PBGC shall institute proceedings
to terminate any ERISA Plan; or (d) a complete or partial withdrawal by Borrower
or any ERISA Affiliate from any Multiemployer Plan shall have occurred, or any
Multiemployer Plan shall enter reorganization status, become insolvent, or
terminate (or notify Borrower or any ERISA Affiliate of its intent to terminate)
under Section 4041A of ERISA; or (e) any ERISA Plan experiences an accumulated
funding deficiency under Code Section 412(b); or (e) Borrower or any ERISA
Affiliate incurs any liability for a Prohibited Transaction under ERISA Section
502; provided that any of the events described in this Section 6.1.8 shall
result in joint liability to Borrower and all ERISA Affiliates in excess of
$5,000,000.
6.1.9 Security. Any of the Credit Facility Documents, once executed
and delivered, shall, except as the result of acts or omissions of
Administrative Agent or the Lenders, fail to provide Administrative Agent and
the Lenders the liens, security interest, rights, titles, interest, remedies
permitted by law, powers or privileges intended to be created thereby or cease
to be in full force and effect (except as expressly contemplated by the terms
thereof), or the validity thereof or the applicability thereof to the Loans or
other obligations purported to be secured or guaranteed thereby or any part
thereof shall be disaffirmed by or on behalf of Borrower or any other party
thereto (other than Administrative Agent or the Lenders).
6.2 Remedies. Upon the occurrence and during the continuation of an Event
of Default, Administrative Agent and the Lenders may, at the election of the
Required Lenders, without further notice of default, presentment or demand for
payment, protest or notice of
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nonpayment or dishonor, or other notices or demands of any kind, all such
notices and demands other than notices required by this Agreement or any of the
other Credit Facility Documents being waived (to the extent permitted by
Governmental Rule), exercise any or all of the following rights and remedies, in
any combination or order that the Required Lenders may elect, in addition to
such other rights or remedies as the Lenders may have hereunder, under the other
Credit Facility Documents or at law or in equity.
6.2.1 No Further Loans. Refuse, and Administrative Agent and the
Lenders shall not be obligated, to continue any Loans or to make any additional
Loans under either Facility and the LC Issuing Bank shall not be obligated to
issue, extend or increase the Stated Amount of any Letter of Credit; provided
that in the event of an Event of Default occurring under Section 6.1.3 of this
Agreement with respect to Borrower, the foregoing shall take effect immediately
and without further act of Administrative Agent or the Lenders.
6.2.2 Cure by Administrative Agent. Without any obligation to do so
but only during any time when a Loan, Letter of Credit or Reimbursement
Obligation is outstanding, or any other amounts are due and owing hereunder to
Administrative Agent, LC Issuing Bank or the Lenders, Administrative Agent may
make disbursements or Loans under either Facility in respect of which any
amounts are outstanding to or on behalf of Borrower to cure any Event of Default
or Inchoate Default hereunder as the Required Lenders in their sole discretion
may consider necessary or appropriate, whether to preserve and protect the
Lenders' interests under this Agreement or any Credit Facility Documents or for
any other reason, and all sums so expended, together with interest on such total
amount at the Default Rate (but in no event shall the rate exceed the maximum
lawful rate, if applicable), shall be repaid by Borrower to Administrative Agent
on demand and shall be secured by this Agreement and the other Credit Facility
Documents and shall constitute an Obligation, notwithstanding (i) that such
expenditures may, together with amounts advanced under this Agreement, exceed
the amount of the Total Commitment or (ii) that such expenditures may, together
with amounts advanced under this Agreement with respect to a Facility, exceed
the portion of the Total Commitment applicable to such Facility.
6.2.3 Acceleration. Declare and make all sums of accrued and
outstanding principal and accrued but unpaid interest remaining under this
Agreement together with all unpaid fees, costs (including Liquidation Costs) and
charges due hereunder or under any other Credit Facility Document, immediately
due and payable and require Borrower immediately, without presentment, demand,
protest or other notice of any kind, all of which Borrower hereby expressly
waives, to pay Administrative Agent or the Lenders an amount in immediately
available funds equal to the aggregate amount of any outstanding Loans under
both Facilities; provided that in the event of an Event of Default occurring
under Section 6.1.3 of this Agreement with respect to Borrower, all such amounts
shall become immediately due and payable without further act of Administrative
Agent or the Lenders.
6.2.4 Cash Collateralization of Letters of Credit. Demand from the
Borrower payment in an amount equal to the Aggregate LC Stated Amount to be used
as security for any Reimbursement Obligations which may arise in accordance with
Section 2.2.6(b).
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ARTICLE VII.
ADMINISTRATIVE AGENT, SUBSTITUTION, AMENDMENTS, ETC.
7.1 Appointment, Powers and Immunities.
7.1.1 Each Lender hereby appoints and authorizes Administrative
Agent to act as its agent hereunder and under the other Credit Facility
Documents with such powers as are expressly delegated to Administrative Agent by
the terms of this Agreement and the other Credit Facility Documents, together
with such other powers as are reasonably incidental thereto. Administrative
Agent shall not have any duties or responsibilities except those expressly set
forth in this Agreement or in any other Credit Facility Document, or be a
trustee for any Lender. Notwithstanding anything to the contrary contained
herein, Administrative Agent shall not be required to take any action which is
contrary to this Agreement or any other Credit Facility Document or any
Governmental Rule or exposes Administrative Agent to any liability. Each of
Administrative Agent, the Lenders and any of their respective Affiliates shall
not be responsible to any other Lender for any recitals, statements,
representations or warranties made by Borrower or its Affiliates contained in
this Agreement or in any certificate or other document referred to or provided
for in, or received by Administrative Agent, or any Lender under this Agreement,
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement, the Notes or any other document referred to or
provided for herein or for any failure by Borrower, its respective Affiliates to
perform their respective obligations hereunder or thereunder. Administrative
Agent may employ agents and attorneys in fact and shall not be responsible for
the negligence or misconduct of any such agents or attorneys in fact selected by
it with reasonable care.
7.1.2 Administrative Agent and its directors, officers, employees or
agents shall not be responsible for any action taken or omitted to be taken by
it or them hereunder or under any other Credit Facility Document or in
connection herewith or therewith, except for its or their own gross negligence
or willful misconduct. Without limiting the generality of the foregoing,
Administrative Agent (a) may treat the payee of any Note as the holder thereof
until Administrative Agent receives written notice of the assignment or transfer
thereof signed by such payee and in form satisfactory to Administrative Agent;
(b) may consult with legal counsel (including counsel for 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 them in accordance with
the advice of such counsel, accountants or experts; (c) makes no warranty or
representation to any Lender for any statements, warranties or representations
made in or in connection with any Credit Facility 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 any Credit Facility Document on the
part of any party thereto or to inspect the property (including the books and
records) of Borrower or any other Person; and (e) shall not be responsible to
any Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of any Credit Facility Document or any other
instrument or document furnished pursuant hereto. Except as otherwise provided
under this Agreement and the other Credit Facility Documents, Administrative
Agent shall take such action with respect to the Credit Facility Documents as
shall be directed by the Majority Lenders or Required Lenders, as the case may
be.
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7.2 Reliance. Administrative Agent shall be entitled to rely upon any
certificate, notice or other document (including any cable, telegram, telecopy
or telex) believed by it to be genuine and correct and to have been signed or
sent by or on behalf of the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants and other experts selected
by Administrative Agent. As to any other matters not expressly provided for by
this Agreement, Administrative Agent shall not be required to take any action or
exercise any discretion, but shall be required to act or to refrain from acting
upon instructions of the Majority Lenders or Required Lenders, as the case may
be, (except that Administrative Agent shall not be required to take any action
which exposes Administrative Agent to personal liability or which is contrary to
this Agreement, any other Credit Facility Document or any Governmental Rule).
Administrative Agent shall in all cases (including when any action by
Administrative Agent alone is authorized hereunder, if Administrative Agent
elects in its sole discretion to obtain instructions from the Majority Lenders
or Required Lenders, as the case may be) be fully protected in acting, or in
refraining from acting, hereunder or under any other Credit Facility Document in
accordance with the instructions of the Majority Lenders or the Required
Lenders, as the case may be, and such instructions of the Majority Lenders or
the Required Lenders, as the case may be, and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders.
7.3 Non-Reliance. Each Lender represents that it has, independently and
without reliance on Administrative Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of the financial condition and affairs of Borrower and decision to enter into
this Agreement and agrees that it will, independently and without reliance upon
Administrative 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
appraisals and decisions in taking or not taking action under this Agreement.
Each of Administrative Agent and any Lender shall not be required to keep
informed as to the performance or observance by Borrower or its Affiliates under
this Agreement or any other document referred to or provided for herein or to
make inquiry of, or to inspect the properties or books of Borrower or its
Affiliates.
7.4 Defaults. Administrative Agent shall not be deemed to have knowledge
or notice of the occurrence of any Inchoate Default or Event of Default, unless
such default relates to the payment of principal, interest and fees required to
be paid to the Administrative Agent for the account of the Lenders, or
Administrative Agent has received a notice from a Lender or Borrower, referring
to this Agreement, describing such Inchoate Default or, Event of Default and
indicating that such notice is a notice of default. If Administrative Agent
receives such a notice of the occurrence of an Inchoate Default or Event of
Default, Administrative Agent shall give notice thereof to the Lenders.
Administrative Agent shall take such action with respect to such Inchoate
Default or Event of Default as is provided in Article VI or if not provided for
in Article VI, as Administrative Agent shall be reasonably directed by the
Required Lenders; provided, however, unless and until Administrative Agent shall
have received such directions, Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Inchoate Default or Event of Default as it shall deem advisable in the
best interest of the Lenders.
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7.5 Indemnification. Without limiting the Obligations of Borrower
hereunder, each Lender agrees to indemnify Administrative Agent, ratably in
accordance with its Proportionate Share for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may at any time
be imposed on, incurred by or asserted against Administrative Agent in any way
relating to or arising out of this Agreement or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or the enforcement of any of the terms hereof or thereof or of any such other
documents; provided, however, that no Lender shall be liable for any of the
foregoing to the extent they arise from Administrative Agent's gross negligence
or willful misconduct. Administrative Agent shall be fully justified in refusing
to take or to continue to take any action hereunder or under any other Credit
Facility Document unless it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. Without limitation
of the foregoing, each Lender agrees to reimburse Administrative Agent promptly
upon demand for its Proportionate Share of any out-of-pocket expenses (including
counsel fees) incurred by Administrative Agent in connection with the
preparation, execution, administration or enforcement of, or legal advice in
respect of rights or responsibilities under, the Credit Facility Documents, to
the extent that Administrative Agent is not reimbursed for such expenses by
Borrower. Notwithstanding the foregoing, Administrative Agent shall not be
entitled to indemnification or reimbursement of its expenses under this Section
7.5 if it would not be entitled to indemnification or reimbursement under
Sections 5.12 and 8.4, respectively.
7.6 Successor Administrative Agent. Administrative Agent may resign
hereunder and under the Tampa Electric Credit Agreement at any time by giving
written notice thereof to the Lenders, Borrower and Tampa Electric, provided,
however, that Administrative Agent may only resign hereunder if Administrative
Agent, in its capacity as Tampa Electric Credit Facility Administrative Agent,
also resigns under the Tampa Electric Credit Agreement. Administrative Agent may
be removed involuntarily only for a material breach of its duties and
obligations hereunder, under the other Credit Facility Documents, under the
Tampa Electric Credit Agreement or under the other Tampa Electric Credit
Facility Documents or for gross negligence or willful misconduct in connection
with the performance of its duties hereunder, under the Tampa Electric Credit
Agreement, under the other Credit Facility Documents or under the other Tampa
Electric Credit Facility Documents and then only upon the affirmative vote of
the Majority Lenders and the affirmative vote of the Tampa Electric Credit
Facility Majority Lenders under Section 7.6 of the Tampa Electric Credit
Agreement (excluding Administrative Agent and Tampa Electric Credit Facility
Administrative Agent from such votes and Administrative Agent's Proportional
Share of the Total Commitment and Tampa Electric Credit Facility Administrative
Agent's Proportional Share of the Tampa Electric Total Commitment from the
amounts used to determine the portion of the Total Commitment and the Tampa
Electric Total Commitment necessary to constitute the required Proportionate
Shares of the remaining Lenders and Tampa Electric Credit Facility Lenders).
Upon any such resignation or removal, the Majority Lenders together with the
Tampa Electric Credit Facility Majority Lenders pursuant to Section 7.6 of the
Tampa Electric Credit Agreement shall have the right to appoint the same
successor Administrative Agent and Tampa Electric Credit Facility Administrative
Agent hereunder and under the Tampa Electric Credit Agreement with the consent
of Borrower and Tampa Electric, which consent shall not be unreasonably withheld
or delayed; provided that Borrower's consent shall not be required if an Event
of Default shall have occurred and be
40
continuing at such time hereunder and Tampa Electric's consent shall not be
required if an Event of Default shall have occurred and be continuing under the
Tampa Electric Credit Agreement. If no successor Administrative Agent and Tampa
Electric Credit Facility Administrative Agent shall have been so appointed by
the Majority Lenders and the Tampa Electric Credit Facility Majority Lenders and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the Lenders' removal
of the retiring Administrative Agent, the retiring Administrative Agent may, on
behalf of the Lenders with the consent of Borrower and Tampa Electric (such
consent not to be unreasonably withheld or delayed) appoint the same successor
Administrative Agent and Tampa Electric Credit Facility Administrative Agent
hereunder and under the Tampa Electric Credit Agreement which shall be a Lender,
if any Lender shall be willing to serve, and otherwise shall be a commercial
bank having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Administrative Agent and Tampa Electric Credit
Facility Administrative Agent hereunder and under the Tampa Electric Credit
Facility Documents by a successor Administrative Agent and Tampa Electric Credit
Facility Administrative Agent, such successor Administrative Agent and Tampa
Electric Credit Facility Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent and Tampa Electric Credit Facility Administrative Agent,
and the retiring Administrative Agent and Tampa Electric Credit Facility
Administrative Agent shall be discharged from its duties and obligations as
Administrative Agent and Tampa Electric Credit Facility Administrative Agent
only under the Credit Facility Documents and the Tampa Electric Credit Facility
Documents. After any retiring Administrative Agent's and Tampa Electric Credit
Facility Administrative Agent's resignation or removal hereunder as
Administrative Agent and Tampa Electric Credit Facility Administrative Agent,
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent and Tampa
Electric Credit Facility Administrative Agent under the Credit Facility
Documents and the Tampa Electric Credit Facility Documents.
7.7 Authorization. Administrative Agent is hereby authorized by the
Lenders to execute, deliver and perform each of the Credit Facility Documents to
which Administrative Agent is or is intended to be a party and each Lender
agrees to be bound by all of the agreements of Administrative Agent contained in
the Credit Facility Documents. Administrative Agent is further authorized by the
Lenders to enter into agreements supplemental hereto for the purpose of curing
any formal defect, inconsistency, omission or ambiguity in this Agreement or any
Credit Facility Document to which it is a party.
7.8 Administrative Agent's Other Roles. With respect to its Commitments,
the Loans made by it and any Notes issued to it, Administrative Agent shall have
the same rights and powers hereunder as any other Lender and may exercise the
same as though it were not Administrative Agent. The term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include Administrative Agent in its
individual capacity. Administrative Agent 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 Borrower or any other Person, without any duty to
account therefor to the Lenders. For the avoidance of doubt, Administrative
Agent may act as Tampa Electric Credit Facility Administrative Agent
notwithstanding any potential or actual conflict of interest presented by the
foregoing and Borrower and each of the Lenders hereby waives any claim against
Administrative Agent or any of its affiliates based upon any conflict of
41
interest that Administrative Agent may have with regard to acting as
Administrative Agent hereunder and acting in such other role.
7.9 Amendments; Waivers. Subject to the provisions of this Section 7.9,
unless otherwise specified in this Agreement or another Credit Facility
Document, the Majority Lenders (or Administrative Agent with the consent in
writing of the Majority Lenders) and Borrower may enter into agreements
supplemental hereto for the purpose of adding, modifying or waiving any
provisions to the Credit Facility Documents or changing in any manner the rights
of the Lenders or Borrower hereunder or waiving any Inchoate Default or Event of
Default; provided, however, that:
7.9.1 no such supplemental agreement shall, without the consent of
all of the Lenders:
(a) Modify Section 2.1.5, 2.5.1, 2.5.2, 2.5.3, 2.6, 2.7,
2.8, 3.1 7.1, 7.13, or 7.14; or
(b) Reduce the percentage specified in the definition of
Majority Lenders or Required Lenders; or
(d) Permit Borrower to assign its rights under this
Agreement, or
(e) Amend this Section 7.9 or amend any defined term set
forth herein, in any Credit Facility Document or in
Exhibit A, to the extent such amendment would have the
effect of violating the effect of the provisions of this
Section 7.9; or
(f) Release any collateral from a lien securing the
Obligations of Borrower hereunder or release any funds
from any account otherwise than in accordance with the
terms hereof.
7.9.2 with respect to any Facility, any of the following amendments
shall require the consent of all of the Lenders under such Facility (and none of
the Lenders under the other Facility):
(a) Extend the maturity of any Loans or Reimbursement
Obligations (including any extension of the Commitment
Termination Date or the Maturity Date of such Facility)
or any Notes or reduce the principal amount thereof; or
(b) Reduce the rate or change the time of payment of
interest due on any Loan or any Note; or
(c) Reduce the amount or change the time of payment of
any fee or other amount due or payable under such
Facility; or
42
(d) Increase the amount of the Commitment of any Lender
under such Facility.
7.10 Withholding Tax.
7.10.1 If the forms or other documentation required by Section 2.5.7
are not delivered to Administrative Agent, then Administrative Agent may
withhold from any interest payment to any Lender not providing such forms or
other documentation, an amount equivalent to the applicable withholding tax.
7.10.2 If the Internal Revenue Service or any authority of the
United States or other jurisdiction asserts a claim that Administrative Agent
did not properly withhold tax from amounts paid to or for the account of any
Lender (because the appropriate form was not delivered, was not properly
executed, or because such Lender failed to notify Administrative Agent of a
change in circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason) such Lender shall
indemnify Administrative Agent fully for all amounts paid, directly or
indirectly, by Administrative Agent as tax or otherwise, including penalties and
interest, together with all expenses incurred, including legal expenses,
allocated staff costs, and any out of pocket expenses. Borrower shall not be
responsible for any amounts paid or required to be paid by a Lender under this
Section 7.10.2.
7.10.3 If any Lender sells, assigns, grants participations in, or
otherwise transfers its rights under this Agreement, the purchaser, assignee,
transferee or participant shall comply with and be bound by the terms of
Sections 2.5.7, 7.10.1 and 7.10.2 as though it were such Lender.
7.11 General Provisions as to Payments. Administrative Agent shall
promptly distribute to each Lender its pro rata share of each payment of
principal and interest payable to the Lenders on the Loans and of fees hereunder
received by Administrative Agent for the account of the Lenders and of any other
amounts owing under the Loans. The payments made for the account of each Lender
shall be made, and distributed to it, for the account of (a) its domestic
lending office in the case of payments of principal of, and interest on, its
Base Rate Loans, (b) its domestic or foreign lending office, as each Lender may
designate in writing to Administrative Agent, in the case of payments of
principal of, and interest on, its LIBOR Loans and (c) its domestic lending
office, or such other lending office as it may designate for the purpose from
time to time, in the case of payments of fees and other amounts payable
hereunder. Each Lender shall have the right to alter its designated domestic
lending office upon notice to Administrative Agent and Borrower.
7.12 Substitution of Lender. Should any Lender fail to make a Loan in
violation of its obligations under this Agreement (a "Non-Advancing Lender"),
Administrative Agent shall (a) in its sole discretion fund the Loan on behalf of
the Non-Advancing Lender (b) cooperate with Borrower or any other Lender to find
another Person that shall be acceptable to Administrative Agent and Borrower
(unless an Event of Default shall have occurred and is continuing) and that
shall be willing to assume the Non-Advancing Lender's obligations under this
Agreement (including the obligation to make the Loan which the Non-Advancing
Lender failed to make but without assuming any liability for damages for failing
to have made such
43
Loan or any previously required Loan). Subject to the provisions of the next
following sentence, such Person shall be substituted for the Non-Advancing
Lender hereunder upon the payment by such Person of all interest and fees owed
to the Non-Advancing Lender and execution and delivery to Administrative Agent
of an agreement acceptable to Administrative Agent and Borrower by such Person
assuming the Non-Advancing Lender's obligations under this Agreement, and all
interest and fees which would otherwise have been payable to the Non-Advancing
Lender shall thereafter be payable to such Person. Nothing in (and no action
taken pursuant to) this Section 7.12 shall relieve the Non-Advancing Lender from
any liability it might have to Borrower or to the other Lenders as a result of
its failure to make any Loan.
7.13 Participations.
7.13.1 Nothing herein provided shall prevent any Lender from selling
a participation in its Commitments (and/or Loans made thereunder); provided that
(a) no such sale of a participation shall alter such Lender's or Borrower's
obligations hereunder and (b) any agreement pursuant to which any Lender may
grant a participation in its rights with respect to its Commitments (and/or
Loans) shall provide that, with respect to such Commitments (and/or Loans),
subject to the following proviso, such Lender shall retain the sole right and
responsibility to exercise the rights of such Lender, and enforce the
obligations of Borrower relating to such Commitments (and/or Loans), including
the right to approve any amendment, modification or waiver of any provision of
this Agreement or any other Credit Facility Document and the right to take
action to have the Notes declared due and payable pursuant to Article VI;
provided, however, that such agreement may provide that the participant may have
rights to approve or disapprove decreases in principal, interest rates or fees,
lengthening of maturity of any Loans, postponements of any due dates for
payments hereunder. No recipient of a participation in any Commitments or Loans
of any Lender shall have any rights under this Agreement or shall be entitled to
any reimbursement for taxes, other taxes, increased costs or reserve
requirements under Section 2.7.3 or any other indemnity or payment rights
against Borrower in excess of a proportionate amount which would have been
payable to the Lender from whom such Person acquired its participation.
7.13.2 Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose funding vehicle
(a "SPC"), identified as such in writing from time to time by the Granting
Lender to Administrative Agent and Borrower, the option to provide to Borrower
all or any part of any Loan that such Granting Lender would otherwise be
obligated to make to Borrower pursuant to this Agreement; provided that (a)
nothing herein shall constitute a commitment by any SPC to make any Loan, and
(b) if an SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof. The making of an Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Loan were made by such Granting Lender. Each party
hereto hereby agrees that no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of any SPC, it
will not institute against, or join any other person in instituting against,
such SPC any bankruptcy, reorganization,
44
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any state thereof. In addition, notwithstanding anything to the
contrary contained in this Section 7.13, any SPC may (x) with notice to, but
without the prior written consent of, Borrower and Administrative Agent and
without paying any processing fee therefor, assign all or a portion of its
interests in any Loans to the Granting Lender or to any financial institutions
(consented to by Borrower and Administrative Agent) providing liquidity and/or
credit support to or for the account of such SPC to support the funding or
maintenance of Loans and (y) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider of any surety, guarantee or credit or liquidity enhancement to such
SPC. This section may not be amended without the written consent of all SPCs
having outstanding Loans or Commitments hereunder.
7.14 Transfer of Commitments. Notwithstanding anything else herein to the
contrary (but subject to Section 7.13.2), any Lender, after receiving
Administrative Agent's prior written consent (which consent shall not be
unreasonably withheld or delayed) and unless an Event of Default shall have
occurred and is continuing, the prior written consent of Borrower (which consent
shall not be unreasonably withheld or delayed) may, from time to time, at its
option, sell, assign, transfer, negotiate or otherwise dispose of a portion of
its Commitment under either Facility (and Loans made thereunder), in the minimum
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof, to
any institution which in such assigning Lender's judgment is reasonably capable
of performing the obligations of a Lender hereunder and reasonably experienced
in corporate financing; provided, however, that in the case of an assignment by
a Lender to another Lender or Affiliate of a Lender, the prior consent of
Administrative Agent and Borrower shall not be required and the minimum
assignment amount specified above shall not apply as long as the assigning
Lender continues to hold a Commitment of no less than $5,000,000 under the
applicable Facility. In the event of any assignment made pursuant to this
Section 7.14, (a) the assigning Lender's Proportionate Share shall be reduced by
the amount of the Proportionate Share assigned to the new Lender, (b) the
parties to such assignment shall execute and deliver an appropriate agreement
evidencing such sale, assignment, transfer or other disposition, in form and
substance reasonably satisfactory to Administrative Agent and Borrower, (c) the
parties to the sale, assignment, transfer or other disposition, excluding
Borrower, shall collectively pay to Administrative Agent an administrative fee
of $3,500 and (d) at the assigning Lender's option, Borrower shall execute and
deliver to such new Lender Notes in the forms attached hereto as Exhibit B, in a
principal amount equal to its Proportionate Share but only if it shall also be
executing or exchanging with the assigning Lender a replacement note for any
Note in an amount equal to the Proportionate Share retained by the Lender, if
any (provided that Borrower shall have received for cancellation the existing
Note held by the assigning Lender). Thereafter, such new Lender shall be deemed
to be a Lender and shall have all of the rights and duties of a Lender (except
as otherwise provided in this Article VII), in accordance with its Proportionate
Share, under each of the Credit Facility Documents.
7.15 Laws. Notwithstanding the foregoing provisions of this Article VII,
no sale, assignment, transfer, negotiation or other disposition of the interests
of any Lender hereunder or under the other Credit Facility Documents shall be
allowed if it would require registration under the federal Securities Act of
1933, as then amended, any other federal securities laws or regulations or the
securities laws or regulations of any applicable jurisdiction. Borrower shall,
45
from time to time at the request and expense of Administrative Agent, execute
and deliver to Administrative Agent, or to such party or parties as
Administrative Agent may designate, any and all further instruments as may in
the reasonable opinion of Administrative Agent be necessary or advisable on the
part of Borrower to give full force and effect to such disposition.
7.16 Assignability as Collateral. Notwithstanding any other provision
contained in this Agreement or any other Credit Facility Document to the
contrary, any Lender may assign all or any portion of the Loans or Notes held by
it as collateral security provided that any payment in respect of such assigned
Loans or Notes made by Borrower to or for the account of the assigning and/or
pledging Lender in accordance with the terms of this Agreement shall satisfy
Borrower's obligations hereunder in respect to such assigned Loans or Notes to
the extent of such payment. No such assignment shall release the assigning
Lender from its obligations hereunder.
ARTICLE VIII.
MISCELLANEOUS
8.1 Addresses. Any communications between the parties hereto or notices
provided herein to be given shall be given to the following addresses:
If to Administrative Agent: Citibank, N.A.
388 Greenwich Street
20th Floor
New York, NY 10013
Attention: Lorraine Frankel
Tel: (212) 816-0988
Fax: (212) 816-0584
With a copy to: Citibank, N.A.
2 Penns Way, Suite 2000
New Castle, Delaware 19720
Attention: Janet Wallace
Tel: (302) 894-6029
Fax: (302) 894-6120
If to Borrower: TECO Energy, Inc.
702 North Franklin Street
Tampa, FL 33602
Attention: Corporate Secretary
Telephone No.: (813) 228-1808
Telecopy No.: (813) 228-1328
If to Lenders: To the address specified on Schedule 1A or 1B, as
applicable.
46
All notices or other communications required or permitted to be given
hereunder shall be in writing and shall be considered as properly given (a) if
delivered in person, (b) if sent by overnight delivery service (including
Federal Express, ETA, Emery, DHL, AirBorne and other similar overnight delivery
services), (c) if mailed by first class United States Mail, postage prepaid,
registered or certified with return receipt requested or (d) if sent by
facsimile. Notice so given shall be effective upon receipt by the addressee,
except that communication or notice so transmitted by telecopy or other direct
written electronic means shall be deemed to have been validly and effectively
given on the day (if a Banking Day and, if not, on the next following Banking
Day) on which it is transmitted if transmitted before 4:00 p.m., recipient's
time, and if transmitted after that time, on the next following Banking Day;
provided, however, that if any notice is tendered to an addressee and the
delivery thereof is refused by such addressee, such notice shall be effective
upon such tender. Any party shall have the right to change its address for
notice hereunder to any other location within the continental United States by
giving of 30 days' notice to the other parties in the manner set forth above;
provided, however, that a Lender shall have the right to change its address for
notice hereunder by giving notice to Administrative Agent and Borrower only.
8.2 Additional Security; Right to Set-Off. Any deposits or other sums at
any time credited or due from the Lenders and any securities or other property
of Borrower in the possession of Administrative Agent may at all times be
treated as collateral security for the payment of the Loans and any Notes and
all other obligations of Borrower to the Lenders under this Agreement and the
other Credit Facility Documents, and Borrower hereby pledges to Administrative
Agent for the benefit of the Lenders and grants Administrative Agent a security
interest in and to all such deposits, sums, securities or other property.
Regardless of the adequacy of any other collateral, Administrative Agent may
execute or realize on the Lenders security interest in any such deposits or
other sums credited by or due from the Lenders to Borrower, and may apply any
such deposits or other sums to or set them off against Borrower's obligations to
the Lenders under any Notes and this Agreement at any time after the occurrence
and during the continuance of any Event of Default.
8.3 Delay and Waiver. No delay or omission to exercise any right, power or
remedy accruing to the Lenders upon the occurrence of any Event of Default,
Inchoate Default or any breach or default of Borrower under this Agreement or
any other Credit Facility Document shall impair any such right, power or remedy
of the Lenders, nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring, nor shall any waiver of any single Event of Default,
Inchoate Default or other breach or default be deemed a waiver of any other
Event of Default, Inchoate Default or other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of Administrative Agent and/or the Lenders of any Event of
Default, Inchoate Default or other breach or default under this Agreement or any
other Credit Facility Document, or any waiver on the part of Administrative
Agent and/or the Lenders of any provision or condition of this Agreement or any
other Credit Facility Document, must be in writing and shall be effective only
to the extent in such writing specifically set forth. All remedies, either under
this Agreement or any other Credit Facility Document or by law or otherwise
afforded to Administrative Agent and the Lenders, shall be cumulative and not
alternative.
47
8.4 Costs, Expenses and Attorneys' Fees. Borrower will pay to
Administrative Agent all of its reasonable costs and expenses in connection with
the preparation, negotiation, closing and administering of this Agreement and
the documents contemplated hereby and any participation or syndication of the
Loans or this Agreement, including the reasonable fees, expenses and
disbursements of a single legal counsel, together with a single legal counsel in
each applicable local jurisdiction, retained by Administrative Agent in
connection with the preparation of such documents and any amendments hereof.
Borrower will reimburse (a) Administrative Agent for all costs and expenses,
including reasonable attorneys' fees, expended or incurred by Administrative
Agent, and the Lenders for their reasonable internal out-of-pocket expenses (but
not, in the case of the Lenders for attorney's fees) in enforcing this Agreement
or the other Credit Facility Documents in connection with an Event of Default or
Inchoate Default, in actions for declaratory relief in any way related to this
Agreement or in collecting any sum which becomes due Administrative Agent or the
Lenders on the Notes or under the Credit Facility Documents and (b)
Administrative Agent and the Lenders for their reasonable out-of-pocket
expenses, including reasonable attorney fees, in the case of a restructuring or
other workout of the Loans in connection with the bankruptcy or insolvency of
Borrower or any payment default requiring, among other things, amendments to the
interest rates and/or repayment dates for the Loans. Borrower shall not be
responsible for any counsel fees of Administrative Agent or the Lenders other
than as set forth above.
8.5 Entire Agreement. This Agreement and any agreement, document or
instrument attached hereto or referred to herein integrate all the terms and
conditions mentioned herein or incidental hereto and supersede all oral
negotiations and prior writings in respect to the subject matter hereof. In the
event of any conflict between the terms, conditions and provisions of this
Agreement and any such agreement, document or instrument, the terms, conditions
and provisions of this Agreement shall prevail.
8.6 Governing Law. THIS AGREEMENT, AND ANY INSTRUMENT OR AGREEMENT
REQUIRED HEREUNDER (TO THE EXTENT NOT OTHERWISE EXPRESSLY PROVIDED FOR THEREIN),
SHALL BE GOVERNED BY, AND CONSTRUED UNDER, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REFERENCE TO CONFLICTS OF LAWS (OTHER THAN SECTION 5-1401 AND SECTION
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
8.7 Severability. In case any one or more of the provisions contained in
this Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
8.8 Headings. Paragraph headings have been inserted in this Agreement as a
matter of convenience for reference only; such paragraph headings are not a part
of this Agreement and shall not be used in the interpretation of any provision
of this Agreement.
8.9 Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with GAAP and practices consistent with those
applied in the preparation of the financial statements submitted by Borrower to
Administrative Agent, and all financial data submitted pursuant to this
Agreement shall be prepared in accordance with such principles and practices.
48
8.10 No Partnership, Etc. The Lenders and Borrower intend that the
relationship between them shall be solely that of creditor and debtor. Nothing
contained in this Agreement, the Notes or in any of the other Credit Facility
Documents shall be deemed or construed to create a partnership,
tenancy-in-common, joint tenancy, joint venture or co-ownership by or between
the Lenders and Borrower or any other Person.
8.11 Limitation on Liability. No claim shall be made by Borrower or any of
its Affiliates against the Lenders or any of their Affiliates, directors,
employees, attorneys or agents for any loss of profits, business or anticipated
savings, special or punitive damages or any indirect or consequential loss
whatsoever in respect of any breach or wrongful conduct (whether or not the
claim therefor is based on contract, tort or duty imposed by law), in connection
with, arising out of or in any way related to the transactions contemplated by
this Agreement or the other Credit Facility Documents or any act or omission or
event occurring in connection therewith; and Borrower hereby waives, releases
and agrees not to sue upon any such claim for any such damages, whether or not
accrued and whether or not known or suspected to exist in its favor.
8.12 Waiver of Jury Trial. THE LENDERS, ADMINISTRATIVE AGENT AND 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 CREDIT FACILITY
DOCUMENT, OR ANY COURSE OR CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN), OR ACTIONS OF ADMINISTRATIVE AGENT, THE LENDERS OR BORROWER.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS AND ADMINISTRATIVE AGENT
TO ENTER INTO THIS AGREEMENT.
8.13 Consent to Jurisdiction. The Lenders, Administrative Agent and
Borrower agree that any legal action or proceeding by or against Borrower or
with respect to or arising out of this Agreement, the Notes, or any other Credit
Facility Document may be brought in or removed to the courts of the State of New
York, in and for the County of New York, or of the United States of America for
the Southern District of New York, as Administrative Agent may elect. By
execution and delivery of this Agreement, the Lenders, Administrative Agent and
Borrower accept, for themselves and in respect of their property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The Lenders,
Administrative Agent and Borrower irrevocably consent to the service of process
out of any of the aforementioned courts in any manner permitted by law. Nothing
herein shall affect the right of Administrative Agent to bring legal action or
proceedings in any other competent jurisdiction. Notwithstanding the foregoing,
service of process shall not be deemed served or mailed to Administrative Agent
or the Lenders until a copy of all matters to be served have be mailed to Latham
& Watkins, 701 B Street, Suite 2100, San Diego, California 92101, Attn: Andrew
Singer or such other Person as Administrative Agent or the Lenders may hereafter
designate by notice specifically referring to this Section 8.13 given pursuant
to Section 8.1. The Lenders, Administrative Agent and Borrower further agree
that the aforesaid courts of the State of New York and of the United States of
America shall have exclusive jurisdiction with respect to any claim or
counterclaim of Borrower based upon the assertion that the rate of interest
charged by the Lenders on or under this Agreement, the Loans and/or the other
Credit Facility Documents is usurious. The Lenders, Administrative Agent and
49
Borrower hereby waive any right to stay or dismiss any action or proceeding
under or in connection with this Agreement or any other Credit Facility Document
brought before the foregoing courts on the basis of forum non-conveniens.
8.14 Knowledge and Attribution. References in this Agreement and the other
Credit Facility Documents to the "knowledge," "best knowledge" or facts and
circumstances "known to" Borrower, and all like references, mean facts or
circumstances of which a Responsible Officer of Borrower has actual knowledge.
8.15 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Borrower may not assign or otherwise transfer any of
their rights under this Agreement, and the Lenders may not assign or otherwise
transfer any of their rights under this Agreement except as provided in Article
VII.
8.16 Counterparts. This Agreement may be executed in one or more duplicate
counterparts and when signed by all of the parties listed below shall constitute
a single binding agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
50
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their officers thereunto duly authorized as of the day and year
first above written.
BORROWER:
TECO ENERGY, INC.
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-1
LENDERS:
CITIBANK, N.A.
as Administrative Agent and Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-2
BANK OF AMERICA, N.A.,
as Syndication Agent and Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-3
SOLOMON SMITH BARNEY INC.,
as Co-Lead Arranger
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-4
BANK OF NEW YORK,
as Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-5
THE BANK OF NOVA SCOTIA
as Co-Documentation Agent and Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-6
BNP PARIBAS,
as Co-Documentation Agent and Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-7
CREDIT SUISSE FIRST BOSTON,
as Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-8
JPMORGAN CHASE BANK,
as LC Issuing Bank and Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-9
SUNTRUST BANK,
as Co-Documentation Agent and Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-10
THE INDUSTRIAL BANK OF JAPAN,
LIMITED,
as Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-11
TORONTO DOMINION (TEXAS), INC.
as Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-12
BANK ONE, N.A.
as Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-13
BARCLAYS BANK, PLC
as Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-14
CREDIT LYONNAIS NEW YORK BRANCH
as Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-15
SOCIETE GENERALE NEW YORK
as Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-16
UBS AG, STAMFORD BRANCH,
as Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-17
NORDDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK/CAYMAN
ISLANDS BRANCH,
as Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-18
THE BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-19
COBANK, ACB
as Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-20
THE NORTHERN TRUST BANK,
as Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-21
SUMITOMO MITSUI BANKING
CORPORATION,
as Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-22
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK
BRANCH
as Lender
By:_______________________________________
Name: ______________________________
Title: ____________________________
S-23
SCHEDULE 1A
LENDERS, LENDING OFFICES AND PROPORTIONATE
SHARES UNDER 364-DAY FACILITY
Bank Percentage of Loans
---- -------------------
CITIBANK, N.A., 9.00%
388 Greenwich Street, 20th Floor
New York, NY 10013
BANK OF AMERICA, N.A. 9.00%
100 North Tryon Street
16th Floor, NC1-007-16-13
Charlotte, NC 28255-0001
BANK OF NEW YORK 9.00%
One Wall Street, 19th Floor
New York, NY 10286
THE BANK OF NOVA SCOTIA, 6.00%
Suite 2700, 600 Peachtree St. N.E.
Atlanta, GA 30308
BNP PARIBAS, 6.00%
787 Seventh Avenue
New York, NY 10019
CREDIT SUISSE FIRST BOSTON 6.00%
11 Madison Avenue
New York, NY 10010-3629
JPMORGAN CHASE BANK 6.00%
270 Park Avenue, 23rd Floor
New York, NY 10017
Scehdule 1A -- 1
Bank Percentage of Loans
---- -------------------
SUNTRUST BANK 6.00%
200 South Orange Avenue
Orlando, FL 32801
THE INDUSTRIAL BANK OF JAPAN, 6.00%
LIMITED
1251 Avenue of the Americas
New York, NY 10020-1104
TORONTO DOMINION (TEXAS), INC. 6.00%
909 Fannin Street, 17th Floor
Houston, TX 77010
BANK ONE, N.A. 4.50%
1 Bank One Plaza, Suite IL1-0634
Chicago, IL 60670
BARCLAYS BANK PLC 4.50%
222 Broadway
New York, NY 10038
CREDIT LYONNAIS NEW YORK BRANCH 3.00%
1301 Avenue of the Americas
New York, NY 10019
SOCIETE GENERALE NEW YORK 3.00%
560 Lexington Avenue
New York, NY 10022
UBS AG, STAMFORD BRANCH 3.00%
677 Washingto Blvd.
Stamford, CT 06901
Scehdule 1A -- 2
Bank Percentage of Loans
---- -------------------
NORDDEUTSCHE LANDESBANK 3.00%
GIROZENTRALE,
NEW YORK/CAYMAN ISLANDS
BRANCH,
1114 Avenue of the Americas, 37th
Floor
New York, NY 10036
THE BANK OF TOKYO-MITSUBISHI 2.00%
TRUST COMPANY,
1251 Avenue of the Americas
New York, NY 10020-1104
COBANK, ACB 2.00%
5500 S. Quebec St.
Greenwood Village, CO 80111
THE NORTHERN TRUST BANK 2.00%
50 S. LaSalle
Chicago, IL 60675
SUMITOMO MITSUI BANKING 2.00%
CORPORATION
277 Park Avenue
New York, NY 10172
WESTDEUTSCHE LANDESBANK 2.00%
GIROZENTRALE,
NEW YORK BRANCH,
1211 Avenue of the Americas
New York, NY 10036
Scehdule 1A -- 3
SCHEDULE 1B
LENDERS, LENDING OFFICES AND PROPORTIONATE
SHARES UNDER 3-YEAR FACILITY
Bank Percentage of Loans
---- -------------------
CITIBANK, N.A., 9.00%
388 Greenwich Street, 20th Floor
New York, NY 10013
BANK OF AMERICA, N.A. 9.00%
100 North Tryon Street
16th Floor, NC1-007-16-13
Charlotte, NC 28256-0001
BANK OF NEW YORK 9.00%
One Wall Street, 19th Floor
New York, NY 10286
THE BANK OF NOVA SCOTIA 6.00%
Suite 2700, 600 Peachtree St. N.E.
Atlanta, GA 30308
BNP PARIBAS 6.00%
787 Seventh Avenue
New York, NY 10019
CREDIT SUISSE FIRST BOSTON 6.00%
11 Madison Avenue
New York, NY 10010-3629
Scehdule 1B -- 1
Bank Percentage of Loans
---- -------------------
JPMORGAN CHASE BANK 6.00%
270 Park Avenue, 23rd Floor
New York, NY 10017
SUNTRUST BANK 6.00%
200 South Orange Avenue
Orlando, FL 32801
THE INDUSTRIAL BANK OF JAPAN, 6.00%
LIMITED
1251 Avenue of the Americas
New York, NY 10020-1104
TORONTO DOMINION (TEXAS), INC. 6.00%
909 Fannin Street, 17th Floor
Houston, TX 77010
BANK ONE, N.A. 4.50%
1 Bank One Plaza, Suite IL1-0634
Chicago, IL 60670
BARCLAYS BANK PLC 4.50%
222 Broadway
New York, NY 10038
CREDIT LYONNAIS, NEW YORK 3.00%
BRANCH
1301 Avenue of the Americas
New York, NY 10019
SOCIETE GENERALE, NEW YORK 3.00%
BRANCH
560 Lexington Avenue
New York, NY 10022
Scehdule 1B -- 2
Bank Percentage of Loans
---- -------------------
UBS AG, STAMFORD BRANCH 3.00%
677 Washingto Blvd.
Stamford, CT 06901
NORDDEUTSCHE LANDESBANK 3.00%
GIROZENTRALE,
NEW YORK/CAYMAN ISLANDS
BRANCH
1114 Avenue of the Americas, 37th
Floor
New York, NY 10036
THE BANK OF TOKYO-MITSUBISHI 2.00%
TRUST COMPANY
1251 Avenue of the Americas
New York, NY 10020-1104
COBANK, ACB 2.00%
5500 S. Quebec St.
Greenwood Village, CO 80111
THE NORTHERN TRUST BANK 2.00%
50 S. LaSalle
Chicago, IL 60675
SUMITOMO MITSUI BANKING 2.00%
CORPORATION
277 Park Avenue
New York, NY 10172
WESTDEUTSCHE LANDESBANK 2.00%
GIROZENTRALE
NEW YORK BRANCH
1211 Avenue of the Americas
New York, NY 10036
Scehdule 1B -- 3
SCHEDULE 5.3
EXCEPTIONS TO PROHIBITION
ON TRANSFERS
Indenture of Mortgage dated as of August 1, 1946, between Tampa Electric Company
and State Street Bank and Trust Company, as Trustee, as supplemented and
amended.
Schedule 5.3 -- 1
EXHIBIT A
DEFINITIONS
"Additional Commitment" has the meaning given such term in Section
2.3.4.2 of the Credit Agreement.
"Administrative Agent" means Citibank, N.A., acting in its capacity
as administrative agent for the Lenders under the Credit Agreement, or its
successor appointed pursuant to the terms of the Credit Agreement.
"Affiliates" of a specified Person means any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with the Person specified, or who holds
or beneficially owns 25% or more of the equity interest in the Person specified
or 25% or more of any class of voting securities of the Person specified.
"Aggregate LC Stated Amount" means, as of any time, the aggregate
Stated Amount of all Letters of Credit issued and outstanding under the Credit
Agreement.
"Applicable Margin" means, for any day during the term of the
Facilities, the applicable margin set forth below, as adjusted pursuant to the
proviso set forth immediately below the following chart:
=======================================================================================
LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 5
Long Term Long Term Long Term Long Term Long Term
Senior Senior Senior Senior Senior
Unsecured Non Unsecured Unsecured Unsecured Unsecured
Credit Non Credit Non Credit Non Credit Non Credit
Enhanced Debt Enhanced Enhanced Enhanced Enhanced
of the Debt of the Debt of the Debt of the Debt of the
Borrower Borrower Borrower Borrower Borrower
Rated At Rate Less Rate Less Rate Less Rate Less
Least A By Than Level 1 Than Level 2 Than Level 3 Than Level 4
S&P Or A2 by But At Least But At Least But At Least
Moody's A- By S&P Or BBB+ By S&P BBB By S&P
A3 By Or Baa1 By Or Baa2 By
Moody's. Moody's. Moody's
- ---------------------------------------------------------------------------------------
Applicable
LIBOR Margin 0.210% 0.245% 0.275% 0.400% 0.600%
364-Day
Facility
- ---------------------------------------------------------------------------------------
Applicable
Base Rate 0.00% 0.00% 0.00% 0.00% 0.00%
Margin 364-Day
Facility
- ---------------------------------------------------------------------------------------
Applicable
LIBOR Margin 0.180% 0.220% 0.250% 0.350% 0.550%
3-Year Facility
- ---------------------------------------------------------------------------------------
Applicable
Base Rate 0.00% 0.00% 0.00% 0.00% 0.00%
Margin 3-Year
Facility
- ---------------------------------------------------------------------------------------
A-1
;provided, however, that (a) with respect to the 364-Day Facility (1) for any
day on which the aggregate amount of outstanding Loans under the 364-Day
Facility exceeds 33% but is equal to or less than 66% of (I) prior to
Term-Conversion, the Total 364-Day Facility Commitment at such time and (II)
after Term-Conversion, the Total 364-Day Facility Commitment immediately prior
to Term-Conversion, the Applicable Margin for LIBOR Loans for such day under the
364-Day Facility shall be increased by 0.10% and (2) for any day on which the
aggregate amount of outstanding Loans under the 364-Day Facility exceeds 66% of
(I) prior to Term-Conversion, the Total 364-Day Facility Commitment at such time
and (II) after Term-Conversion, the Total 364-Day Facility Commitment
immediately prior to Term-Conversion, the Applicable Margin for LIBOR Loans for
such day under the 364-Day Facility shall be increased by 0.20%; and (b) with
respect to the 3-Year Facility (1) for any day on which the aggregate amount of
outstanding Loans plus the Aggregate LC Stated Amount and all outstanding
Reimbursement Obligations under the 3-Year Facility exceeds 33% but is equal to
or less than 66% of the Total 3-Year Facility Commitment plus the Aggregate LC
Stated Amount and all outstanding Reimbursement Obligations, the Applicable
Margin for LIBOR Loans for such day under the 3-Year Facility shall be increased
by 0.10% and (2) for any day on which the aggregate amount of outstanding Loans
plus the Aggregate LC Stated Amount and all outstanding Reimbursement
Obligations under the 3-Year Facility exceeds 66% of the Total 3-Year Facility
Commitment plus the Aggregate LC Stated Amount and all outstanding Reimbursement
Obligations, the Applicable Margin for LIBOR Loans for such day under the 3-Year
Facility shall be increased by 0.20%.
"Application" means an application in such form as the LC Issuing
Bank may specify from time to time pursuant to which the Borrower requests the
issuance of a Letter of Credit.
"Banking Day" means any day other than a Saturday, Sunday or other
day on which banks are or are authorized to be closed in New York, New York and,
where such term is used in any respect relating to a LIBOR Loan, which is also a
day on which dealings in Dollar deposits are carried out in the London interbank
market.
"Bankruptcy Event" shall be deemed to occur, with respect to any
Person, if that Person shall institute a voluntary case seeking liquidation or
reorganization under the Bankruptcy Law, or shall consent to the institution of
an involuntary case thereunder against it; or such Person shall file a petition
or consent or shall otherwise institute any similar proceeding under any other
applicable Federal or state law, or shall consent thereto; or such Person shall
apply for, or by consent or acquiescence there shall be an appointment of, a
receiver, liquidator, sequestrator, trustee or other officer with similar powers
for itself or any substantial part of its assets; or such Person shall make a
general assignment for the benefit of its creditors; or such Person shall admit
in writing its inability to pay its debts generally as they become due; or if an
involuntary case shall be commenced seeking liquidation or reorganization of
such Person under the Bankruptcy Law or any similar proceedings shall be
commenced against such Person under any other applicable Federal or state law
and (a) the petition commencing the involuntary case is not timely controverted,
(b) the petition commencing the involuntary case is not dismissed within 60 days
of its filing, (c) an interim trustee is appointed to take possession of all or
a substantial portion of the property, and/or to operate all or any material
part of the business of such Person and such appointment is not vacated within
60 days, or (d) an order for relief shall have been issued or entered therein;
or a decree or order of a court having jurisdiction in the premises for
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the appointment of a receiver, liquidator, sequestrator, trustee or other
officer having similar powers, over such Person or all or a substantial part of
its property shall have been entered; or any other similar relief shall be
granted against such Person under any applicable Federal or state law.
"Bankruptcy Law" means Title 11, United States Code, and any other
state or federal insolvency, reorganization, moratorium or similar law for the
relief of debtors, or any successor statute.
"Base Rate" means, for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1%) equal to the greater of (a) the Prime
Rate in effect on such day and (b) the Federal Funds Rate in effect on such day
plus 1/2 of 1%. If for any reason Administrative Agent shall have determined
that it is unable to ascertain the Federal Funds Rate, the Base Rate shall be
determined without regard to clause (b) hereof, until the circumstances giving
rise to such inability no longer exist. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal Funds Rate,
respectively.
"Base Rate Loan" means a Base Rate Revolving Loan or a Base Rate
Term Loan.
"Base Rate Revolving Loan" has the meaning given in Section
2.1.1.2(a) of the Credit Agreement.
"Base Rate Term Loan" has the meaning given in Section 2.1.2.2(a) of
the Credit Agreement.
"Borrower" means TECO Energy, Inc., a Florida corporation.
"Borrowing" means any borrowing by Borrower of Revolving Loans made
pursuant to a Notice of Borrowing, as provided in Section 2.1.1.2 of the Credit
Agreement.
"Capital Adequacy Requirement" has the meaning given in Section
2.7.4 of the Credit Agreement.
"Capitalization" means, as to Borrower, the sum of Total Debt and
Consolidated Shareholders Equity, in each case, as of the date of any
determination thereof.
"Capitalized Lease Obligations" means, as to any Person, all rental
obligations as lessee which, under GAAP, are or will be required to be
capitalized on the books of such Person, in each case taken at the amount
thereof accounted for as indebtedness in accordance with GAAP.
"Change of Law" has the meaning given in Section 2.7.2 of the Credit
Agreement.
"Closing Date" means the date when each of the conditions precedent
listed in Section 3.1 of the Credit Agreement has been satisfied (or waived in
accordance with the terms of the Credit Agreement).
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"Code" means the Internal Revenue Code of 1986, as amended.
"Commitments" means at any time with respect to each Lender, such
Lender's 364-Day Facility Commitment and 3-Year Facility Commitment; and, with
respect to all Lenders, the Total 364-Day Facility Commitment and the Total
3-Year Facility Commitment.
"Commitment Termination Date" means (i) with respect to the 364-Day
Facility, the day which is three hundred sixty-four days after the date of the
Credit Agreement, and (ii) with respect to the 3-Year Facility, the day
preceding the third anniversary of the Closing Date.
"Confirmation of Interest Period Selection" has the meaning given in
Section 2.1.3.4(b) of the Credit Agreement.
"Consolidated Shareholders Equity" means, as of the date of any
determination, the consolidated tangible net worth of Borrower and its
subsidiaries, and including amounts attributable to (a) junior subordinated
debentures, provided that such junior subordinated debentures have subordination
and deferral features substantially similar to those in the TECO Subordinated
Debentures; and (b) preferred stock to the extent excluded from Total Debt,
minus the value of minority interests in any of Borrower's subsidiaries, and
disregarding unearned compensation associated with Borrower's employee stock
ownership plan or other benefit plans, foreign currency translation adjustments
and other comprehensive income adjustments, all determined in accordance with
GAAP.
"Contingent Obligation" means, as to any Person, any obligation of
such Person guaranteeing any Indebtedness or lease obligation (each a "primary
obligation") of any other Person (the "primary obligor") in any manner, whether
directly or indirectly, including 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 or (c) otherwise to
assure or hold harmless the holder of 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 the maximum probable liability in respect thereof (assuming such
Person is required to perform thereunder) as determined in good faith by
Borrower in accordance with GAAP.
"Credit Agreement" or "Agreement" means the Credit Agreement, dated
November 14, 2001 among Borrower, Administrative Agent, and the financial
institutions parties thereto to which this Exhibit A is attached.
"Credit Facility Documents" means, collectively, the Credit
Agreement, any Notes, the Fee Letter, and any other letter agreements or similar
documents entered into by Administrative Agent (in its capacity as
administrative agent under the Credit Agreement) and Borrower in connection with
the transactions contemplated by the Credit Facility Documents mentioned above.
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"Declined Commitment Increase" has the meaning given such term in
Section 2.3.4.2 of the Credit Agreement.
"Default Rate" means the interest rate per annum equal to the Base
Rate or the LIBOR Rate (as applicable) plus the Applicable Margin, plus two
percent (2%). Interest computed with reference to the Default Rate shall be
adjusted and calculated in the same manner as interest computed with reference
to the Base Rate or the LIBOR Rate (as applicable).
"Dollar" and "$" means United States dollars or such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts in the United States of
America.
"Drawing Date" has the meaning given in Section 2.2.4 of the Credit
Agreement.
"Drawing Payment" means any payment by LC Issuing Bank honoring a
drawing under a Letter of Credit.
"Electing Lender" has the meaning given such term in Section 2.3.4.2
of the Credit Agreement.
"Equity Interests" means (a) shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person or (b) any
warrants, options or other rights to acquire such shares or interests.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"ERISA Affiliate" means (a) a corporation which is a member of a
controlled group of corporations with Borrower within the meaning of Section
414(b) of the Code, (b) a trade or business (including a sole proprietorship,
partnership, trust, estate or corporation) which is under common control with
Borrower within the meaning of Section 414(c) of the Code or Section 4001(b)(1)
of ERISA, (c) a member of an affiliated service group with Borrower within the
meaning of Section 414(m) of the Code, or (d) an entity treated as under common
control with Borrower by reason of Section 414(o) of the Code.
"ERISA Plan" means any employee benefit plan (a) maintained by
Borrower or any ERISA Affiliate, or to which any of them contributes or is
obligated to contribute, for its employees and (b) covered by Title IV of ERISA
or to which Section 412 of the Code applies.
"Event of Default" has the meaning given in Section 6.1 of the
Credit Agreement.
"Expiration Date" has the meaning given in each Letter of Credit.
"Facilities" means collectively the 364-Day Facility and the 3-Year
Facility, and each a "Facility".
"Facility Fees" has the meaning given in Section 2.4.2 of the Credit
Agreement.
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"Federal Funds Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the per annum rates
on overnight federal funds transactions with member banks of the Federal Reserve
System arranged by federal funds brokers, as published by the Federal Reserve
Bank of New York for such day (or, if such rate is not so published for any day,
the average rate charged by Administrative Agent on such day on such
transactions as determined by Administrative Agent).
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System.
"Fee Letter" means that certain Fee Letter, dated as of November 14,
2001, among Administrative Agent, Borrower, Tampa Electric and Salomon Smith
Barney Inc.
"FERC" means the Federal Energy Regulatory Commission and its
successors.
"GAAP" means generally accepted accounting principles in the United
States consistently applied.
"Governmental Authority" means any national, state or local
government (whether domestic or foreign), any political subdivision thereof or
any other governmental, quasi-governmental, judicial, regulatory, public or
statutory instrumentality, authority, body, agency, bureau or entity (including
any zoning authority, FERC, PUHCA, the Comptroller of the Currency or the
Federal Reserve Board, any central bank or any comparable authority) or any
arbitrator with authority to bind a party to the Credit Agreement at law.
"Governmental Rule" means any law, rule, regulation, ordinance,
order, code interpretation, treaty, judgment, decree, directive, guidelines,
policy or similar form of decision of any Governmental Authority.
"Granting Lender" has the meaning given in Section 7.13.2 of the
Credit Agreement.
"Hedge Transactions" means transactions under any interest swap
agreements, caps, collars or other interest rate hedging mechanisms.
"Inchoate Default" means any occurrence, circumstance or event, or
any combination thereof, which, with the lapse of time and/or the giving of
notice, would constitute an Event of Default.
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) the deferred purchase price
of assets or services which in accordance with GAAP would be shown on the
liability side of the balance sheet of such Person, (c) the face amount of all
letters of credit issued for the account of such Person (other than letters of
credit issued to secure a financial obligation of such Person to the extent such
obligation is not outstanding at the time) and all unreimbursed drafts drawn
thereunder, (d) all Indebtedness of another Person secured by any Lien on any
property owned by such Person, whether or not such Indebtedness has been assumed
by such Person, (e) all Capitalized Lease Obligations of such Person, (f) all
obligations of such Person under any subscription or similar agreement, (g) the
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discounted present value of all obligations of such Person (other than Tampa
Electric) payable under agreements for the payment of a specified purchase price
for the purchase and resale of power whether or not delivered or accepted, i.e.,
take-or-pay and similar obligations, (h) any unfunded or underfunded obligation
subject to the minimum funding standards of Section 412 of the Code of such
Person to any "employee pension benefit plan" (as defined in Section 3(2) of
ERISA) maintained at any time, or contributed to, by such Person or any other
Person which is under common control (within the meaning of Section 414(b) or
(c) of the Code) with such Person, (i) all Contingent Obligations of such Person
and (j) all obligations of such Person in respect of Hedge Transactions;
provided, however, that Indebtedness shall specifically exclude accounts payable
arising in the ordinary course of business.
"Indemnitees" has the meaning given in Section 5.12.1.
"Interest Period" means, with respect to any LIBOR Loan, the time
period selected by Borrower which commences on the first day of such Loan, or on
the first day after the last day of the immediately preceding Interest Period,
or the effective date of any conversion (as the case may be) and ends on the
last day of such time period; provided that no single day shall be deemed to be
a part of two Interest Periods.
"LC Availability Period" means the period commencing on the the
Closing Date and expiring on the LC Maturity Date.
"LC Bank Letter of Credit Fee" has the meaning given in Section
2.4.3.1 of the Credit Agreement.
"LC Beneficiary" means the account beneficiary under a Letter of
Credit, or any assignee or transferee of such beneficiary with respect to the
rights of such beneficiary under such Letter of Credit.
"LC Issuing Bank" means JPMorgan Chase Bank, a New York corporation,
or any successor Lender acceptable to the Administrative Agent and Borrower
which, from time to time, issues the Letters of Credit.
"LC Maturity Date" has the meaning given such term in Section 2.2.2
of the Credit Agreement.
"Legal Requirements" means, as to any Person, the articles of
incorporation, bylaws or other organizational or governing documents of such
Person, and any requirement under a Permit, and any Governmental Rule in each
case applicable to or binding upon such Person or any of its properties or to
which such Person or any of its property is subject.
"Lender" or "Lenders" means the banks and other financial
institutions (including any finance company, insurance company or other
financial institution or fund (whether a corporation, partnership, trust or
other entity) that is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of business and having total assets in
excess
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of $100,000,000) that are or become parties to the Credit Agreement and their
successors and assigns.
"Lending Office" means, with respect to any Lender, the office
designated as such beneath the name of such Lender on Schedule 1A or 1B, as the
case may be, or such other office of such Lender as such Lender may specify from
time to time to Administrative Agent and Borrower.
"Lenders Letter of Credit Fee" has the meaning given in Section
2.4.3.3 of the Credit Agreement.
"Letter of Credit" means a letter of credit issued by LC Issuing
Bank pursuant to 2.2.1 of the Credit Agreement in such form as may be accepted
by LC Issuing Bank.
"Letter of Credit Commitment" means, at any time with respect to
each Lender, such Lender's Proportionate Share of the Total Letter of Credit
Commitment at such time.
"Letter of Credit Fees" has the meaning given in Section 2.4.3.3 of
the Credit Agreement.
"LIBOR Loans" means a LIBOR Revolving Loan or a LIBOR Term Loan.
"LIBOR Rate" means, for any LIBOR Loan, a rate per annum (rounded
upwards if necessary, to the nearest 1/16th of 1%) equal to (a)(i) the offered
rate for deposits in Dollars (in the approximate amount and having approximately
the same Interest Period as the LIBOR Loan to be made) in the London Interbank
Market at approximately 11:00 a.m. (London time) two Banking Days prior to the
commencement of the applicable Interest Period, which appears on the Telerate
Screen, or, (ii) if such rate does not appear on the Telerate Screen, the rate
per annum determined by Administrative Agent in good faith to be the average
(rounded upwards, if necessary, to the nearest 1/16th of 1%) of the rates per
annum at which Administrative Agent, at approximately 11:00 a.m. London time,
two Banking Days prior to the commencement of such Interest Period, is offered,
by prime banks in the London interbank market selected by Administrative Agent,
for deposits in Dollars for a period approximately equal to such Interest Period
and in an amount approximately equal to the principal amount of the Loan
scheduled to be outstanding during such Interest Period, divided by (b) 100%
minus the Reserve Requirement (expressed as a percentage) for such LIBOR Loan
for such Interest Period.
"LIBOR Revolving Loan" has the meaning given in Section 2.1.1.2(a)
of the Credit Agreement.
"LIBOR Term Loan" has the meaning given in Section 2.1.2.2(a) of the
Credit Agreement.
"Lien" on any asset means any mortgage, deed of trust, lien, pledge,
charge, security interest, or easement or encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected or effective
under applicable law, as well as the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.
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"Liquidation Costs" has the meaning given in Section 2.8 of the
Credit Agreement.
"Loans" means collectively the Revolving Loans and the Term Loans.
"Majority Lenders" means , at any time, Lenders holding in excess of
50% of the Proportionate Shares.
"Material Adverse Effect" means with respect to any Person,
(a) a material adverse change in the business, property, results of
operations, or financial condition of such Person and any Significant Subsidiary
thereof, taken as a whole; or
(b) any event or occurrence of whatever nature which materially and
adversely:
(i) changes such Person's ability to perform its obligations under
the Credit Facility Documents to which it is a party, or
(ii) impairs the legality, validity, binding effect or
enforceability of the Credit Agreement or Notes.
"Maturity Date" means (i) with respect to the 364-Day Facility, the
Commitment Termination Date applicable to such Facility, unless Borrower
exercises the Term Loan Conversion Option in accordance with Section 2.1.2.1 of
the Credit Agreement, in which case the Maturity Date applicable to the 364-Day
Facility shall be the first anniversary of the Commitment Termination Date
applicable to such Facility; and (ii) with respect to the 3-Year Facility, the
Commitment Termination Date applicable to such Facility.
"Minimum Notice Period" means (a) at least three Banking Days before
the date of any Borrowing, continuation or conversion of a Loan resulting in
whole or in part in one or more LIBOR Loans and (b) before 12:00 p.m. on the
Banking Day of any Borrowing or conversion of a Loan is requested resulting in
whole or in part in one or more Base Rate Loans.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means any ERISA Plan that is a multiemployer
plan (as defined in Section 3(37) of ERISA).
"Non-Advancing Lender" has the meaning given in Section 7.12 of the
Credit Agreement.
"Non-Recourse Indebtedness" means Indebtedness which is not an
obligation of, and is otherwise without recourse to, the assets or revenues of
Borrower or any subsidiary of Borrower (other than the assets or revenues of TPS
or any subsidiary of TPS).
"Note" has the meaning given in Section 2.1.6 of the Credit
Agreement.
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"Notice of Borrowing" has the meaning given in Section 2.1.1.2 of
the Credit Agreement.
"Notice of Conversion of Loan Type" has the meaning given in Section
2.1.4 of the Credit Agreement.
"Notice of LC Activity" has the meaning given in Section 2.2.3 of
the Credit Agreement.
"Notice of Term-Conversion" has the meaning given in Section
2.1.2.2.
"Obligations" means all obligations of Borrower under the Credit
Agreement and the other Credit Facility Documents.
"Other Taxes" has the meaning given in Section 2.5.4.1 of the Credit
Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permit" means any action, approval, consent, waiver, exemption,
variance, franchise, order, permit, authorization, right or license of or from a
Governmental Authority.
"Person" means any natural person, corporation, partnership, limited
liability company, firm, association, Governmental Authority, trust, trustee or
any other entity whether acting in an individual, fiduciary or other capacity.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by Administrative Agent as its prime rate in effect at its
principal office in New York City (the Prime Rate not being intended to be the
lowest rate of interest charged by Administrative Agent in connection with
extensions of credit to debtors).
"Prohibited Transaction" means any transaction set forth in Section
406 of ERISA or Section 4975 of the Code which is not exempt under Section 408
of ERISA or Section 4975(d) of the Code.
"Proportionate Share" means (i) in the context of voting in matters
requiring the vote of all or a percentage of the Lenders, with respect to each
Lender at any time, a percentage equal to the quotient of (a) the sum of (I) so
long as any Commitments or any Loans or other amounts are outstanding under the
364-Day Facility (A) at any time prior to the Commitment Termination Date of the
364-Day Facility, the percentage interest of such Lender in the Total 364-Day
Facility Commitment, as set forth on Schedule 1A to the Credit Agreement,
multiplied by the Total 364-Day Facility Commitment, or (B) at any time after
the Commitment Termination Date of the 364-Day Facility has occurred, the
percentage interest of such Lender in the outstanding principal amount of all
Term Loans, multiplied by the aggregate outstanding principal amount of all Term
Loans, plus (II) the percentage interest of such Lender in the Total 3-Year
Facility Commitment, as set forth on Schedule 1B to the Credit Agreement,
multiplied by the sum of the Total 3-Year Facility Commitment plus the Aggregate
LC Stated Amount plus all outstanding Reimbursement Obligations, divided by (b)
the sum of (I) so long as any
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Commitments or any Loans or other amounts are outstanding under the 364-Day
Facility (A) at any time prior to the Commitment Termination Date of the 364-Day
Facility, the Total 364-Day Facility Commitment, or (B) at any time after the
Commitment Termination Date of the 364-Day Facility has occurred, the aggregate
outstanding principal amount of all Term Loans plus (II) the Total 3-Year
Facility Commitment plus the Aggregate LC Stated Amount plus all outstanding
Reimbursement Obligations, and (ii) with respect to each Lender at any time in
the context of funding Loans, participating in the issuance, extension or
increase in the Stated Amount of any Letter of Credit, reduction of Commitments,
payment of principal, interest and Reimbursement Obligations and waiver if any
conditions precedent to funding under a Particular Facility, the percentage
participation of such Lender in the Total 364-Day Facility Commitment or the
Total 3-Year Facility Commitment, as applicable, as set forth on Schedule 1A
(with respect to the 364-Day Facility) or 1B (with respect to the 3-Year
Facility, including any Letters of Credit issued thereunder) to the Credit
Agreement.
Upon any transfer by a Lender of all or part of its Commitments, the
Administrative Agent may revise Schedules 1A and 1B, as applicable, to reflect
the Lenders' Proportionate Shares after giving effect to such transfer.
"PUHCA" means the Public Utility Holding Company Act of 1935, as
amended.
"Regulatory Change" means any change after the date of the Credit
Agreement in federal, state, local or foreign laws, regulations, Legal
Requirements or requirements under applicable permits, or the adoption or making
after such date of any interpretations, directives or requests of or under any
federal, state, local or foreign laws, regulations, Legal Requirements or
requirements under applicable permits (whether or not having the force of law)
by any Governmental Authority charged with the interpretation or administration
thereof.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System (or any successor).
"Reimbursement Obligation" means Borrower's obligation to repay
Drawing Payments under any of the Letters of Credit as provided in Sections
2.2.4 and 2.2.5 of the Credit Agreement.
"Required Lenders" means (i) at any time, except in connection with
the election or enforcement of remedies, Lenders having Proportionate Shares
which in the aggregate exceed 66.7% and (ii) with respect to the election or
enforcement of remedies under Section 6.2, Lenders having Proportionate Shares
in all outstanding Loans, Letters of Credit and Reimbursement Obligations
(without including any unfunded Commitments) which in the aggregate exceed
66.7%.
"Reserve Requirement" means, for LIBOR Loans, the maximum rate
(expressed as a percentage) at which reserves (including any marginal,
supplemental or emergency reserves) are required to be maintained during the
Interest Period therefor under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding $1,000,000,000 against
"Eurocurrency liabilities" (as such term is used in Regulation D). Without
limiting the effect of the foregoing, the Reserve Requirement shall reflect any
other reserves required to be
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maintained by such member banks by reason of any Regulatory Change against (i)
any category of liabilities which includes deposits by reference to which the
LIBOR Rate or LIBOR Loans is to be determined, (ii) any category of liabilities
or extensions of credit or other assets which include LIBOR Loans or (iii) any
category of liabilities or extensions of credit which are considered irrevocable
commitments to lend.
"Responsible Officer" means, as to any Person, its president, chief
executive officer, any vice president, treasurer, or secretary or any managing
general partner or manager or managing member of a limited liability company (or
any of the preceding with regard to such managing general partner, manager or
managing member).
"Revolving Loan" has the meaning given in Section 2.1.1.1 of the
Credit Agreement.
"S&P" means Standard & Poor's Corporation.
"Significant Subsidiary" means, collectively, Tampa Electric , TPS
and any other subsidiary of Borrower, formed or acquired after the Closing Date
the total assets (after intercompany eliminations) of which exceed 10% of the
total assets of Borrower and its subsidiaries (taken as a whole).
"SPC" has the meaning given in Section 7.13.2 of the Credit
Agreement.
"Stated Amount" means with respect to each Letter of Credit, the
total amount available to be drawn thereunder at the time in question in
accordance with the terms of such Letter of Credit.
"Subject Claims" has the meaning given in Section 5.12.1.
"Subscribing Lender" has the meaning given in Section 2.3.4.5.
"Tampa Electric" means Tampa Electric Company, a Florida
corporation.
"Tampa Electric Credit Agreement" means the Credit Agreement, dated
November 14, 2001 among Tampa Electric, Citibank, N.A., as administrative agent,
and the financial institutions parties thereto.
"Tampa Electric Credit Facility Administrative Agent" means
Citibank, N.A., acting in its capacity as administrative agent for the Tampa
Electric Credit Facility Lenders under the Tampa Electric Credit Agreement, or
its successor appointed pursuant to the terms of the Tampa Electric Credit
Agreement.
"Tampa Electric Credit Facility Documents" has the meaning given the
term "Credit Facility Documents" in Exhibit A to the Tampa Electric Credit
Agreement.
"Tampa Electric Credit Facility Lenders" has the meaning given the
term "Lenders" in Exhibit A to the Tampa Electric Credit Agreement.
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"Tampa Electric Credit Facility Majority Lenders" has the meaning
given the term "Majority Lenders" in Exhibit A to the Tampa Electric Credit
Agreement.
"Tampa Electric Total Commitment" has the meaning given the term
"Total Facility Commitment" in Exhibit A to the Tampa Electric Credit Agreement.
"Taxes" has the meaning given in Section 2.5.4.1 of the Credit
Agreement.
"TECO Subordinated Debentures" means the 8.50% Junior Subordinate
Notes due 2041, issued by Borrower on December 20, 2000, in the original
principal amount of $206,200,000.
"Telerate Screen" means the display designated as Page 3750 on the
Reuters Monitor Money Rates Service (or such page as may replace such page for
the purpose of displaying London Interbank offered rates of major banks, or, if
discontinued, any replacement service designated by Administrative Agent).
"Term-Conversion" has the meaning given in Section 2.1.2.1 of the
Credit Agreement.
"Term Loan" has the meaning given in Section 2.1.2.1 of the Credit
Agreement.
"Term Loan Conversion Option" means the right and option of Borrower
under the Credit Agreement to convert any outstanding principal balance under
the 364-Day Facility as of the Commitment Termination date to Term Loans as of
such date.
"Term Loan Maturity Date" the day preceding the first anniversary of
the Commitment Termination Date of the 364-Day Facility.
"364-Day Facility" has the meaning given in Recital B of the Credit
Agreement.
"364-Day Facility Commitment" means, at any time with respect to
each Lender, such Lender's Proportionate Share of the Total 364-Day Facility
Commitment at such time.
"3-Year Facility" has the meaning given in Recital B of the Credit
Agreement.
"3-Year Facility Commitment" means, at any time with respect to each
Lender, such Lender's Proportionate Share of the 3-Year Facility Total
Commitment at such time.
"Total Commitment" has the meaning given in Section 2.3.1 of the
Credit Agreement.
"Total Debt" means, without duplication, Indebtedness of Borrower
and its Significant Subsidiaries determined on a consolidated basis outstanding
at the date of any determination thereof, but expressly excluding (a)
Non-Recourse Indebtedness of Borrower and its subsidiaries, (b) junior
subordinated debentures issued by Borrower and its subsidiaries; provided that
such junior subordinated debentures have subordination and deferral features
substantially similar to those in the TECO Subordinated Debentures, and (c)
preferred stock of
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Borrower and its subsidiaries in an amount not to exceed 10% of Borrower's
Capitalization on such date.
"Total Letter of Credit Commitment" has the meaning given in Section
2.3.2.
"Total 364-Day Facility Commitment" has the meaning given in Section
2.3.1 of the Credit Agreement.
"Total 3-Year Facility Commitment" has the meaning given in Section
2.3.1 of the Credit Agreement.
"TPS" means TECO Power Services Corporation, a Florida corporation.
"Type" means the type of Loan, whether a Base Rate Loan or LIBOR
Loan.
"Up-Front Fee" has the meaning given in Section 2.4.1 of the Credit
Agreement.
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RULES OF INTERPRETATION
1. The singular includes the plural and the plural includes the
singular.
2. "or" is not exclusive.
3. A reference to a Governmental Rule or Legal Requirement includes
any amendment or modification to such Governmental Rule or Legal Requirement,
and all regulations, rulings and other Governmental Rules or Legal Requirement
promulgated under such Governmental Rule.
4. A reference to a Person includes its permitted successors and
permitted assigns.
5. Accounting terms have the meanings assigned to them by GAAP, as
applied by the accounting entity to which they refer.
6. The words "include," "includes" and "including" are not limiting.
7. A reference in a document to an Article, Section, Exhibit,
Schedule, Annex, Appendix or Attachment is to the Article, Section, Exhibit,
Schedule, Annex, Appendix or Attachment of such document unless otherwise
indicated. Exhibits, Schedules, Annexes, Appendices or Attachments to any
document shall be deemed incorporated by reference in such document.
8. References to any document, instrument or agreement (a) shall
include all exhibits, schedules and other attachments thereto, (b) shall include
all documents, instruments or agreements issued or executed in replacement
thereof, and (c) shall mean such document, instrument or agreement, or
replacement or predecessor thereto, as amended, modified and supplemented from
time to time and in effect at any given time.
9. The words "hereof," "herein" and "hereunder" and words of similar
import when used in any document shall refer to such document as a whole and not
to any particular provision of such document.
10. References to "days" shall mean calendar days, unless the term
"Banking Days" shall be used. References to a time of day shall mean such time
in New York, New York, unless otherwise specified.
11. The Credit Facility Documents are the result of negotiations
between, and have been reviewed by Borrower, Administrative Agent, each Lender
and their respective counsel. Accordingly, the Credit Facility Documents shall
be deemed to be the product of all parties thereto, and no ambiguity shall be
construed in favor of or against Borrower, Administrative Agent or any Lender
solely as a result of any such party having drafted or proposed the ambiguous
provision.
A-15
EXHIBIT B
FORM OF NOTE
Exhibit 4.41
EXHIBIT B
to Credit Agreement
FORM OF NOTE
$______________ New York, New York
Note No. ______ __________, 200_
For value received, the undersigned TECO ENERGY, INC., a Florida
corporation ("Borrower"), promises to pay to ___________________ ("Lender"), or
order, at the office of _______ located at ______________________, Attn:
___________________, in lawful money of the United States of America and in
immediately available funds, the principal amount of
_____________________________ DOLLARS ($______________), or if less, the
aggregate unpaid and outstanding principal amount of Loans advanced by Lender to
Borrower pursuant to that certain Credit Agreement, dated as of [___________],
2001 (as amended, amended and restated or otherwise modified from time to time,
the "Credit Agreement"), by and among Borrower, the financial institutions named
therein (the "Lenders") and Citibank, N.A., as Administrative Agent for the
Lenders ("Administrative Agent"), and all other amounts owed by Borrower to
Lender hereunder.
This is one of the Notes referred to in the Credit Agreement and is
entitled to the benefits thereof and is subject to all terms, provisions and
conditions thereof. Capitalized terms used and not defined herein shall have the
meanings set forth in the Credit Agreement.
The principal amount hereof is payable in accordance with the Credit
Agreement, and such principal amount may be prepaid solely in accordance with
the Credit Agreement, including, without limitation, any prepayment fees and
premiums provided for therein.
Borrower further agrees to pay, in lawful money of the United States
of America and in immediately available funds, interest from the date hereof on
the unpaid and outstanding principal amount hereof until such unpaid and
outstanding principal amount shall become due and payable (whether at stated
maturity, by acceleration or otherwise) at the rates of interest and at the
times set forth in the Credit Agreement and Borrower agrees to pay other fees
and costs as stated in the Credit Agreement.
If any payment on this Note becomes due and payable on a date which
is not a Banking Day, such payment shall be made on the first succeeding, or
next preceding, Banking Day, in accordance with the terms of the Credit
Agreement.
All Loans made by Lender pursuant to the Credit Agreement and other
Credit Documents, and all payments and prepayments made on account of the
principal balance hereof shall be recorded by Lender on the grid attached
hereto, provided that failure to make such a notation shall not affect or
diminish Borrower's obligation to repay all amounts due on this Note as and when
due.
Upon the occurrence and during the continuation of any one or more
Events of Default, all amounts then remaining unpaid on this Note may become or
be declared to be immediately due and payable as provided in the Credit
Agreement and other Credit Facility Documents, without notice of default,
presentment or demand for payment, protest or notice of nonpayment or dishonor,
or notices or demands of any kind, all of which are expressly waived by
Borrower.
Borrower agrees to pay costs and expenses, including without
limitation attorneys' fees, as set forth in Section 8.4 of the Credit Agreement.
This Note has been executed and delivered in and shall be construed
and interpreted in accordance with and governed by the laws of the State of New
York, without reference to conflicts of laws (other than Section 5-1401 and
Section 5-1402 of the New York General Obligations Law).
[THE NEXT PAGE IS THE SIGNATURE PAGE]
2
Exhibit 4.41
TECO ENERGY, INC.
By: ___________________________________________
Name:
Title:
S-1
Prepayment or Outstanding
Date Advance Repayment Balance
________________________________________________________________________________
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EXHIBIT C-1
FORM OF NOTICE OF BORROWING
Exhibit 4.41
Exhibit C-1
to Credit Agreement
FORM OF NOTICE OF BORROWING
(Delivered pursuant to Section 2.1.1.2
of the TECO Energy, Inc. Credit Agreement)
[__________], 200[_____]
Citibank, N.A.,
as Administrative Agent for the Bridge Banks
388 Greenwich Street
20th Floor
New York, NY 10013
Attention: Lorraine Frankel
Tel: (212) 816-0988
Fax: (212) 816-0584
with copies to:
Citibank N.A.
2 Penns Way, Suite 2000
New Castle, Delaware 19720
Attention: Janet Wallace
Tel: (302) 894-6029
Fax: (302) 894-6120
Re: TECO Energy, Inc. Credit Agreement: Notice of Borrowing
This Notice of Borrowing is delivered to you pursuant to Section
2.1.1.2 of the Credit Agreement dated as of [________], 2001 (as amended,
modified or supplemented from time to time, the "Credit Agreement"), among TECO
Energy, Inc., a Florida corporation ("Borrower"), the financial institutions
named therein (the "Lenders") and Citibank, N.A., as administrative agent for
the Lenders ("Administrative Agent"). All capitalized terms used herein shall
have the respective meanings specified in Exhibit A to the Credit Agreement
unless otherwise defined herein or unless the context requires otherwise.
This Notice of Borrowing constitutes a request for a Borrowing as
set out below:
1. The requested date of the Borrowing is __________, 200____,
which is a Banking Day.
2. The total amount of the requested Loan is $________
3. Borrowers request the following funding options:
a. Base Rate Loan amount: $________
b. LIBOR Loan amount: $_________
Amount Requested Initial Interest Period
---------------- -----------------------
$__________ ______________ months
$__________ ______________ months
$__________ ______________ months
[4. The proceeds of the Loan should be sent as follows: [Insert
wiring instructions]]
5. The Facility under which the Loan is requested is the [specify
the 3-year Facility of the 364-day Facility].
The undersigned further confirms and certifies to Administrative
Agent and each Lender that (i) the requested Loan, when aggregated with all
Loans then outstanding, will not exceed the Total Commitment applicable to the
Facility under which the Loan is requested, and (ii) the conditions set forth in
Section [3.1][3.2] of the Credit Agreement have been satisfied or waived in
accordance with the terms thereof.
[SIGNATURE PAGE FOLLOWS]
2
TECO ENERGY, INC.
By: ___________________________________________
Name:
Title:
3
EXHIBIT C-2
FORM OF NOTICE OF CONVERSION OF LOAN TYPE
Exhibit 4.41
EXHIBIT C-2
to Credit Agreement
FORM OF NOTICE OF CONVERSION OF LOAN TYPE
(Delivered pursuant to Section 2.1.4
of the TECO Energy, Inc. Credit Agreement)
[Date]
Citibank, N.A.,
as Administrative Agent for the Banks
388 Greenwich Street
20th Floor
New York, NY 10013
Attention: Lorraine Frankel
Tel: (212) 816-0988
Fax: (212) 816-0584
with copies to:
Citibank N.A.
2 Penns Way, Suite 2000
New Castle, Delaware 19720
Attention: Janet Wallace
Tel: (302) 894-6029
Fax: (302) 894-6120
Re: TECO Energy, Inc.: Notice of Conversion of Loan Type
Reference is hereby made to that certain Credit Agreement dated as
of [_________], 2001 (as amended, amended and restated or otherwise modified
from time to time, the "Credit Agreement"), among TECO Energy, Inc., a Florida
corporation ("Borrower"), the financial institutions named therein (the
"Lenders") and Citibank, N.A., as Administrative Agent for the Lenders
("Administrative Agent"). All capitalized terms used herein shall have the
respective meanings specified in Exhibit A to the Credit Agreement unless
otherwise defined herein or unless the context requires otherwise.
Pursuant to Section 2.1.4 of the Credit Agreement, Borrower hereby
requests conversion of the following Loans as set forth below [include only
those which are applicable]:
A. 364-Day Facility
1. Conversion of Base Rate Loans to LIBOR Loans:
Base Rate Loans in the following amount: $_________
to be converted to LIBOR Loans
as follows:
LIBOR Loan to expire __________, ____: $_________
LIBOR Loan to expire __________, ____: $_________
2. Conversion of LIBOR Loans to Base Rate Loans:
LIBOR Loans in the following amount: $_________
to be converted to Base Rate Loans.
B. 3-Year Facility
1. Conversion of Base Rate Loans to LIBOR Loans:
Base Rate Loans in the following amount: $_________
to be converted to LIBOR Loans
as follows:
LIBOR Loan to expire __________, ____: $_________
LIBOR Loan to expire __________, ____: $_________
2. Conversion of LIBOR Loans to Base Rate Loans:
LIBOR Loans in the following amount: $_________
to be converted to Base Rate Loans.
The effective date of the conversion shall be _____, ____ which is a
Banking Day and which shall be the first day after the last day of an Interest
Period if converting from LIBOR Loans.
2
IN WITNESS WHEREOF, Borrower has executed this Notice of Conversion
of Loan Type on the date set forth above.
TECO ENERGY, INC.
By: ____________________________________________
Name:
Title:
The undersigned acknowledges receipt of a copy of this Notice of Conversion of
Loan Type:
CITIBANK, N.A., Date: __________, _____
as Administrative Agent for the Banks
By: _________________________________________
Name:
Title:
3
EXHIBIT C-3
FORM OF CONFIRMATION OF INTEREST PERIOD SELECTION
Exhibit 4.41
EXHIBIT C-3
to Credit Agreement
FORM OF CONFIRMATION OF INTEREST PERIOD SELECTION
(Delivered pursuant to Section 2.1.3.4(b)of the
TECO Energy, Inc. Credit Agreement)
[Date]
Citibank, N.A.,
as Administrative Agent for the Banks
388 Greenwich Street
20th Floor
New York, NY 10013
Attention: Lorraine Frankel
Tel: (212) 816-0988
Fax: (212) 816-0584
with copies to:
Citibank N.A.
2 Penns Way, Suite 2000
New Castle, Delaware 19720
Attention: Janet Wallace
Tel: (302) 894-6029
Fax: (302) 894-6120
Re: TECO Energy, Inc. Credit Agreement: Confirmation of Interest
Period Selection
This Confirmation of Interest Period Selection is delivered to you
pursuant to Section 2.1.3.4(b) of the Credit Agreement dated as of
[____________], 2001 ("Credit Agreement"), among TECO Energy, Inc., a Florida
corporation ("Borrower"), the financial institutions named therein (the
"Lenders") and Citibank, N.A., as Administrative Agent for the Lenders
("Administrative Agent"). All capitalized terms used herein shall have the
respective meanings specified in Exhibit A to the Credit Agreement unless
otherwise defined herein or unless the context requires otherwise.
This Confirmation of Interest Period Selection relates to $
__________ of the LIBOR Loans with an Interest Period ending on ________. This
Confirmation of Interest Period Selection constitutes a confirmation that
effective __________ (which shall be the last day of an Interest Period):
The requested Interest Period for ___________ of such LIBOR Loans
shall be __ months.
This notice shall be effective only if delivered to Administrative
Agent as a Confirmation of Interest Period Selection made pursuant to Section
2.1.3.4(b) of the Credit Agreement.
The undersigned confirms and certifies to each Lender that as of the
date of this Confirmation of Interest Period Selection, no Event of Default or
Inchoate Default exists under the Credit Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
2
Exhibit 4.41
TECO ENERGY, INC.
By: _______________________________________
Name:
Title:
The undersigned acknowledges receipt of a copy of this Confirmation
of Interest Period Selection:
CITIBANK, N.A., Date: __________, _____
as Administrative Agent for the Lenders
By: ______________________________________
Name:
Title:
3
EXHIBIT C-4
FORM OF NOTICE OF TERM-CONVERSION
Exhibit 4.41
EXHIBIT C-4
to Credit Agreement
FORM OF NOTICE OF TERM-CONVERSION
(Delivered pursuant to Section 2.1.2.2
of the TECO Energy, Inc. Credit Agreement)
[Date]
Citibank, N.A.,
as Administrative Agent for the Banks
388 Greenwich Street
20th Floor
New York, NY 10013
Attention: Lorraine Frankel
Tel: (212) 816-0988
Fax: (212) 816-0584
with copies to:
Citibank N.A.
2 Penns Way, Suite 2000
New Castle, Delaware 19720
Attention: Janet Wallace
Tel: (302) 894-6029
Fax: (302) 894-6120
Re: TECO Energy, Inc.Credit Agreement: Notice of Term-Conversion
This Notice of Term-Conversion is delivered to you pursuant to
Section 2.1.2.2 of that certain Credit Agreement dated as of [__________], 2001
(as amended, amended and restated or otherwise modified from time to time, the
"Credit Agreement"), among TECO Energy, Inc., a Florida corporation
("Borrower"), the financial institutions named therein ("Lenders") and
[__________], as Administrative Agent for the Lenders ("Administrative Agent").
All capitalized terms used herein shall have the respective meanings specified
in Exhibit A to the Credit Agreement unless otherwise defined herein or unless
the context requires otherwise.
This Notice of Term-Conversion constitutes a request for
Term-Conversion of all outstanding Loans under the 364-Day Facility as of the
Commitment Termination Date applicable thereto in an amount not in excess of the
Total 364-Day Facility Commitment.
1. The date of the Term-Conversion is ______________, ______.
2. The aggregate amount of Loans under the 364-Day Facility to be
converted to Term Loans is $_________________.
3. Borrower requests the following funding options:
a. Base Rate Term Loans: $_________________.
1
b. LIBOR Term Loans: $________________.
Amount Requested Initial Interest Period
---------------- -----------------------
$__________ ______________ months
$__________ ______________ months
$__________ ______________ months
The undersigned further confirms and certifies to Administrative
Agent and each Lender that, as of the date of the Term-Conversion, the
conditions set forth in Section 3.2 of the Credit Agreement have all been
satisfied or waived in accordance with the terms thereof.
TECO ENERGY, INC.
By: ______________________________________
Name:
Title:
2
EXHIBIT C-5
FORM OF NOTICE OF LC ACTIVITY
Exhibit 4.41
EXHIBIT C-5
to Credit Agreement
FORM OF NOTICE OF LC ACTIVITY
(Delivered pursuant to Section 2.2.3
of the TECO Energy, Inc. Credit Agreement)
[Date]
Citibank, N.A.,
as Administrative Agent for the Banks
2 Penns Way, Suite 2000
New Castle, Delaware 19720
Attention: Janet Wallace
Tel: (302) 894-6029
Fax: (302) 894-6120
with copy to:
JPMorgan Chase Bank
as LC Issuing Bank
One Chase Manhattan Plaza
10th Floor
New York, NY 10081
Attention: Yvon Luxama
Tel: (212) 552-1574
Fax: (212) 552-7819
Re: TECO Energy, Inc.: Notice of LC Activity
This Notice of LC Activity is delivered to you pursuant to Section
2.2.3 of the Credit Agreement dated as of [_________], 2001 ("Credit
Agreement"), among TECO Energy, Inc., a Florida corporation ("Borrower"), the
financial institutions named therein (the "Lenders") and Citibank, N.A., as
Administrative Agent for the Lenders ("Administrative Agent"). All capitalized
terms used herein shall have the respective meanings specified in Exhibit A to
the Credit Agreement unless otherwise defined herein or unless the context
requires otherwise.
1. We request that [a/the] [specify Letter of Credit] be [issued]
[extended] [changed] as provided below.
2. The issue date of the Letter of Credit is __________________, and
the [extended] Expiration Date of the Letter of Credit is ________________,
neither of which is later than the Maturity Date of the 3-Year Facility.
3. [The Stated Amount of the Letter of Credit to be issued is
$_____________ which, together with the aggregate Stated Amount of all other
outstanding Letters of Credit and,
without duplication, all outstanding Reimbursement Obligations in respect
thereof, does not exceed the Total Letter of Credit Commitment.] or
[[USE FOR INCREASING STATED AMOUNT OF LETTERS OF CREDIT] We request that the
Stated Amount of the Letter of Credit in favor of __________ be changed from
$__________ to $__________ which, together with the aggregate Stated Amount of
all other outstanding Letters of Credit and, without duplication, all
outstanding Reimbursement Obligations in respect thereof, does not exceed the
Total Letter of Credit Commitment.] .
After giving effect to the foregoing [issuance/increase in Stated Amount], the
aggregate principal amount of all Loans outstanding under the 3-Year Facility
will not exceed the Total 3-Year Facility Commitment.
4. Administrative Agent is instructed to deliver the [Letter of
Credit] [notice of extension] [notice of change in Stated Amount] to ________,
[the LC Beneficiary] [Borrower], at [address].
The undersigned further confirms and certifies to Administrative
Agent and each Lender that the Letter of Credit requested or modified hereby
shall only be used in the manner and for the purposes specified and permitted by
the Credit Agreement, and that, as of the date of the issuance of the Letter of
Credit, the conditions set forth in Section 3.2 of the Credit Agreement have all
been satisfied or waived in accordance with the terms thereof.
TECO ENERGY, INC.,
By: _________________________________________
Name:
Title:
2
EXHIBIT D
FORM OF BORROWER'S CLOSING CERTIFICATE
Exhibit 4.41
Exhibit D
to Credit Agreement
BORROWER'S CLOSING CERTIFICATE
Pursuant to Section 3.1.9 of the Credit Agreement (as defined
below), the undersigned hereby certifies on this [_____] day of [__________]
2001 to CITIBANK, N.A., as administrative agent ("Administrative Agent") for the
Lenders under that certain Credit Agreement, dated as of [___________], 2001 (as
amended, modified or supplemented from time to time, the "Credit Agreement")
among TECO Energy, Inc., a Florida corporation ("Borrower"), the financial
institutions named therein (the "Lenders") and Administrative Agent, that:
1. Borrower is not or, but for the passage of time or the giving of
notice or both will be, in breach of any material obligation thereunder which is
reasonably expected to have a Material Adverse Effect on Borrower.
2. Each representation and warranty made in Article IV of the Credit
Agreement is true and correct as of the Closing Date (unless such representation
or warranty expressly relates to another time).
3. There exists no Event of Default or Inchoate Default as of the
Closing Date.
4. The conditions precedent set forth in Section 3.1 of the Credit
Agreement have been satisfied or have been waived in writing by Administrative
Agent with, as applicable, the consent of the Lenders.
All capitalized terms used herein which are defined in the Credit
Agreement shall have the meaning given to them in Exhibit A to the Credit
Agreement.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, Borrower has executed this Certificate on the
date set forth above.
TECO ENERGY, INC.
By: ____________________________________________
Name:
Title: