EXHIBIT 99
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CREDIT AGREEMENT
dated as of May 2, 2002,
among
PG&E GAS TRANSMISSION, NORTHWEST CORPORATION,
as the Company,
CERTAIN COMMERCIAL LENDING INSTITUTIONS,
as the Lenders,
THE ROYAL BANK OF SCOTLAND PLC,
as Administrative Agent for the Lenders
BARCLAYS BANK PLC, NEW YORK BRANCH,
and
BANK ONE, NA,
as Co-Syndication Agents for the Lenders,
and
FLEET NATIONAL BANK,
and
BANK OF MONTREAL,
as Co-Documentation Agents for the Lenders,
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THE ROYAL BANK OF SCOTLAND PLC,
as Lead Arranger and Sole Bookrunner
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of May 2, 2002 is among PG&E GAS
TRANSMISSION, NORTHWEST CORPORATION, a corporation duly organized and validly
existing under the laws of the State of California (the "Company"), the various
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financial institutions as are or may become parties hereto (collectively, the
"Lenders"), THE ROYAL BANK OF SCOTLAND PLC ("RBS"), as Administrative Agent (the
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"Agent") for the Lenders, BARCLAYS BANK PLC, NEW YORK BRANCH, and BANK ONE, NA,
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as co-syndication agents for the Lenders (collectively, the "Co-Syndication
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Agents"), and FLEET NATIONAL BANK and BANK OF MONTREAL, as co-documentation
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agents for the Lenders (collectively, the "Co-Documentation Agents").
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The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING MATTERS
Section 1.1 Certain Defined Terms. The following terms (whether or not
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underscored) when used in this Agreement, including its preamble, shall, except
where the context otherwise requires, have the following meanings (such meanings
to be equally applicable to the singular and the plural forms thereof):
"Adjusted LIBOR Rate" shall mean, for any LIBOR Advances, a rate per annum
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(rounded upwards, if necessary, to the next 1/100 of one percent) determined by
the Agent to be equal to the LIBOR Rate for such Advances for the Interest
Period for such Advances divided by the difference of 1 minus the Reserve
Requirement for such Advances for such Interest Period.
"Advance" shall mean, except as otherwise provided herein, any LIBOR
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Advance and/or Reference Rate Advance.
"Advance Outstandings" shall mean at any time the aggregate principal
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amount of all outstanding Advances at such time.
"Advance Request" shall mean any LIBOR Advance Request or Reference Rate
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Advance Request.
"Affiliate" of any Person means any other Person which, directly or
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indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power to
direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
"Agent" shall mean RBS in its capacity as administrative agent for the
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Lenders hereunder or any successor administrative agent.
"Agents" shall mean the Agent, the Co-Syndication Agents and the
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Co-Documentation Agents, together with successors in any such capacities.
"Agreement" means, on any date, this Credit Agreement as originally in
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effect on the Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on such
date.
"Applicable Margin" shall mean, on any date and with respect to each LIBOR
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Advance (subject to clause (iii) of the definition of "Applicable Rating
Level"), the applicable margin set forth below based on the Applicable Rating
Level on such date:
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Applicable
Rating Level LIBOR Advances
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Level I 0.650%
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Level II 0.725%
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Level III 0.800%
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Level IV 0.950%
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Level V 1.125%
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Level VI 1.450%
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"Applicable Rating Level" shall mean the highest level set forth below that
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corresponds to a rating issued from time to time by S&P or Moody's as applicable
to the Company's senior unsecured long-term debt:
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Moody's S&P
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Level I **A3 **A-
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Level II A3 A-
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Level III Baa1 BBB+
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Level IV Baa2 BBB
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Level V Baa3 BBB-
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Level VI *Baa3 *BBB-
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For example, if the Moody's rating is Baa1 and the S&P rating is BBB, Level III
shall apply.
For purposes of the foregoing, (i) "**" means a rating more favorable than;
"*" means a rating less favorable than; (ii) if ratings for the Company's senior
unsecured long-term debt, issued by Moody's and S&P shall differ by two or more
rating levels, then the Applicable Rating Level shall be an average of the
different ratings levels rounded up to the next highest rating level; (iii) if
ratings for the Company's senior unsecured long-term debt shall not be available
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from S&P or Moody's, Level VI shall be deemed applicable; (iv) if determinative
ratings shall change (other than as a result of a change in the rating system
used by any applicable Rating Agency) such that a change in Applicable Rating
Level would result, such change shall effect a change in Applicable Rating Level
as of the day on which it is first announced by the applicable Rating Agency,
and any change in the Applicable Margin or percentage used in calculating fees
due hereunder shall apply commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next such
change; and (v) if the rating system of any of the Rating Agencies shall change
prior to the date all obligations hereunder have been paid and the Commitments
canceled, the Company and the Lenders shall negotiate in good faith to amend the
references to specific ratings in this definition to reflect such changed rating
system, and pending such amendment, if no Applicable Rating Level is otherwise
determinable based upon the foregoing, the last Applicable Rating Level shall
apply.
"Attributable Debt" shall mean, with respect to any Sale-Leaseback
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Transaction as of any particular time, the present value discounted at the rate
of interest implicit (in the reasonable judgment of the Company) in the terms of
the lease of the obligations of the lessee under such lease for net rental
payments (net of insurance, taxes and indemnity and other similar charges)
during the remaining term of the lease (including any period for which such
lease has been extended).
"Authorized Officer" means, relative to the Company, those of its officers
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whose signatures and incumbency shall have been certified to the Agent and the
Lenders pursuant to subsection 9.1(b).
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"Authorized Signatory" shall mean, in relation to any Person and any
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communication to be made or document to be executed or certified by such Person
at any time, each other Person who is at such time duly appointed as its
authorized signatory by such Person in a manner acceptable to the Agent.
"Available Facility Amount" shall mean at any time the Total Commitments
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less the Advance Outstandings at such time.
"Base Rate" shall mean, at any time, the rate per annum then most recently
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announced by the Agent at New York, New York, as its base rate for Dollar loans
in the United States, which base rate may or may not be the lowest rate charged
by the Agent on loans to any of its customers.
"Business Day" shall mean a day other than Saturday or Sunday on which
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commercial banks and foreign exchange markets are not required or permitted to
be closed for business in New York City, New York and (with respect to LIBOR
Advances only) London, England.
"Capital Lease Obligations" shall mean all monetary obligations of the
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Company or any of its Subsidiaries under any leasing or similar arrangement
which, in accordance with GAAP, would be classified as capitalized leases, and,
for purposes of this Agreement and each other Loan Document, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP.
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"CERCLA" means the Comprehensive Environmental Response, Compensation and
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Liability Act of 1980, as amended.
"Co-Agents" is defined in the preamble.
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"Co-Documentation Agents" is defined in the preamble.
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"Co-Syndication Agents" is defined in the preamble.
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"Code" shall mean the Internal Revenue Code of 1986, as amended, reformed
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or otherwise modified from time to time.
"Commitment" shall mean, as to each Lender, the obligation of such Lender
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to make Advances in an aggregate amount at any one time outstanding equal to the
amount set opposite such Lender's name on Schedule I hereto under the caption
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"Commitment" (as the same may be reduced pursuant to Section 2.5 hereof or
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increased pursuant to Section 14.7(b)(i) hereof).
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"Commitment Proportion" shall mean, in relation to a Lender, at any time
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the proportion which its Commitment bears to the Total Commitments at such time.
"Company" is defined in the preamble.
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"Debt" shall mean indebtedness for borrowed money.
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"Default" shall mean an Event of Default or any condition, occurrence or
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event which, after notice or lapse of time or both, would constitute an Event of
Default.
"Default Rate" shall mean, in respect of any principal of any Advance or
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any other amount payable by the Company under this Agreement which is not paid
when due (whether at stated maturity, by acceleration or otherwise), a rate per
annum during the period commencing on the due date until such amount is paid in
full equal to two percent (2%) plus the Reference Rate as in effect from time to
time; provided that, if such amount in default is principal of a LIBOR Advance
and the due date is a day other than the last day of the Interest Period
therefor, the "Default Rate" for such principal shall be, for the period
commencing on the due date and ending on the last day of the Interest Period
therefor, one percent above the interest rate for such Advance and, thereafter,
the rate provided for above in this definition.
"Dollars" and "$" shall mean lawful money of the United States of America
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which is legal tender for the payment of public and private debts in the United
States.
"Drawdown Date" shall mean: (i) in relation to any LIBOR Advance, the
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Business Day for the making thereof as specified in the LIBOR Advance Request
relating thereto; and (ii) in relation to any Reference Rate Advance, the
Business Day for the making thereof as specified in the Reference Rate Advance
Request relating thereto.
"Effective Date" shall mean the date on which (i) all conditions precedent
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set forth in Section 9.1 hereof are satisfied or waived by all Lenders, and (ii)
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this Agreement becomes effective pursuant to Section 14.16 hereof.
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"Environmental Laws" shall mean any and all federal, state, local and
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foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
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amended, and any successor statute of similar import, together with the
regulations thereunder, in each case, as in effect from time to time. Reference
to Sections of ERISA also refer to any successor sections.
"Event of Default" shall have the meaning assigned to that term in Article
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12 hereof.
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"Existing Credit Agreement" shall mean that certain Amended and Restated
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Credit Agreement, dated as of May 24, 1999, among the Company, and the agents
and the lenders party thereto, and the other agreements or instruments executed
and delivered in connection therewith, or as security for the payment or
performance of the obligations thereunder, as such agreements may have been
amended, supplemented or restated from time to time.
"Facility" shall mean the committed advance facility which may be utilized
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subject to the other terms and provisions hereof for Advances which shall be
evidenced by the Notes.
"Facility Office" shall mean, in relation to a Lender, the office
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designated on the signature page below or such other office as it may from time
to time designate by notice to the Agent.
"Federal Funds Rate" shall mean, for any day, the rate per annum (rounded
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upwards, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (a) if the day for which such rate is to be
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determined is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
rate charged or chargeable to the Agent on such day on such transactions as
determined by the Agent.
"GAAP" shall mean generally accepted accounting principles set forth in the
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opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other pronouncements by
regulatory authorities or such entities as may be recognized by a significant
segment of the United States accounting profession to define
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accepted accounting practice, which are applicable to the circumstances as of
the date of determination.
"Guarantee" by any Person shall mean any obligation, contingent or
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otherwise, of such Person directly guaranteeing any Indebtedness of any other
Person or providing for the payment of any Indebtedness of any other Person or
otherwise expressly protecting the holder of such Indebtedness against loss
(whether by virtue or partnership arrangements, by agreement to keep-well, to
purchase assets, goods, securities or services, or to take-or-pay or otherwise),
provided that the term "Guarantee" shall not include (i) endorsements of
negotiable instruments for collection or deposit in the ordinary course of
business, (ii) indemnities or hold-harmless agreements against personal injury
or property damage; or (iii) contractual obligations that are conditioned upon
performance.
"Hazardous Material" means
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(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource Conservation and
Recovery Act, as amended;
(c) any petroleum, crude oil or any fraction thereof;
(d) any hazardous, dangerous or toxic chemical, material, waste or
substance within the meaning of any Environmental Law;
(e) any radioactive material, including any naturally occurring
radioactive material, and any source, special or by-product material as
defined in 42 U.S.C.section 2011 et. seq., and any amendments or
reauthorizations thereof;
(f) asbestos-containing materials in any form or condition; or
(g) polychlorinated biphenyls in any form or condition.
"herein", "hereof", "hereto", "hereunder" and similar terms contained in
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this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"including" means including without limiting the generality of any
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description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
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shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Indebtedness" of any Person means, without duplication, at any date:
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(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
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(b) all obligations relative to the face amount of all letters of
credit and banker's acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases which have
been or should be, in accordance with GAAP, recorded as Capital Lease
Obligations;
(d) all obligations of such Person pursuant to a Sale-Leaseback
Transaction which have been or should be, in accordance with GAAP, recorded
as Capital Lease Obligations;
(e) all obligations of such Person pursuant to a Guarantee except any
such Guarantee which the Company is contesting in good faith in appropriate
proceedings; and
(f) whether or not so included as liabilities in accordance with GAAP,
all obligations of such Person to pay the deferred purchase price of
property or services, and indebtedness (excluding prepaid interest thereon)
secured by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse.
provided, that Indebtedness shall not include sales of Permitted Receivables
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sold pursuant to Permitted Receivables Purchase Facilities and indemnification,
recourse or repurchase obligations thereunder. For all purposes of this
Agreement, the Indebtedness of any Person shall include all recourse
Indebtedness of any partnership or joint venture or limited liability company in
which such Person is a general partner or a joint venturer or a member.
"Indemnified Liabilities" is defined in Section 14.8.
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"Indemnified Parties" is defined in Section 14.8.
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"Interest Period" shall mean:
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(a) With respect to any LIBOR Advances, the period commencing on the
date such Advances are made and ending on the numerically corresponding day
in the first, second, third or sixth calendar month thereafter, as the
Company may select as provided in Section 3.1 hereof, except that each such
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Interest Period which commences on the last Business Day of a calendar
month (or on any day for which there is no numerically corresponding day in
the appropriate subsequent calendar month) shall end on the last Business
Day of the appropriate subsequent calendar month; and
(b) With respect to any Reference Rate Advances, the period commencing
on the date such Advances are made and ending on such date not more than 90
days thereafter, as the Company may select as provided in Section 4.1
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hereof.
Notwithstanding the foregoing, (i) each Interest Period which would otherwise
end on a day which is not a Business Day shall end on the next succeeding
Business Day (or, in the case of an Interest Period for LIBOR Advances, if such
next succeeding Business Day falls in the next succeeding calendar month, on the
next preceding Business Day) and such extension or
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adjustment shall be reflected in the computation of interest; (ii) the Company
shall not be permitted to select Interest Periods to be in effect at any one
time which have expiration dates occurring on more than ten different dates; and
(iii) no Interest Period may end later than the Maturity Date.
"Lenders" is defined in the preamble.
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"LIBOR" or the "LIBOR Rate" shall mean, on any day and in relation to the
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Term for any LIBOR Advance, the rate per annum equal to the average of the
offered quotations appearing on Telerate Page 3750 (or if such Telerate Page
shall not be available, any successor or similar service as may be selected by
the Agent and the Company) as of 11:00 a.m., London time (or as soon thereafter
as practicable), on the second Business Day before (and for value on) the
proposed Drawdown Date for such Advance. If none of such Telerate Page 3750 nor
any successor or similar service is available, then "LIBOR" or the "LIBOR Rate"
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shall mean, on any day and in relation to the Term for any LIBOR Advance, the
rate per annum (rounded upwards, if necessary, to the next multiple of 1/100th
of one percent per annum) determined by the Agent to be equal to the average of
the respective rates quoted to the Agent by each of the Reference Lenders as the
rate at which it would offer deposits in Dollars for a period equal to the Term
of, and in a principal amount comparable to, such proposed Advance to prime
banks in the London interbank market of Dollar deposits at or about 11:00 a.m.
London time (or as soon thereafter as practicable) on the second Business Day
before (and for value on) the proposed Drawdown Date for such Advance. If any
Reference Lender fails to (or notifies the Agent that it is or will be unable
to) advise the Agent of any rate referred to above, or is not participating in
such LIBOR Advance to be made hereunder, then the relevant LIBOR Rate shall be
determined by the Agent on the basis of the rate or rates quoted to it by the
other Reference Lenders, provided that if the Advance is a LIBOR Advance and
only one Reference Lender provides a rate quote, the Advance shall be governed
by Section 8.10 hereof. Each determination of the LIBOR Rate shall be conclusive
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and binding, absent manifest error.
"LIBOR Advance Request" shall mean a request for a LIBOR Advance made in
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accordance with Article 3 and substantially in the form of Exhibit B.
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"LIBOR Advances" shall mean an advance in Dollars made available to the
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Company pursuant to Article 3 with interest rates determined on the basis of the
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LIBOR Rate.
"Lien" shall mean, with respect to any asset, any mortgage, lien, pledge,
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charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, the Company or any of its Subsidiaries shall
be deemed to own subject to a Lien any asset which it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.
"Loan Document" means this Agreement, the Notes, each Advance Request, and
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any other agreement, document or instrument from time to time executed and
delivered pursuant to and in connection with any of the foregoing.
"Majority Lenders" shall mean, at any time while Commitments are in effect,
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Lenders having at least 51% of the aggregate amount of the Commitments and, at
any time while no
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Commitments are in effect, Lenders holding at least 51% of the outstanding
aggregate principal amount of the Advances.
"Material Adverse Effect" means with respect to any matter that such matter
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would reasonably be expected to have a material and adverse effect on the
assets, business, properties or financial condition of the Company or the
Company and its Subsidiaries, taken as a whole, or on the ability of the Company
to perform its obligations under any of the Loan Documents.
"Maturity Date" shall mean the earlier of (i) May 2, 2005 and (ii) the date
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of termination of the obligations and Commitments under this Agreement by
prepayment, cancellation, acceleration or otherwise.
"Moody's" shall mean Moody's Investors Service, Inc. and any successor
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thereto that is a nationally-recognized rating agency.
"Multiemployer Plan" shall mean a Plan defined as such in Section 3(37) of
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ERISA with respect to which the Company or a Significant Subsidiary may have
liability and which is covered by Title IV of ERISA.
"1934 Act Reports" shall mean the Company's Form 10K, dated December 31,
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2001, and all subsequent documents filed with the United States Securities and
Exchange Commission (or any governmental agency substituted therefor) pursuant
to Section 13 of the Securities Exchange Act of 1934 (or any other reports
substituted therefor that contain substantially the information required to be
contained in such reports on the date hereof), copies of all of which 1934 Act
Reports through the date of this Agreement have been delivered by the Company to
the Agent.
"Net Tangible Assets" shall mean the aggregate amount of assets (less
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applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities (other than the current portion of funded
indebtedness) and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense (to the extent included in such aggregate
amount of assets) and other like intangibles (except regulatory assets recorded
on the balance sheet in accordance with GAAP).
"Note" shall mean a promissory note in substantially the form of Exhibit A
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hereto (as such promissory note may be amended, endorsed or otherwise modified
from time to time), duly executed and delivered to the Agent by the Company for
the account of a Lender and payable to the order of such Lender in the amount of
its Commitment, including any amendment, modification, renewal or replacement of
such promissory note.
"Obligations" means all obligations (monetary or otherwise) of the Company
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arising under or in connection with this Agreement, the Notes and each other
Loan Document.
"Overnight Funds Period" shall mean a period of one or more consecutive
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days during which the Overnight Funds Rate exceeds the rates described in
clauses (a)(i) and (a)(ii) of the definition "Reference Rate." Upon the making,
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continuing, or converting of any applicable Advance during any such period, the
Agent shall give prompt notice to the Company and the Lenders of the
commencement and termination of such Overnight Funds Period and the Overnight
Funds Rate for such period.
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"Overnight Funds Rate" shall mean, for any Overnight Funds Period, a
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fluctuating interest rate per annum equal for each day during such period to the
rate of interest offered in the interbank market to the Agent as the overnight
Federal Funds Rate as of, at or about 10:00 a.m., New York, New York time on
such day (or if such day is not a Business Day, for the next preceding Business
Day) plus 1/2% per annum.
"Payment Office" shall mean the office of The Royal Bank of Scotland PLC
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located at 101 Park Ave, 12th Floor, New York, NY 10178, Attention: Juanita
Baird, or such other office or branch of a financial institution located in New
York City, New York as the Agent may from time to time designate by notice to
the Company and the Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any entity
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succeeding to any or all of its functions under ERISA.
"Permitted Receivables" shall mean all obligations of any obligor (whether
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now existing or hereafter arising) under a contract for sale or transportation
of natural gas or other goods or services by the Company or any of its
Subsidiaries, which shall include any obligation of such obligor (whether now
existing or hereafter arising) to pay demand charges based on actual or
estimated peak usage of natural gas by such obligor and any obligation of such
obligor (whether now existing or hereafter arising) to pay interest, finance
charges or amounts with respect thereto, and, with respect to any of the
foregoing receivables or obligations, (i) all of the interest of the Company or
any of its Subsidiaries in the goods (including returned goods and goods
constituting natural gas) the sale of which gave rise to such receivable or
obligation after the passage of title thereto to any obligor, (ii) all other
Liens and property subject thereto from time to time purporting to secure
payment of such receivables or obligations, and (iii) all guarantees, insurance,
letters of credit and other agreements or arrangements of whatever character
from time to time supporting or securing payment of any such receivables or
obligations.
"Permitted Receivables Purchase Facility" shall mean any agreement of the
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Company or any of its Subsidiaries providing for sales, transfers or conveyances
of Permitted Receivables purporting to be sales (and considered sales under
GAAP) that do not provide, directly or indirectly, for recourse against the
seller of such Permitted Receivables (or against any of such seller's
Affiliates) by way of a guaranty or any other support arrangement, with respect
to the amount of such Permitted Receivables (based on the financial condition or
circumstances of the obligor thereunder), other than such limited recourse as is
reasonable given market standards for transactions of a similar type, taking
into account such factors as historical bad debt loss experience and obligor
concentration levels.
"Person" shall mean an individual, a corporation, a company, a voluntary
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association, a partnership, a trust, an unincorporated organization, a
government or any agency, instrumentality or political subdivision thereof, or
other entity.
"Plan" shall mean an employee benefit or other plan established or
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maintained by the Company or any of its Subsidiaries with respect to which the
Company or any Subsidiary may have any liability and which is covered by Title
IV of ERISA, other than a Multiemployer Plan.
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"Principal Office" shall mean the office of the Agent, as set forth on the
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signature pages hereof, or such substitute office of which it may from time to
time notify the Company and the Lenders.
"Principal Property" shall mean any natural gas pipeline, natural gas
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gathering system or gas storage facilities located in the United States,
including any fixed, tangible natural gas facilities directly related to the
transportation, storage or distribution of natural gas, except any such property
that in the opinion of the Board of Directors of the Company is not of material
importance to the business conducted by the Company and its consolidated
Subsidiaries taken as a whole.
"Principal Subsidiary" shall mean any Subsidiary which owns a Principal
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Property.
"Prior Indebtedness" has the meaning specified in Recital A hereof.
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"Quarterly Dates" shall mean the last day of each March, June, September
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and December, the first of which shall be the first such day after the date of
this Agreement, provided that, if any such date is not a Business Day, the
relevant Quarterly Date shall be the next succeeding Business Day.
"Rating Agency" shall mean either of S&P or Moody's.
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"RBS" is defined in the preamble.
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"Reference Lenders" shall mean the Agents.
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"Reference Rate" shall mean (a) on any date and with respect to all
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Reference Rate Advances other than those dates and Advances described in clause
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(b) of this definition, a fluctuating rate of interest per annum equal to the
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higher of (i) the Base Rate and (ii) the Federal Funds Rate most recently
determined by the Agent plus 1/2% per annum; or (b) on any date occurring during
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any Overnight Funds Period, but with respect only to Reference Rate Advances
made, the Overnight Funds Rate. The Reference Rate is not necessarily intended
to be the lowest rate of interest determined by the Agent in connection with
extensions of credit. Changes in the rate of interest on that portion of any
Advances maintained as Reference Rate Advances shall take effect simultaneously
with each change in the Reference Rate. The Agent shall give notice promptly to
the Company and the Lenders of changes in the Reference Rate.
"Reference Rate Advance" shall mean an advance in Dollars made available to
----------------------
the Company pursuant to Article 4.
---------
"Reference Rate Advance Request" shall mean a request for a Reference Rate
------------------------------
Advance made in accordance with Article 4 and substantially in the form of
---------
Exhibit C.
- ---------
"Regulation D" means Regulation D of the Board of Governors of the Federal
------------
Reserve System from time to time in effect and shall include any successor or
other regulation or official interpretation of said Board of Governors or any
successor Person relating to reserve requirements imposed by the Federal Reserve
System or any successor Person.
11
"Regulation U" means Regulations T, U or X of the Board of Governors of the
------------
Federal Reserve System from time to time in effect and shall include any
successor or other regulations or official interpretation of said Board of
Governors or any successor Person relating to the extension of credit for the
purpose of purchasing or carrying margin stocks imposed by the Federal Reserve
System or any successor Person.
"Regulatory Change" shall mean, with respect to any Lender, any change
-----------------
after the date of this Agreement in United States federal, state or foreign laws
or regulations (including Regulation D) or the adoption or making after such
date of any interpretations, directives or requests applying to a class of banks
including such Lender of or under any United States federal or state, or any
foreign, laws or regulations (whether or not having the force of law but
compliance with which is expected) by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
"Repayment Date" shall mean, in relation to any LIBOR Advance, the last day
--------------
of the Term thereof specified in the applicable LIBOR Advance Request, and in
relation to any Reference Rate Advance, the Maturity Date.
"Reserve Requirement" shall mean, for any LIBOR Advances, on the date of
-------------------
such determination, the average maximum reserve percentage (expressed as a
decimal, rounded upward to the nearest 1/100th of 1%) at which reserves
(including any marginal, supplemental or emergency reserves) are required to be
maintained during the Interest Period thereof under Regulation D by member banks
of the Federal Reserve System in New York City with deposits exceeding one
billion Dollars against "Eurocurrency liabilities" (as such term is used in
Regulation D). Without limiting the effect of the foregoing, the Reserve
Requirement as to any Lender shall reflect any other reserves required to be
maintained by such Lender by reason of any Regulatory Change against (i) any
category of liabilities which includes deposits by reference to which the LIBOR
Rate is to be determined or (ii) any category of extensions of credit or other
assets which include either type of LIBOR Advance.
"Resource Conservation and Recovery Act" means the Resource Conservation
--------------------------------------
and Recovery Act, 42 U.S.C. Section 690, et seq., as in effect from time to
-- ---
time.
"S&P" shall mean Standard & Poor's Ratings Group and any successor thereto
---
that is a nationally-recognized rating agency.
"Sale-Leaseback Transaction" means an arrangement pursuant to which the
--------------------------
Company or a Principal Subsidiary now owns or hereafter acquires a Principal
Property, sells or transfers it to a Person, and rents or leases it back from
the Person.
"Stockholders' Equity" shall mean, as of the time any determination thereof
--------------------
is to be made, the sum of the Company's capital stock (which shall exclude
treasury stock and any capital stock subject to mandatory redemption by the
holder thereof) and additional paid-in capital plus retained earnings (minus
---- -----
accumulated deficit), all as shown on the consolidated balance sheet of the
Company and its Subsidiaries and based on GAAP as in effect on the date of such
determination.
12
"Subsidiary" shall mean any corporation of which at least a majority of the
----------
outstanding shares of stock having by the terms thereof ordinary voting power to
elect a majority of the board of directors of such corporation (irrespective of
whether or not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned by the Company
and/or one or more of its Subsidiaries; "Wholly-Owned Subsidiary" shall mean any
-----------------------
such corporation of which all of such shares, other than directors' qualifying
shares, are so owned.
"Tax Certificate" shall mean a certificate substantially in the form set
---------------
out in Exhibit D and duly signed by a Lender.
---------
"Term" shall mean: (i) in relation to any LIBOR Advance, the period from
----
its Drawdown Date until its Repayment Date as specified in the LIBOR Advance
Request relating thereto; and (ii) in relation to any Reference Rate Advance,
the period from its Drawdown Date until its Repayment Date; provided, however,
-------- -------
that if any Term would otherwise end on a day which is not a Business Day, such
Term shall be extended to the next succeeding day which is a Business Day
unless, in the case of a LIBOR Advance, the result of such extension would be to
carry such Term over into the next calendar month, in which case such Term shall
end on the immediately preceding Business Day.
"Total Capitalization" shall mean the sum, at the time outstanding and
--------------------
without duplication, of (i) Total Debt, plus (ii) Stockholders' Equity.
"Total Commitments" shall mean the aggregate from time to time of the
-----------------
Lenders' Commitments.
"Total Debt" shall mean on a consolidated basis for the Company and its
----------
Subsidiaries at any time a determination thereof is to be made, the sum without
duplication of: (a) indebtedness for borrowed money, all obligations evidenced
by bonds, debentures, notes or other similar investments, and purchase money
obligations which in accordance with GAAP would be shown on the consolidated
balance sheet of the Company and its Subsidiaries as a liability, and (b) all
obligations of such Person as lessee under leases which have been or should be,
in accordance with GAAP, recorded as Capital Lease Obligations.
"Transfer Certificate" shall mean a certificate substantially in the form
--------------------
set out in Exhibit F and duly signed by a Lender and a transferee.
---------
"United States" or "U.S." means the United States of America, its fifty
------------- ----
States and the District of Columbia.
"Voting Stock" shall mean, in respect of a business entity, stock of any
------------
class or classes, or equivalent interest, if the holders of the stock of such
class or classes or equivalent interests, are ordinarily, in the absence of
contingencies, entitled to vote for the election of the directors (or persons
performing similar functions) of such business entity, even though the right so
to vote has been suspended by the happening of such contingency, but does not
include stock of any class or classes the holders of which are entitled so to
vote only upon the happening of a contingency.
13
Section 1.2 Other References. Any reference in this Agreement to:
----------------
(i) any of the "Company," the "Agent", the "Agents", the
"Co-Syndication Agents", the "Co-Documentation Agents" or the "Lenders" shall be
construed so as to include their respective successors, permitted assigns and,
in the case of the Lenders, transferees;
(ii) a "Section" or "Exhibit" is a reference to a Section hereof
or an Exhibit hereto;
(iii) a "law" shall be construed to mean any law, including
common or customary law and any constitution, decree, judgment, legislation,
order, ordinance, regulation, rule, statute, treaty or other legislative or
regulatory measure, in each case of any jurisdiction whatever;
(iv) a statute shall be construed as a reference to such statute
as amended or reenacted from time to time;
(v) "tax" shall be construed so as to include any tax, levy,
impost, duty or other charge of a similar nature (including, without limitation,
any penalty or interest payable in connection with any failure to pay or any
delay in paying any of the same); and
(vi) a time of day is, unless otherwise stated, a reference to
New York, New York time.
Section 1.3 Other Agreements. Unless otherwise specified, any reference in
----------------
this Agreement to another agreement shall be construed as a reference to that
other agreement as the same may have been, or may from time to time be, amended
or supplemented.
Section 1.4 Headings. Section and Exhibit headings are for ease of
--------
reference only.
Section 1.5 Accounting Terms. All accounting terms not specifically defined
----------------
herein shall be construed in accordance with GAAP.
ARTICLE 2
THE FACILITY
Section 2.1 Grant of Facility. The Lenders hereby grant to the Company an
-----------------
advance facility, pursuant to which, and upon the terms and subject to the
conditions herein set out.
(i) the Lenders agree to make LIBOR Advances to the Company under
the Facility in accordance with Article 3; and
---------
(ii) the Lenders agree to make Reference Rate Advances to the
Company under the Facility in accordance with Article 4.
---------
14
Section 2.2 Maximum Outstandings. Subject to cancellation and reduction in
--------------------
accordance with the terms hereof, the maximum aggregate principal amount of the
Facility which may be utilized at any time for Advances is $125,000,000. In no
event shall the aggregate Advance Outstandings for all Lenders at any time
exceed the principal amount of $125,000,000 or such lesser amount as from time
to time may result from any reduction pursuant to Section 2.5 hereof, or for
-----------
each Lender at any time exceed such Lender's Commitment Proportion as in effect
from time to time.
Section 2.3 [Intentionally omitted].
Section 2.4 Nature of Lenders' Obligations. The obligations of the Lenders
------------------------------
hereunder are several and not joint and no Lender shall be responsible for the
obligation or Commitment of any other Lender hereunder. Nothing herein
constitutes a partnership, joint venture or other common purpose enterprise with
respect to the relationship between the Lenders (except to the extent to which
the Agent is authorized to act as such). The failure of any Lender to perform
its obligations hereunder shall not relieve any other Lender from its
obligations hereunder, nor shall the Agent or any other Lender be liable for the
failure by such Lender to perform its obligations hereunder. This Agreement is
not intended to, and shall not be construed so as to, confer any right or
benefit upon any Person other than the parties to this Agreement and their
respective successors and assigns.
Section 2.5 Changes in Commitments. The Company shall have the right in
----------------------
accordance with Section 7.1 hereof to terminate or reduce the amount of the
-----------
Commitments at any time or from time to time to an amount not less than the
Advance Outstandings, if any, at the effective date of such termination or
reduction, upon not less than three (3) Business Days' prior notice to the Agent
(which shall promptly notify the Lenders) of each such termination or reduction,
which shall specify the effective date thereof and the amount of any such
reduction (which shall not be less than $3,000,000 and, if more than $3,000,000,
in integral multiples of $1,000,000) and shall be irrevocable and effective only
upon receipt by the Agent. The Commitments once terminated or reduced may not be
reinstated.
Section 2.6 Fees. The Company agrees to pay the fees set forth in this
----
Section 2.6. All such fees shall be non-refundable.
- -----------
(a) Facility Fee. The Company shall pay to the Agent, for the account
------------
of each Lender, a facility fee on such Lender's Commitment, without regard to
usage, for the period from and including the Effective Date to and excluding the
date such Commitment is terminated, at a rate per annum equal to that set forth
below opposite the Applicable Rating Level times such Lender's Commitment.
- -------------------------------
Applicable
Rating Level Facility Fee
- -------------------------------
Level I 0.125%
- -------------------------------
Level II 0.150%
15
- -------------------------------
Level III 0.175%
- -------------------------------
Level IV 0.200%
- -------------------------------
Level V 0.250%
- -------------------------------
Level VI 0.300%
- -------------------------------
The accrued facility fee shall be payable in arrears on the Quarterly Dates and
on the Maturity Date based on the average total Commitments during such period.
(b) Administrative Agency Fees. The Company shall pay to the Agent,
--------------------------
for the Agent's own account, an administrative agency fee or such other fees as
previously agreed to by the Company and the Agent in writing (as such writing
may hereafter be amended, supplemented, restated or otherwise be modified or in
effect).
Section 2.7 Lending Offices. The Advances of each type made by each Lender
---------------
shall be made and maintained at such Lender's Facility Office for Advances of
such type.
Section 2.8 Prepayments. The Company may prepay Advances, provided that it
-----------
shall give notice to the Agent (which shall promptly notify the Lenders) of such
intended prepayment on or before 11:00 a.m. of the proposed date of prepayment
in the case of Reference Rate Advances, or upon three Business Days' prior
notice, in the case of LIBOR Advances, to the Agent (which shall promptly notify
the Lenders), which notice shall specify the prepayment date (which shall be a
Business Day) and the amount of the prepayment (which shall be not less than
$3,000,000 and, if more than $3,000,000, in integral multiples of $1,000,000)
and shall be irrevocable and effective only upon receipt by the Agent, provided
that interest on the principal prepaid, accrued to the prepayment date, and any
amounts payable pursuant to Section 8.11 hereof in connection therewith, shall
------------
be paid on the prepayment date.
Section 2.9 Notes. The Advances made by a Lender hereunder shall be
-----
evidenced by Notes payable to the order of such Lender. The Company hereby
irrevocably authorizes each Lender to make (or cause to be made) appropriate
notations on the grid attached to such Lender's Notes (or on any continuation of
such grid), which notations, if made, shall evidence, inter alia, the date of,
----- ----
the outstanding principal of, and the interest rate and Interest Period
applicable to the Advances evidenced thereby. Such notations shall be conclusive
and binding on the Company absent manifest error; provided, however, that the
-------- -------
failure of any Lender to make any such notations shall not limit or otherwise
affect any Obligations of any Company. Upon the written request of the Company,
a Lender shall provide a written summary to the Company of the notations made on
such Notes with respect to the Advances, if any, of such Lender.
Section 2.10 Repayment. With respect to Advances, the Company shall repay
---------
the principal amount of (a) each Reference Rate Advance, on the Maturity Date
and (b) each LIBOR Advance, on the earlier of (i) the last day of the Term for
such Advance or (ii) the Maturity Date.
16
ARTICLE 3
LIBOR ADVANCES
Section 3.1 LIBOR Advance Requests. Except as otherwise provided herein,
----------------------
the Company may request the making of a LIBOR Advance in Dollars under the
Facility prior to the Maturity Date by the delivery to the Agent (which shall
promptly notify the Lenders) no later than 11:00 a.m. on the third Business Day
before the proposed Drawdown Date for such LIBOR Advance of a duly completed
LIBOR Advance Request. Each LIBOR Advance Request delivered to the Agent
pursuant to this Section 3.1 shall be irrevocable and shall specify:
-----------
(i) the proposed Drawdown Date;
(ii) the principal amount of the proposed LIBOR Advance, which
shall be (a) a minimum amount of $3,000,000 and, if more
than $3,000,000, in additional integral multiples of
$1,000,000; and (b) in any event not more than the Adjusted
Available Facility Amount; and
(iii) the Term of the proposed LIBOR Advance, which shall be a
period of one, two, three or six months and shall have a
Repayment Date occurring on or before the Maturity Date.
Section 3.2 Making of LIBOR Advances. If the Company requests a LIBOR
------------------------
Advance in accordance with Section 3.1 hereof, then, on the proposed Drawdown
-----------
Date for such LIBOR Advance, and subject to Sections 8.8 and 8.10 hereof, each
------------ ----
Lender shall, no later than 1:00 p.m. on such Drawdown Date, make available to
the Company in accordance with Section 6.2 hereof the amount of such Lender's
-----------
participation in such LIBOR Advance. The amount which each Lender shall be
required to contribute to a LIBOR Advance shall be an amount equal to such
Lender's Commitment Proportion of such LIBOR Advance; provided, however, that if
-------- -------
the amount of a Lender's Commitment is reduced in accordance with the terms
hereof after the Agent has received the LIBOR Advance Request for such LIBOR
Advance, then such Lender's participation in such LIBOR Advance, and the amount
of such LIBOR Advance, shall be reduced accordingly.
Section 3.3 Interest on LIBOR Advances. Each LIBOR Advance shall accrue
--------------------------
interest during its Term from and including the Drawdown Date to but not
including the Repayment Date for such LIBOR Advance at the rate per annum equal
to the sum of the Adjusted LIBOR Rate plus the Applicable Margin. The Company
shall pay interest on the principal amount of each LIBOR Advance in arrears on
the Repayment Date for such LIBOR Advance; provided, however, that if the Term
-------- -------
of a LIBOR Advance is more than three months or 90 days, as the case may be, the
Company shall pay interest on such LIBOR Advance quarterly in arrears, each such
interest payment (except the last) payable on the last day of each three
calendar month interval during the Term thereof and the last on the Repayment
Date for such LIBOR Advance. The Agent shall notify the Company and the Lenders
of its determination of the LIBOR Rate for each LIBOR Advance and the amount of
interest due on the Repayment Date and on any quarterly payment date, if
applicable, promptly after such determination has been made as herein set forth;
17
provided, however, that the failure to give such notices shall in no way affect
- -------- -------
the obligation of the Company to pay the amounts specified in this Section 3.3.
-----------
ARTICLE 4
REFERENCE RATE ADVANCES
Section 4.1 Reference Rate Advance Requests. Except as otherwise provided
-------------------------------
herein, the Company may request the making of Reference Rate Advances in Dollars
prior to the Maturity Date under the Facility by the delivery to the Agent
(which shall promptly notify the Lenders) no later than 11:00 a.m. on such
Business Day, of a duly completed Reference Rate Advance Request. Each Reference
Rate Advance Request delivered to the Agent pursuant to this Section 4.1 shall
-----------
be irrevocable and shall specify:
(i) the proposed Drawdown Date; and
(ii) the principal amount of the proposed Reference Rate Advance,
which shall be: (a) a minimum amount of $3,000,000 and, if
more than $3,000,000, in additional integral multiples of
$1,000,000; and (b) in any event not more than the Adjusted
Available Facility Amount.
Any Reference Rate Advance Request received after the deadline specified in this
Section 4.1 shall be deemed to have been received by the Agent as of 11:00 a.m.
- -----------
on the following Business Day.
Section 4.2 Making of Reference Rate Advances. If the Company requests a
---------------------------------
Reference Rate Advance in accordance with Section 4.1 hereof, then, on the
-----------
proposed Drawdown Date for such Reference Rate Advance, each Lender shall, no
later than 1:00 p.m. on such Drawdown Date, make available to the Company in
accordance with Section 6.2 hereof the principal amount of such Lender's
-----------
participation in such Reference Rate Advance and advise the Agent by telephone
and telex or facsimile of the Federal Reserve Bank and the wire number effecting
the transfer of such amount. The amount which each Lender shall be required to
contribute to a Reference Rate Advance shall be an amount equal to such Lender's
Commitment Proportion of such Reference Rate Advance; provided, however, that if
-------- -------
the amount of a Lender's Commitment is reduced in accordance with the terms
hereof after the Agent has received a Reference Rate Advance Request, then such
Lender's participation in such Reference Rate Advance, and the amount of such
Reference Rate Advance, shall be reduced accordingly.
Section 4.3 Interest on Reference Rate Advances. Each Reference Rate
-----------------------------------
Advance shall accrue interest during its Term from and including the Drawdown
Date to but not including the Repayment Date for such Reference Rate Advance at
the rate per annum equal to the Reference Rate, as determined by the Agent on a
daily basis during the Term of such Reference Rate Advance. The Company shall
pay interest on the principal amount of each Reference Rate Advance in arrears
on the Repayment Date for such Reference Rate Advance. The Agent shall notify
the Company and the Lenders of the initial determination of the Reference Rate
and of any changes thereto promptly after such determination has been made as
provided herein.
18
Section 4.4 Reference Rate Communication. Each communication to be made by
----------------------------
one Person to another pursuant to this Article 4 shall be made to that other
---------
Person at the telex or facsimile number and, as the case may be, telephone
number identified with its signature below (or other such telephone or telex or
facsimile number as such other Person shall by not less than five Business Days'
notice to the Agent have specified for this purpose).
ARTICLE 5
[INTENTIONALLY OMITTED]
ARTICLE 6
CURRENCY OF ACCOUNT AND PAYMENT
Section 6.1 Claims in Dollars. Each Lender agrees that, except as
-----------------
prohibited by the laws of the applicable jurisdiction, it shall express its
claim in any action or suit against the Company or any judgment or order
resulting therefrom in Dollars.
Section 6.2 Accounts for Payment. Unless otherwise expressly provided
--------------------
herein, all payments by the Company or any Lender to the Agent under this
Agreement, the Notes or any other Loan Document shall be made, without setoff,
deduction or counterclaim, in immediately available funds by the Company or such
Lender to the Agent at the Payment Office.
Section 6.3 Application of Payment. Subject to Section 6.5 hereof, each
---------------------- -----------
payment received by the Agent for the account of another Person pursuant to
Section 6.2 hereof shall:
- -----------
(i) in the case of a payment received for the account of the
Company, be made available by the Agent to the Company by application on the
date of receipt:
(a) first, in or toward payment of any amount due from the
Company hereunder (including without limitation, fees
and amounts payable under Article 8) other than the
---------
amounts referred to in clause (b) to the Person for
which such amount is due; and
(b) second, in or toward payment to the Lenders of such
amount as is required to repay the Advances, including
accrued interest thereon, which have fallen due, and if
insufficient to pay all principal and interest then due
thereon shall be applied first to payment of interest
and then to principal; and
(c) third, in payment to the Company's account number
064254 with Boston Safe Deposit and Trust Company at
Boston, Massachusetts or such other account with such
bank as the Company shall have previously notified in
writing to the Agent for this purpose; and
19
(ii) in the case of any other payment, promptly be made available
by the Agent to the Person for whose account such payment was received (in the
case of a Lender, for the account of its Facility Office) by transfer in like
funds as received to such account of such Person with such bank, as such Person
shall have previously notified in writing to the Agent for this purpose.
Section 6.4 No Set-Off. All payments made by the Company shall be made free
----------
and clear of and without any deduction for or on account of any set-off or
counterclaim or, except as otherwise provided in Section 8.1 hereof, any other
-----------
matter.
Section 6.5 Actual Receipt. Where a sum is to be paid hereunder to the
--------------
Agent for the account of another party hereto, the Agent shall not be obligated
to make the same available to that other party hereto until it has been able to
establish that it has actually received such sum, but if it does make the
payment available and it proves to be the case that it had not actually received
the sum it paid out, then, the party hereto to whom such sum was so made
available shall on request ensure that the amount so made available is refunded
to the Agent, and shall on demand indemnify the Agent against any cost or loss
it may have suffered or incurred by reason of its having paid out such sum prior
to its having received such sum at a rate per annum equal to the Federal Funds
Rate (or if the Person receiving such payment is the Company and such payment is
an Advance, at the rate of interest to be borne by such Advance), and, with
respect to any sums covered by a payment made pursuant to subsection 6.3(i)(a),
--------------------
this Section 6.5 shall apply as though the Company were the party hereto to whom
-----------
such sum was so made available. In addition, if any party hereto shall in error
receive any sum which should have been paid to any other party hereto, the
receiving party shall immediately arrange through the Agent to remit such amount
to the party entitled thereto with interest thereon at a rate per annum equal to
the Federal Funds Rate if not remitted by the receiving party on the date
received.
Section 6.6 Default Interest. The Company will pay to the Agent for the
----------------
account of each Lender interest at the applicable Default Rate on any principal
of any Advance made by such Lender, and (to the fullest extent permitted by law)
on any other amount payable by the Company hereunder to such Lender, which shall
not be paid in full when due (whether at its stated maturity, by acceleration or
otherwise), for the period commencing on the due date thereof until the same is
paid in full. Such interest shall be payable from time to time on demand of the
Agent.
ARTICLE 7
PRO RATA TREATMENT, COMPUTATIONS
Section 7.1 Pro Rata Treatment. Except to the extent otherwise provided
------------------
herein and as set forth in Section 8.7 hereof: (a) each borrowing from the
-----------
Lenders under Article 3 or 4 hereof shall be made from the Lenders, each payment
--------- -
of facility fee under Section 2.6 hereof shall be made for the account of the
-----------
Lenders, and each termination or reduction of the amount of the Commitments
under Section 2.5 hereof shall be applied to the Commitments of the Lenders, pro
-----------
rata according to the amounts of their respective Commitments; (b) each payment
or prepayment of principal of Advances by the Company shall be made for the
account of the Lenders pro rata in accordance with the respective unpaid
principal amounts of the Advances
20
held by the Lenders and then due and payable or then being partially repaid; and
(c) each payment of interest on Advances by the Company shall be made for the
account of the Lenders pro rata in accordance with the amounts of interest due
and payable to the respective Lenders.
Section 7.2 Computations. Interest on LIBOR Advances shall be computed on
------------
the basis of a year of 360 days and actual days elapsed (including the first day
but excluding the last day) occurring in the period for which payable and
interest on Reference Rate Advances and the facility fee shall be computed on
the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed (including the first day but excluding the last day) occurring in the
period for which payable.
ARTICLE 8
TAXES, YIELD PROTECTION AND ILLEGALITY
Section 8.1 Withholding. Each payment to be made by the Company hereunder
-----------
or in connection herewith to any other party hereto shall be made free and clear
of and without deduction or withholding for or on account of any tax, reserve,
levy or duty of, or imposed by, any governmental or taxing authority of or in
the United States or any political subdivision thereof, excluding, (a) in the
case of each Lender and Agent taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Lender or such
Agent (as the case may be) is organized or any political subdivision thereof and
(b) in the case of each Lender, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction of such Lender's Facility Office or any
political subdivision thereof; unless the Company is required by law to make
such a payment subject to the deduction or withholding of such tax, in which
case the amount payable by the Company in respect of which such deduction or
withholding is required to be made shall be increased to the extent necessary to
ensure that, after the making of such deduction or withholding, such other party
receives and retains (free from any liability in respect of any such deduction
or withholding) a net amount equal to the amount which it would have received
and so retained had no such deduction or withholding been made or required to be
made; provided, however, that the Company shall not be required to pay any
-------- -------
additional amount on account of any tax of, or imposed by, the federal
government of the United States pursuant to this Section to any Lender which (i)
is not entitled, on the date this Agreement is signed (or, in the case of a
transferee, on the date on which it signed the relevant Transfer Certificate, in
the case of an assignee of a Lender, on the date on which the assignment became
effective), to submit a United States Internal Revenue Service Form W-8ECI,
W-8BEN, W-8EXP or W-8IMY or any successor forms thereto relating to such Lender
and entitling it to receive all amounts, including fees, pursuant to this
Agreement without deduction or withholding, or (c) a certification substantially
in the form of the Tax Certificate, so as to meet its obligation to submit such
form or other certification pursuant to Section 8.2 hereof, or (ii) shall have
-----------
failed to submit such form or other certification which it is required to
deliver pursuant to Section 8.2 hereof and entitled to file under applicable
-----------
law. Any such additional amounts payable by the Company shall be deemed an
obligation of the Company hereunder.
Section 8.2 Tax Forms. Each of the Lenders hereby agrees, upon request of
---------
the Company:
21
(i) within 30 days of the date hereof or, if later, by the date
upon which the first utilization of the Facility is made, to deliver to the
Company, the Agent and any other Person specified by the Company as a Person
making a payment of any amount due hereunder (a "Withholding Agent"), one or
more of the following, as is applicable:
(a) two accurate and complete original signed copies of
United States Internal Revenue Service Forms W-8ECI,
W-8BEN, W-8EXP or W-8IMY; or
(b) a signed certificate substantially in the form of the
Tax Certificate; and
(ii) thereafter and from time to time (and, in particular, but
without limitation, not later than the date of the transfer or assignment to it
becoming effective, each transferee and each assignee or successor of a Lender
agrees) to the extent entitled, to submit to the Company, the Agent and any
other Withholding Agent such additional duly completed and signed copies of one
or the other of United States Internal Revenue Service Forms W-8ECI, W-8BEN,
W-8EXP or W-8IMY (or such successor forms as shall be adopted from time to time
by the relevant United States taxing authorities) or, to the extent entitled, of
such a certification as may be notified by the Company to such Lender and
required under then current United States law or regulations to avoid United
States Federal withholding taxes on payments in respect of all amounts to be
paid by the Company and received by such Lender pursuant to this Agreement.
Section 8.3 Tax Receipts. If at any time the Company is required by law to
------------
make any deduction or withholding from any amount payable by it hereunder or in
connection herewith (or if thereafter there is any change in the rates at which
or the manner in which such deductions or withholdings are calculated), the
Company shall promptly notify the Agent and each affected Lender thereof. If the
Company makes any payment hereunder or in connection herewith in respect of
which it is required by law to make any deduction or withholding, it shall pay
the full amount to be deducted or withheld to the relevant taxation or other
authority within the time allowed for such payment under applicable law and
shall promptly deliver to the Agent a receipt issued by such authority (or other
evidence reasonably satisfactory to the Agent) evidencing the payment to such
authority of all amounts so required to be deducted or withheld from such
payment.
Section 8.4 Change in Law. If as a result of (a) any change in law, or in
-------------
its interpretation or administration by any authority charged with the
interpretation or administration thereof, occurring after the date hereof or (b)
compliance with any request from or requirement of any governmental authority,
central bank or other fiscal, monetary or other comparable regulatory authority
(including, without limitation, any reserve or special deposit requirements
imposed by the Board of Governors of the Federal Reserve System or any other
authority referred to above), which request or requirement is first made or
imposed after the date hereof:
(i) any Lender incurs a cost or increase in cost as a result of
its having entered into or performing its obligations under this Agreement,
including its making, funding or maintaining all or any part of its Commitment
or any Advance; or
22
(ii) any Lender becomes liable to make any payment (other than a
tax which is a capital or franchise tax or is imposed on the net income of such
Lender) on or calculated by reference to the amount of Advances made or to be
made by it and/or any sum receivable by it hereunder; or
(iii) there is a reduction in the amount of any sum received or
receivable by any Lender in connection with its making any Advances hereunder,
then the Company shall from time to time upon demand by the Agent at the request
of any Lender in accordance with Section 8.7 hereof pay to the Agent for the
-----------
account of such Lender amounts sufficient to indemnify such Lender against, as
the case may be, (i) such cost or increased cost (or such proportion of such
cost or increased cost as is in the reasonable opinion of that Lender
attributable to its making, funding or maintaining its Commitment or any
Advance), (ii) such liability or (iii) such reduction. Such amounts may be
determined by using any reasonable averaging and attribution methods.
Section 8.5 Capital Adequacy. If after the date hereof, any Lender shall
----------------
have determined that (i) the adoption or implementation of any applicable law,
rule, regulation or guideline regarding capital adequacy, or any change therein,
or any change in the interpretation or administration thereof, by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or (ii) compliance by any Lender (or
its Facility Office) with any direction, requirement or request regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, affects or would affect the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender and such Lender (taking into consideration such Lender's
policies with respect to capital adequacy and such Lender's desired return on
capital) determines (which determination, absent manifest error, shall be
binding and conclusive on all parties) that the amount of such capital is
increased, or its rate of return on capital is reduced to a level below that
which such Lender could have achieved but for such adoption, implementation or
compliance, as a consequence of such Lender's obligations under this Agreement,
then, upon demand by such Lender through the Agent and in accordance with
Section 8.7 hereof, the Company shall immediately pay to the Agent for the
- -----------
account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender for such increase or
reduction.
Section 8.6 Regulation D. If as a result of Regulation D of the Board of
------------
Governors of the Federal Reserve System, as in effect from time to time on and
after the date of this Agreement, or in the application, interpretation or
administration thereof by such Board of Governors, there shall be any increased
cost to any Lender in connection with maintaining all or any part of its
obligations and Commitment hereunder or of making, funding or maintaining all or
part of any Advance made or to be made, then the Company shall, from time to
time, upon demand by such Lender (through the Agent) in accordance with Section
-------
8.7 hereof, pay to the Agent for the account of such Lender additional amounts
- ---
sufficient to indemnify such Lender against such cost. The amounts of any such
costs shall be determined by such Lender in good faith on a basis that allocates
the cost incurred by such Lender in connection with the making, funding or
maintaining of advances made by such Lender to any borrowers, and resulting from
such Lender's compliance with such Regulation D, ratably among such borrowers.
23
Section 8.7 Notice of Claim. A Lender intending to make a claim pursuant to
---------------
Sections 8.4, 8.5 or 8.6 hereof shall deliver to the Company through the Agent,
- ------------ --- ---
promptly after becoming aware of the circumstances giving or which shall give
rise to the claim, notice of the Lender's intention to make a claim, specifying
the event by which it is or shall be entitled to make such claim and setting out
in reasonable detail the expected basis and computation of such claim. In the
case of a cost, increased cost, liability or reduction in amounts received or
receivable incurred as described in Section 8.4 or 8.5 hereof, such Lender may
----------- ---
make a claim on the Company through the Agent for such cost, increased cost,
liability or reduction, which claim shall include a certificate setting forth in
reasonable detail the basis and computation of the claim and such evidence
substantiating the claim as may be reasonably available to such Lender. In the
case of a cost, increased cost or liability incurred as described in Section 8.6
-----------
hereof, such Lender may make a claim on the Company through the Agent for such
cost, increased cost or liability, which claim shall be determined in accordance
with the last sentence of Section 8.6 hereof; and the Company shall promptly
-----------
indemnify such Lender through the Agent for the amount claimed from and as the
date such cost, increased cost or liability is incurred. If any Lender is owed
increased costs under Section 8.4, 8.5 or 8.6 above, the Company may, at its
----------- --- ---
sole expense and effort (unless such Lender withdraws its request for additional
compensation), if no Default then exists, (a) replace such Lender with another
commercial bank reasonably acceptable to the Agent provided that (i) the
obligations of the Company owing to the Lender being replaced (including such
increased costs) shall be paid in full to such Lender concurrently with such
replacement, (ii) the replacement commercial bank shall execute a document
satisfactory to the Agent pursuant to which it becomes a party hereto with a
Commitment equal to that of the Lender being replaced and shall make Advances in
the aggregate principal amount equal to the aggregate outstanding amount of the
Advances of the Lender being replaced, and (iii) upon such execution of such
documents referred to in clause (ii) and the payment of amounts referred to in
clause (i), the replacement commercial bank shall constitute a "Lender"
hereunder with a Commitment as so specified and the Lender being so replaced
shall no longer constitute a "Lender" hereunder except with respect to such
provisions hereunder which by their terms survive the termination of the
Agreement, or (b) terminate the Commitment of such Lender provided that (i) the
obligations of the Company owing to the Lender being terminated (including such
increased costs) shall be paid in full to such Lender concurrently with such
termination, (ii) the Total Commitments shall be reduced by the Commitment of
the terminated Lender, (iii) the Commitment Proportion of each Lender shall be
recalculated in accordance with the reduced Total Commitments, and (iv) the
Lender being so terminated shall no longer constitute a "Lender" hereunder
except for purposes of the provision which by their terms survive the
termination of this Agreement.
Section 8.8 Illegality. Notwithstanding any other provision of this
----------
Agreement, if any Lender shall determine (which determination shall, upon notice
thereof to the Company and the other Lenders, be conclusive and binding on the
Company) that the introduction of or any change in or in the interpretation of
any law makes it unlawful or any central bank or other governmental authority
asserts that it is unlawful for such Lender or its Facility Office to honor its
obligation to make or maintain LIBOR Advances hereunder, then such Lender shall
promptly notify the Company thereof (with a copy to the Agent) and such Lender's
obligation to make LIBOR Advances shall be suspended until such time as such
Lender may again make and maintain such type of LIBOR Advances (in which case
the provisions of Section 8.9 hereof shall be applicable).
-----------
24
Section 8.9 Reference Rate Advances pursuant to Section 8.8. If the
-----------------------------------------------
obligation of any Lender to make LIBOR Advances shall be suspended pursuant to
Section 8.8 hereof (Advances of such type being herein called "Affected
- ----------- --------
Advances"), all Advances which would otherwise be made by such Lender shall be
- --------
made instead as Reference Rate Advances (and, if an event referred to in Section
-------
8.8 hereof has occurred and such Lender so requests by notice to the Company
- ---
with a copy to the Agent, all Advances of such Lender then outstanding shall be
automatically converted into Reference Rate Advances on the date specified by
such Lender in such notice) and, to the extent that Affected Advances are so
made as (or converted into) Reference Rate Advances, all payments of principal
which would otherwise be applied to such Lender's Affected Advances shall be
applied instead to its Reference Rate Advances.
Section 8.10 Market Disruption. If, in relation to any LIBOR Advance, the
-----------------
Agent is unable to make the determination of the LIBOR Rate applicable thereto
required to be made by it as provided herein because (i) none of Telerate Page
3750 or any successor or similar service is available or the failure or
inability of at least two of the Reference Lenders to supply the quotation
necessary to make such determination, or (ii) if the Majority Lenders determine
(which determination, absent manifest error, shall be binding and conclusive on
all parties) that LIBOR for any Interest Period for a requested Advance will not
adequately reflect the cost to the Lenders of making, funding or maintaining an
Advance with interest based on such rates for such Interest Period, then the
Agent shall notify the Company and the Lenders that the Agent is unable to make
such determination and the reasons therefor by telephone or in writing no later
than 11:30 a.m. on the Drawdown Date therefor. If a LIBOR Advance was requested,
the Reference Rate shall be applicable to such LIBOR Advance, commencing on the
Drawdown Date therefor, unless the Company, no later than 10:00 a.m. on such
date, shall revoke such Advance Request.
Section 8.11 Compensation. The Company shall pay to the Agent for the
------------
account of each Lender, upon the written request of such Lender through the
Agent, such amount or amounts as shall be sufficient (in the reasonable opinion
of such Lender) to compensate it for any loss, cost or expense which such Lender
reasonably determines is attributable to:
(a) any payment or conversion of a LIBOR Advance made by such Lender
on a date other than the last day of the Interest Period for such LIBOR Advance;
or
(b) any failure by the Company to borrow a LIBOR Advance from such
Lender on the date for such borrowing specified in the relevant LIBOR Advance
Request given pursuant to Section 3.2 hereof.
-----------
Without limiting the effect of the preceding sentence, in the case of a LIBOR
Advance, such loss, cost or expense to any Lender shall be deemed to include an
amount determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Advance had
such event not occurred, at the Adjusted LIBOR Rate that would have been
applicable to such Advance, for the period from the date of such event to the
last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Advance), over (ii) the amount of interest which would
accrue on such principal amount for such period at the interest rate which such
Lender would bid were it to bid, at the commencement of such period, for Dollar
deposits of a comparable amount and period from other banks in the London
interbank
25
market; provided, however, that the Company shall have no obligation to make any
-------- -------
payment to any demanding party under this Section on account of any such loss,
cost or expense unless the Company receives notice of such loss, cost or expense
from the demanding party within twelve (12) months after they are incurred or
realized. The Company understands that such costs and losses may include,
without limitation, losses incurred by a Lender as a result of funding and other
contracts entered into by such Lender to fund a LIBOR Advance. Each Lender
demanding payment under this Section shall deliver to the Company, with a copy
to Agent, a certificate of an officer of such demanding party setting forth the
amount of costs and losses for which demand is made, which certificate shall set
forth in reasonable detail the calculation of the amount demanded. Such a
certificate so delivered to the Company shall constitute prima facie evidence of
such costs and losses.
ARTICLE 9
CONDITIONS PRECEDENT
Section 9.1 Closing. The first Advance Request may not be given unless the
-------
Agent has received all of the following documents (with copies for the Lenders
of all items except articles of incorporation and bylaws), each of which shall
be in form and substance satisfactory to the Agent and its counsel and shall be
delivered to the Agent on or prior to the date of the execution of this
Agreement:
(a) Certified copies of the articles of incorporation and bylaws of
the Company and all corporate action taken by the Company approving this
Agreement and borrowings by the Company hereunder (including, without
limitation, a certificate setting forth the resolutions of the board of
directors of the Company adopted in respect of the transactions contemplated
hereby).
(b) A certificate of the Company in respect of each of the officers
(with specimen signatures) (i) who is authorized to sign this Agreement, the
Notes, the other Loan Documents, or the Advance Request on behalf of the Company
and (ii) who shall, until replaced by another officer or officers duly
authorized for that purpose, act as its representative for the purposes of
signing documents and giving notices and other communications in connection with
this Agreement and the transactions contemplated hereby. The Agents and each
Lender may conclusively rely on such certificates until they receive notice in
writing from the Company to the contrary.
(c) A certificate of a senior officer of the Company to the effect
that (i) the representations and warranties made by the Company in Article 10
----------
hereof are true on and as of the date of this Agreement, (ii) the Company is not
in default in performance of any of its covenants in Article 11 to the extent
----------
they are to have been performed as of such date, (iii) no Material Adverse
Effect has occurred since December 31, 2001 and is continuing, and (iv) no
Default has occurred and is continuing as of the date of this Agreement.
(d) Written opinions of the Counsel for the Company acceptable to the
Agent, addressed to the Agents and the Lenders in substantially the form of
Exhibit E hereto, with such
- ---------
26
modifications, additions, alterations, exceptions, assumptions and provisions as
shall be acceptable to the Agent.
(e) The Notes, duly executed by the Company, payable to the order of
each of the Lenders.
(f) Certificates of good standing for the Company from California,
Oregon, Washington and Idaho.
(g) The Agent shall have received for its own account, or for the
account of each Lender, as the case may be, all fees, costs and expenses due and
payable pursuant to Sections 2.6 and 14.5.
------------ ----
(h) The Agent shall have received satisfactory proof of the Company's
termination of the Existing Credit Facility and any obligations of the Company
in connection therewith on the Effective Date.
(i) Such other instruments and documents as any of the Agent or its
counsel may have reasonably requested.
Section 9.2 Initial and Subsequent Advances. The obligation of each Lender
-------------------------------
to make Advances to the Company upon the occasion of each borrowing hereunder is
subject to the further conditions precedent that, as of the date of such
Advances and after giving effect thereto: (a) the principal amount of the
proposed Advances is not more than the Available Facility Amount at such time;
(b) no Default shall have occurred and be continuing; and (c) the
representations and warranties contained in Sections 10.1, 10.4, 10.5, 10.6,
------------- ---- ---- ----
10.7 and 10.9 are true and correct as of the date of such borrowing except for
- ---- ----
changes reflecting transactions permitted by this Agreement.
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agents and the Lenders that:
Section 10.1 Corporate Existence. Each of the Company and its active
-------------------
Subsidiaries: (a) is a corporation duly organized and validly existing and in
good standing under the laws of the jurisdiction of its incorporation; (b) has
all requisite corporate power, and has all governmental licenses,
authorizations, consents and approvals necessary to own its assets and carry on
its business as now being or as proposed to be conducted except where failure to
have such governmental licenses, authorizations, consents and approvals would
not have a Material Adverse Effect and; (c) is qualified to do business in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify would have a Material
Adverse Effect.
Section 10.2 Financial Condition. As of the Effective Date, the
-------------------
consolidated balance sheet and statement of consolidated capitalization of the
Company and its consolidated Subsidiaries as at December 31, 2001 and the
related statements of consolidated income, cash
27
flows and common stock equity, with the opinion thereon of Deloitte & Touche,
L.L.P., heretofore furnished to each of the Lenders, present fairly, in all
material respects, the consolidated financial position of the Company and the
consolidated Subsidiaries as at said date and the consolidated results of their
operations and cash flows for the fiscal year ended on said date, in conformity
with GAAP. Neither the Company nor any of its Subsidiaries had on said date any
material contingent liabilities, liabilities for taxes, unusual forward or
long-term commitments or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in said
financial statements as at said date. There has been no Material Adverse Effect
since December 31, 2001 except as disclosed in the 1934 Act Reports.
Section 10.3 Litigation. As of the Effective Date and except as disclosed
----------
in the 1934 Act Reports or in writing to the Agents and the Lenders, there are
no legal or arbitral proceedings or investigations, or any proceedings by or
before any governmental or regulatory authority or agency, now pending or (to
the knowledge of the Company) threatened against the Company or any of its
Subsidiaries which (i) the Company would be required to disclose in any 1934 Act
Report or (ii) would have a Material Adverse Effect.
Section 10.4 No Breach. The execution and delivery by the Company of this
---------
Agreement, the Notes, and the other Loan Documents, the consummation of the
transactions herein contemplated and compliance with the terms and provisions
hereof do not (a) conflict with or result in a breach of, or require any consent
under, (i) the articles of incorporation or bylaws of the Company, (ii) any
applicable law or regulation that is material to the Company and its
Subsidiaries, taken as a whole, (iii) any applicable order, writ, injunction or
decree of any court or governmental authority or agency that is material to the
Company and its Subsidiaries, taken as a whole, or (iv) any agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which it is bound or to which it is subject that is material to the Company and
its Subsidiaries, taken as a whole, or (b) result in the creation or imposition
of any Lien upon any of the revenues or assets of the Company or any of its
Subsidiaries pursuant to the terms of any such agreement or instrument.
Section 10.5 Corporate Action. The Company has all necessary corporate
----------------
power and authority to execute, deliver and perform its obligations under the
Agreement, the Notes and the other Loan Documents; and the execution, delivery
and performance by the Company of this Agreement, the Notes and the other Loan
Documents have been duly authorized by all necessary corporate action on its
part; and this Agreement, the Notes and the other Loan Documents have been duly
and validly executed and delivered by the Company and constitute its legal,
valid and binding obligation, enforceable in accordance with its terms, except
(a) as may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights in general,
and (b) as enforceability thereof may be subject to general principles of
equity, regardless of whether such enforceability is considered in a proceeding
at law or in equity.
Section 10.6 Approvals. No authorizations, approvals or consents of, and no
---------
filings or registrations with, any governmental or regulatory authority or
agency are necessary for the execution, delivery or performance by the Company
of this Agreement, the Notes or the other Loan Documents or for the validity or
enforceability thereof other than any filings which may
28
hereafter be required to be made in the future, the failure to make which shall
not render this Agreement invalid.
Section 10.7 Margin Stock. Neither the Company nor any of its Subsidiaries
------------
is engaged principally, or as one of its important activities, in the business
of extending credit for the purpose of purchasing or carrying margin stock or
margin securities (within the meaning of Regulation U of the Board of Governors
of the Federal Reserve System) and no part of the proceeds of any Advance
hereunder shall be used to acquire or carry any margin stock or margin
securities or extend credit to others for such purpose.
Section 10.8 ERISA. As of the Effective Date, the Company and each of its
-----
Subsidiaries have fulfilled their obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan and are in compliance
in all material respect with the presently applicable provisions of ERISA and
the Code, and have not incurred any liability to the PBGC or any Plan or
Multiemployer Plan.
Section 10.9 Pari Passu Status. Under applicable laws in force at the date
-----------------
hereof, the claims and rights of the Lenders against the Company under this
Agreement, the Notes or the other Loan Documents shall not be subordinate to,
and shall rank at least pari passu in all respects with, the claims and rights
---- -----
of any other holders of unsecured indebtedness of the Company.
Section 10.10 Environmental Matters. As of the Effective Date and except as
---------------------
disclosed in the 1934 Act Reports, the Company is in compliance with applicable
Environment Laws except for such non-compliance as would not have a Material
Adverse Effect.
Section 10.11 Investment and Holding Company Status.
-------------------------------------
(a) Neither the Company nor any of its Subsidiaries is an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940, as amended.
(b) The Company is not a "holding company" but is a "subsidiary
company" and an "affiliate" of a "holding company", PG&E Corporation, that is
exempt from all provisions, except Section 9(a)(2), of the Public Utility
Holding Company Act of 1935, as amended, and the execution, delivery and
performance by the Company of the Credit Agreement and the other Loan Documents
and its obligations thereunder do not violate any provision of such Act or any
rule or regulation thereunder.
ARTICLE 11
COVENANTS OF THE COMPANY
The Company agrees with the Agents and each Lender that so long as any of
the Commitments are in effect and until payment in full of all Advances
hereunder (other than pursuant to any continuing indemnification obligations
under this Agreement), all interest thereon and all other amounts payable by the
Company hereunder, the Company will perform the obligations set forth in this
Article 11:
- ----------
29
Section 11.1 Financial Statements. The Company shall deliver to the Agent,
--------------------
with sufficient copies for each Lender:
(a) as soon as available and in any event within 90 days after the end
of each of the first three fiscal quarterly periods of each fiscal year of the
Company, the consolidated balance sheet of the Company and its consolidated
Subsidiaries as of the end of such quarterly period and the related consolidated
statements of income and cash flows, for the respective three, six or nine
months then ended, set forth in the Company's quarterly reports on Form 10-Q (or
any other report substituted therefor that contains substantially the
information required to be contained in such reports on the date hereof): any
report other than a report filed with the Securities and Exchange Commission
shall be accompanied by a certificate of a financial or accounting officer of
the Company, which certificate shall state that said financial statements
present fairly, in all material respects, the consolidated financial position,
results of operations and cash flows of the Company and its consolidated
Subsidiaries in conformity with GAAP, as at the end of, and for, such period
(subject to normal year-end audit adjustments and provided that certain footnote
disclosure and other details required to be included in financial statements
prepared in conformity with GAAP but not normally included in interim, unaudited
financial statements need not be included in such interim financial statements);
(b) as soon as available and in any event within 120 days after the
end of each fiscal year of the Company, (1) the Company's Annual Report on Form
10-K for such fiscal year prepared in accordance with the requirements therefor
and filed with the Securities and Exchange Commission or, if such form is not
required to be filed by the Company, statements of consolidated income, cash
flows and common stock equity and preferred stock, if any, of the Company and
the consolidated Subsidiaries for such year and the related consolidated balance
sheet as at the end of such year, setting forth in each case in comparative form
the corresponding figures for the preceding fiscal year, in each case in
conformity with GAAP and accompanied by an opinion thereon of independent
certified public accountants of recognized national standing, and (2) a
certificate of such accountants stating that, in making the examination
necessary for their opinion, they obtained no knowledge, except as specifically
stated, of any Default;
(c) promptly upon their becoming available, and in any event within
fifteen (15) days after the filing thereof with any securities exchange or the
Securities and Exchange Commission or any successor agency, one copy of each
financial statement, report, notice or proxy statement sent by the Company, any
Subsidiary or any other Affiliate controlled by the Company to its public
shareholders, and of each regular or periodic report and any registration
statement (other than such reports and registration statements pertaining solely
to employee benefits, dividends, reinvestment and corporate plans), prospectus
or written communication in respect thereof filed by the Company, any Subsidiary
or any other Affiliate controlled by the Company with any such securities
exchange or the Securities and Exchange Commission or any successor agency;
(d) as soon as practicable, and in any event within thirty (30) days
after any of the events or conditions specified below with respect to any Plan
or Multiemployer Plan shall have occurred or exist with respect to any Plans, a
statement signed by a senior financial officer of the Company setting forth
details respecting such event or condition and the action, if any, which the
Company or any of its Subsidiaries proposes to take with respect thereto (and a
copy
30
of any report or notice required to be filed with or given to PBGC by the
Company or any of its Subsidiaries with respect to such event or condition):
(i) any reportable event, as defined in Section 4043(b) of ERISA
and the regulations issued thereunder, with respect to a
Plan, as to which PBGC has not by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified
within 30 days of the occurrence of such event (provided
that a failure to meet the minimum funding standard of
Section 412 of the Code or Section 302 of ERISA shall be a
reportable event regardless of the issuance of any waivers
in accordance with Section 412(d) of the Code);
(ii) a contribution failure sufficient to give rise to a lien
under Section 302(f) of ERISA;
(iii) the filing under Section 4041 of ERISA of a notice of
intent to terminate any Plan or the termination of any Plan;
(iv) the institution by PBGC of proceedings under Section 4042 of
ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by the
Company or any of its Subsidiaries of a notice from a
Multiemployer Plan that such action has been taken by PBGC
with respect to such Multiemployer Plan;
(v) the complete or partial withdrawal by the Company or any of
its Subsidiaries under Section 4201 or 4204 of ERISA from a
Multiemployer Plan, or the receipt by the Company or any of
its Subsidiaries of notice from a Multiemployer Plan that it
is in reorganization or insolvency pursuant to Section 4241
or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA; and
(vi) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Company or any of its
Subsidiaries to enforce Section 515 of ERISA, which
proceeding is not dismissed within 30 days;
(e) promptly after a vice president, the President or the Chairman of
the Board of the Company knows that any Default has occurred, a notice of such
Default, describing the same in reasonable detail;
(f) no later than ten (10) Business Days after the date of
promulgation thereof by such Rating Agency, notice of any change in rating by
any Rating Agency in respect of the Company's unsecured long-term debt, together
with the details thereof, and of any announcement by any Rating Agency that its
rating in respect of such unsecured long-term debt is "under review" or that any
such debt rating has been placed on a "CreditWatch List"(R) or "watch list" or
that any similar action has been taken by such Rating Agency; and
31
(g) from time to time such other information regarding the business,
affairs or financial condition of the Company or any of its Subsidiaries
(including, without limitation, any Plan and any reports or other information
required to be filed under ERISA) as any Lender or the Agents may reasonably
request.
In lieu of furnishing to Agent hard copies of the financial statements described
in paragraph (a) and (b) above, the Company may make such documents available to
------------- ---
Lenders at its website located at www.pge-nw.com and through the United States
Securities and Exchange Commission's EDGAR system ("EDGAR") or by transmitting
-----
such documents electronically to Lenders. Upon request of the Agent, the Company
shall provide to Agent hard copies of any documents delivered in connection with
the preceding sentence. Upon the receipt by Agent of any document from the
Company, the Agent shall provide to any Lender hard copies of such documents
upon request.
The Company shall furnish to the Agent, with sufficient copies for each Lender,
at the time it furnishes each set of financial statements pursuant to paragraph
(a) or (b) above, a certificate of a financial or accounting officer of the
Company (i) to the effect that no Default has occurred and is continuing (or, if
any Default has occurred and is continuing, describing the same in reasonable
detail), and (ii) setting forth in reasonable detail the computations necessary
to determine whether the Company is in compliance with Section 11.5 hereof as of
------------
the end of the respective fiscal quarter or fiscal year. The Agent shall furnish
promptly to each Lender a copy of the certificate delivered by the Company
pursuant to the prior sentence.
Section 11.2 Corporate Existence, Etc. (a) The Company shall, except as
------------------------
otherwise permitted under Section 11.4, preserve and maintain its corporate
------------
existence, and (b) the Company shall, and shall cause each of its active
Subsidiaries to: (i) preserve and maintain all of its material rights,
privileges and franchises, except to the extent that in the opinion of the
Company preservation and maintenance of any such material right, privilege or
franchise are not necessary for the operation of the Company's business; (ii)
comply with the requirements of all applicable laws (including, without
limitation, Environmental Laws), rules, regulations and orders of governmental
or regulatory authorities if failure to comply with such requirements would
materially and adversely affect the ability of the Company to perform its
obligations under this Agreement, except for any failure to comply with the
requirements of any such applicable law, rule, regulation or order which is
being contested in good faith and by proper actions or proceedings and against
which adequate reserves are being maintained to the extent required under GAAP;
(iii) pay and discharge all taxes, assessments and governmental charges or
levies imposed on it or on its income or profits or on any of its property prior
to the date on which penalties attach thereto, except for any such tax,
assessment, charge or levy the payment of which is being contested in good faith
and by proper actions or proceedings and against which adequate reserves are
being maintained to the extent required under GAAP; (iv) maintain all of its
material properties used or useful in its business in good working order and
condition, ordinary wear and tear excepted, except to the extent that in the
opinion of the Company any such property is not necessary for the operation of
the Company's business; (v) permit representatives of any Lender or the Agent,
during normal business hours and on reasonable advance notice, to examine its
books and records and to make copies and extracts therefrom, to inspect its
properties (subject to reasonable safety and security procedures of the
Company), and to discuss its business and affairs with its officers (subject to
any reasonable proprietary and
32
confidentiality agreements of or binding upon the Company and its Subsidiaries),
all to the extent reasonably requested by such Lender or the Agent (as the case
may be); and (vi) maintain, with financially sound and reputable insurers,
insurance with respect to all property and business of a character usually
insured by corporations engaged in the same or similar business similarly
situated against such liabilities, casualties, risks and contingencies and in
such types and amounts as customary in the case of corporations engaged in the
same or similar business similarly situated.
Section 11.3 Use of Proceeds. The Company shall use (i) all or any portion
---------------
of the initial Advance to discharge all outstanding obligations under the
Existing Credit Agreement, if any, and (ii) the proceeds of all Advances
hereunder solely for its general corporate purposes, including liquidity support
for commercial paper of the Company, in compliance with all applicable legal and
regulatory requirements. Neither the Company nor any of its Subsidiaries shall
engage principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U) and no part of the proceeds of any Advance
hereunder shall be used to acquire or carry any margin stock.
Section 11.4 Mergers. The Company will not, and will not permit any of its
-------
Subsidiaries to, consolidate with or merge into or with any Person, except that:
(i) the Company or any of its Subsidiaries may consolidate or merge with the
Company or another of the Company's Subsidiaries (provided that, in any such
merger or consolidation to which the Company is a party, the Company shall be
the surviving entity) and (ii) the Company or any of its Subsidiaries may
consolidate or merge with any other Person if the Company, or one of its
Subsidiaries is the surviving entity and such survivor shall continue to own and
operate the Company's business and, after giving effect to a consolidation or
merger pursuant to clause (i) or (ii), no Default shall have occurred and be
continuing.
Section 11.5 Debt to Capitalization. The Company shall not permit the ratio
----------------------
of Total Debt of the Company and the consolidated Subsidiaries to Total
Capitalization to exceed 70% at any time throughout the term hereof.
Section 11.6 Pari Passu Status. The Company will ensure that the claims and
-----------------
rights of the Lenders against it under this Agreement will not be subordinate
to, and will rank at all times at least pari passu with, the claims and rights
---- -----
of all other holders of its unsecured indebtedness.
Section 11.7 Asset Dispositions, etc. The Company and its Subsidiaries,
-----------------------
taken as a whole, will not sell, transfer, lease, contribute or otherwise
convey, or grant options, warrants or other rights with respect to, all or
substantially all of its assets (including accounts receivable and capital stock
of Subsidiaries) to any Person, unless such sale, transfer, lease, contribution
or conveyance is (a) in the ordinary course of its business or is permitted by
Section 11.4; or (b) a sale, transfer or conveyance of Permitted Receivables
- ------------
pursuant to a Permitted Receivables Purchase Facility.
33
Section 11.8 Limitation on Debt Secured by Mortgages.
---------------------------------------
(a) The Company will not, nor will it permit any Subsidiary to, issue,
assume or guarantee any Debt if such Debt is secured by a mortgage, pledge,
security interest or lien (any mortgage, pledge, security interest or lien being
hereinafter in this Section 11.8 referred to as a "mortgage" or "mortgages")
------------ -------- ---------
upon any Principal Property of the Company or of any Principal Subsidiary or
upon any shares of stock or indebtedness of any Principal Subsidiary (whether
such Principal Property, shares of stock or indebtedness are now owned or
hereinafter acquired), without in any such case effectively providing,
concurrently with the issuance, assumption or guarantee of such Debt, that the
Notes (together with, if the Company shall so determine, any other indebtedness
of or guaranteed by the Company or such Principal Subsidiary ranking equally
with the Notes then outstanding and existing or thereafter created) shall be
secured equally and ratably with (or prior to) such Debt; provided, however,
-------- -------
that the foregoing restriction shall not apply to Debt secured by:
(i) mortgages on property acquired, constructed or improved by
the Company or any Principal Subsidiary after the Effective Date which are
created or assumed contemporaneously with, or within 270 days after such
acquisition (or, in the case of property constructed or improved, within 270
days after the completion or commencement of commercial operation of such
property, whichever is later) to secure or provide for the payment of any part
of the purchase price of such property or cost of such construction or
improvement; provided, that if a commitment to so finance such a payment is
--------
obtained prior to or within such 270-day period and the related mortgage is
created within 90 days after the expiration of such 270-day period, the
applicable mortgage shall be deemed to be included in this clause (i), provided,
--------
further, that in the case of any such construction or improvement the mortgage
- -------
shall not apply to any property theretofore owned by the Company or any
Subsidiary, other than any theretofore unimproved real property on which the
property so constructed, or the improvement, is located;
(ii) mortgages on any property existing at the time of
acquisition thereof (including mortgages on property acquired from a person
which is consolidated with or merged with or into the Company or a Subsidiary)
and mortgages outstanding at the time any Person becomes a Subsidiary;
(iii) mortgages in favor of the Company or any Principal
Subsidiary;
(iv) mortgages in favor of the United States, any State or the
District of Columbia, any foreign country or any department, agency or
instrumentality or political subdivision of any such jurisdiction, to secure
partial, progress, advance or other payments pursuant to any contract or statute
or to secure any Debt incurred for the purpose of financing all or any part of
the purchase price or the cost of constructing or improving the property subject
to such mortgages, including mortgages to secure Debt of the pollution control
or industrial revenue bond type; and
(v) any extension, renewal or replacement (or successive
extensions, renewals or replacements, in whole or in part, of any mortgage
referred to in the foregoing clauses (i) to (iv), inclusive; provided, however,
-------- -------
that the principal amount of Debt secured thereby shall not exceed the principal
amount of Debt so secured at the time of such extension, renewal or replacement,
and that such extension,
34
renewal or replacement shall be limited to all or a part of the property which
secured the mortgage so extended, renewed or replaced (plus improvements on such
property).
(b) In addition to Debt secured by mortgages permitted under
subsection (a) of this Section 11.8, the Company or any Principal Subsidiary may
------------
issue, assume or guarantee Debt secured by mortgages which would otherwise be
subject to the foregoing restriction, without equally and ratably securing the
Notes, in an aggregate amount which, together with all other such Debt under
this subsection (b) and the Attributable Debt in respect of Sale-Leaseback
Transactions under subsection (d) of Section 11.9, but excluding Debt incurred
------------
pursuant to a sale, transfer or conveyance of Permitted Receivables pursuant to
a Permitted Receivables Purchase Facility, does not exceed 15% of Net Tangible
Assets, as shown on or derived from a consolidated balance sheet, as of a date
not more than 90 days prior to the proposed transaction, prepared by the Company
in accordance with GAAP.
Section 11.9 Limitation on Sale-Leaseback Transactions. The Company shall
-----------------------------------------
not, and shall not permit any Principal Subsidiary to, enter into a
Sale-Leaseback Transaction unless:
(a) the lease has a term, calculated by including lessee renewal
rights, of three (3) years or less;
(b) the lease is between the Company and a Principal Subsidiary or
between Principal Subsidiaries;
(c) the Company or a Principal Subsidiary under Section 11.8(a) could
---------------
issue, assume or guarantee secured Debt;
(d) the Company or a Principal Subsidiary under Section 11.8(b) could
---------------
issue, assume or guarantee secured Debt in an amount at least equal to the
amount of the Attributable Debt for the lease without equally and ratably
securing the Notes;
(e) the Company or a Principal Subsidiary within 180 days of the
effective date of the Sale-Leaseback Transaction retires Debt of the Company or
a Principal Subsidiary (other than such Debt owed to any Principal Subsidiary)
at least equal in amount to the Attributable Debt for the lease or purchases
property that will constitute Principal Property for an amount at least equal to
the Attributable Debt for the lease. The Company or a Principal Subsidiary may
not receive credit for retirement of Debt that is subordinated to the Notes or
that is effected by payment at maturity; or
(f) the Majority Lenders shall have consented to such Sale-Leaseback
Transaction (which consent shall not be unreasonably withheld).
Section 11.10 Limitation on Advances. Notwithstanding the amount of the
----------------------
Commitments, the Company shall not permit, at any time throughout the term
hereof, outstanding Advances plus outstanding commercial paper to exceed the
amount authorized by the Board of Directors of the Company from time to time.
35
ARTICLE 12
EVENTS OF DEFAULT
If one or more of the following events (herein called "Events of Default")
-----------------
shall occur and be continuing:
(a) The Company shall default in the payment when due (i) of any
principal of any Advance (and such default shall continue unremedied for a
period of two (2) Business Days), or (ii) of any interest on any Advance or any
fees payable by the Company hereunder or in connection herewith, or of any other
monetary Obligation (and such default shall continue unremedied for five (5)
Business Days); or
(b) Indebtedness of the Company or any of its Subsidiaries shall not
be paid when due or is accelerated by the holders thereof, the total amount of
such unpaid or accelerated Indebtedness exceeds $50,000,000, and such default is
continuing; or
(c) Any material representation or warranty made or deemed made herein
by the Company under this Agreement, or any certificate furnished by the Company
to any Lender or the Agent pursuant to the provisions hereof, shall prove to
have been incorrect in any material respect as of the time made or furnished if
such material representation or warranty or such certificate (i) results in a
Material Adverse Effect or (ii) would result in a Material Adverse Effect;
provided, however, that no incorrectness in any such representation or warranty
- -------- -------
or certificate to the extent pertaining to litigation or ERISA matters shall
result in a Default; or
(d) The Company shall default in the performance of any of its
obligations under Section 11.1(e) hereof (to the extent such default relates to
---------------
a Default arising from a breach of clause (a) or (b)(vi) of Section 11.2 or
------------
Sections 11.3 through 11.10 hereof, or from a breach of clause (b)(ii) of
- ------------- -----
Section 11.2, which breach in all cases has come to the attention of a vice
- ------------
president, the President or the Chairman of the Board of the Company), or
Sections 11.4 or 11.10 hereof; or the Company shall default in the performance
- ----------------------
of any of its obligations under Sections 11.6 through 11.9 hereof and such
------------- ----
default shall continue unremedied to the satisfaction of the Majority Lenders
for a period of ten (10) days after written notice thereof to the Company by
either the Agent or any Lender (through the Agent); or the Company shall default
in the performance of any of its other obligations in this Agreement and such
default shall continue unremedied for a period of 30 days after notice thereof
to the Company by the Agent or any Lender (through the Agent); or
(e) The Company shall (i) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee or liquidator of
itself or of all or a substantial part of its property under any bankruptcy,
insolvency or similar laws, (ii) admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due, (iii) make a
general assignment for the benefit of its creditors, (iv) commence a voluntary
case under the Federal Bankruptcy Code (as now or hereafter in effect), (v) file
a petition seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, or composition or readjustment of debts, (vi) fail
to controvert in a timely and appropriate manner, or acquiesce in writing to,
any petition filed against it in an involuntary case under such
36
Bankruptcy Code, or (vii) take any corporate action for the purpose of effecting
any of the foregoing; or
(f) A case or other proceeding shall be commenced (including
commencement of such case or proceeding by way of service of process on the
Company or a Subsidiary), without the application or consent of the Company, in
any court of competent jurisdiction, seeking (i) its bankruptcy, insolvency,
reorganization, or the composition or readjustment of its debts, (ii) the
appointment of a trustee, receiver, custodian, liquidator or the like of the
Company or of all or any substantial part of its assets under any bankruptcy,
insolvency or similar laws, or (iii) similar relief in respect of the Company or
one of its Subsidiaries under any law relating to bankruptcy, insolvency,
reorganization, or composition or readjustment of debts, and such case shall
continue undismissed and unstayed and in effect for a period of 60 days, or an
order, judgment or decree approving or ordering any of the foregoing shall be
entered and continue unstayed and in effect for a period of 60 days; or an order
for relief against the Company shall be entered in an involuntary case under
such Bankruptcy Code; or
(g) A judgment or judgments for the payment of money in excess of
$50,000,000 in the aggregate shall be entered by a court or courts against the
Company or any of its Subsidiaries and the same shall not be discharged (or
provision shall not be made for such discharge), or a stay of execution thereof
shall not be procured, within 60 days from the date of entry thereof and in any
event not later than the date of any proposed sale or levy thereunder and the
Company or the relevant Subsidiaries shall not, within such period of 60 days,
or such longer period during which execution of the same shall have been stayed,
appeal therefrom and cause the execution thereof to be stayed during such
appeal; or
(h) An event or condition specified in Section 11.1(d) hereof shall
---------------
occur or exist with respect to any Plan or Multiemployer Plan and, as a result
of such event or condition, together with all other such events or conditions,
the Company or any of its Subsidiaries shall incur a liability to a Plan, a
Multiemployer Plan or PBGC (or any combination of the foregoing) in an aggregate
amount exceeding $30,000,000, which amount is payable while this Agreement is in
effect;
THEREUPON, (i) in the case of an Event of Default other than one referred to in
clause (e) or (f) of this Article 12, the Agent shall, upon request of the
----------
Majority Lenders, by notice in writing to the Company, cancel the Commitments
and/or declare the principal amount then outstanding of and the accrued interest
on the Advances and all other amounts payable by the Company hereunder to be
immediately due and payable, whereupon such amounts shall be immediately due and
payable without presentment, demand, protest or other formalities of any kind,
all of which are hereby expressly waived by the Company; and (ii) in the case of
the occurrence of an Event of Default referred to in clause (e) or (f) of this
Article 12, the Commitments shall be automatically canceled and the principal
- ----------
amount then outstanding of, and the accrued interest on, the Advances and all
other amounts payable by the Company hereunder shall become automatically
immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by the
Company. The rights of the Agents and the Lenders provided for herein are
cumulative and are not exclusive of any other rights, powers, privileges or
remedies provided by law or in equity.
37
ARTICLE 13
THE AGENTS
Section 13.1 Appointment, Powers and Immunities. Each Lender hereby
----------------------------------
irrevocably appoints and authorizes the Agent to act as its administrative
agent, the Co-Syndication Agents to act as co-syndication agents, and the
Co-Documentation Agents to act as co-documentation agents, under and for
purposes of this Agreement, the Notes and the other Loan Documents with such
powers as are specifically delegated to the Agents by the terms of this
Agreement, the Notes and the other Loan Documents, together with such other
powers as are reasonably incidental thereto. The Agents (which term as used in
this sentence and in Section 13.5 hereof and the first sentence of Section 13.6
------------ ------------
hereof shall include reference to its affiliates and its own and its affiliates'
officers, directors, employees and agents): (a) shall have no duties or
responsibilities except those expressly set forth in this Agreement, the Notes
and the other Loan Documents, and shall not by reason of this Agreement, the
Notes and the other Loan Documents be a trustee for any Lender; (b) shall not be
responsible to the Lenders for any recitals, statements, representations or
warranties contained in this Agreement, the Notes and the other Loan Documents,
or in any certificate or other document referred to or provided for in, or
received by any of them under, this Agreement, the Notes and the other Loan
Documents, or for the value, execution, validity, effectiveness, genuineness,
enforceability, collectibility, or sufficiency of this Agreement, the Notes and
the other Loan Documents or any other document referred to or provided for
herein or for any failure by the Company or any other Person to perform any of
its obligations hereunder or thereunder; (c) shall not be required to initiate
or conduct any litigation or collection proceedings pursuant to this Agreement,
the Notes and the other Loan Documents except to the extent requested by the
Majority Lenders; and (d) shall not be responsible for any action taken or
omitted to be taken by them pursuant to this Agreement, the Notes and the other
Loan Documents or under any other document or instrument referred to or provided
for herein or therein or in connection herewith or therewith, except for their
own gross negligence or willful misconduct. The Agents 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 them.
Section 13.2 Reliance by the Agents. The Agents shall be entitled to rely
----------------------
upon any certification, notice or other communication (including any thereof by
telephone, telex or facsimile) believed by any of them 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 the Agents. As to any matters not expressly provided
for by this Agreement, the Notes and the other Loan Documents, the Agents shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder or thereunder in accordance with instructions signed by the Majority
Lenders or such larger percentage of the Lenders as may be required by any
provision of this Agreement, and such instructions of the Majority Lenders or
such larger percentage of the Lenders and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders.
Section 13.3 Default. The Agent shall be deemed to have no knowledge of the
-------
occurrence of a Default (other than the non-payment of principal of or interest
on Advances or of fees hereunder) unless the Agent has received notice from a
Lender or the Company specifying
38
such Default and stating that such notice is a "Notice of Default." In the event
that the Agent receive such a notice of the occurrence of a Default, the Agent
shall give prompt notice thereof to the Lenders (and shall give each Lender
prompt notice of each such non-payment). The Agent shall (subject to Section
-------
13.7 hereof) take such action with respect to such Default as shall be directed
- ----
by the Majority Lenders or such larger percentage of the Lenders as may be
required by any provision of this Agreement, provided that, unless and until the
Agent shall have received such directions, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interest of the Lenders.
Section 13.4 Rights as a Lender. With respect to its respective Commitments
------------------
and the Advances made by it, the Agent, the Co-Syndication Agents and the
Co-Documentation Agents in their capacity as Lenders hereunder shall have the
same rights and powers under this Agreement, the Notes and the other Loan
Documents as any other Lender and may exercise the same as though it were not
acting as the Agent, the Co-Syndication Agents and the Co-Documentation Agents,
respectively, and the term "Lender" or "Lenders" shall, unless the context
otherwise indicates, include each of the Agents in its individual capacity. The
Agents and their Affiliates may (without having to account therefor to any
Lender), accept deposits from, lend money to and generally engage in any kind of
banking, trust, financial advisory or other business with the Company (and any
of its affiliates) as if it were not acting as an Agent, and without notice to
or consent of the Lenders, the Agents may accept fees and other consideration
from the Company for services in connection with this Agreement, the Notes, the
other Loan Documents or otherwise without having to account for the same to the
Lenders.
Section 13.5 Indemnification by Lenders. The Lenders agree to indemnify the
--------------------------
Agent and its officers, directors, employees and agents (to the extent not
reimbursed under Section 14.5 hereof, but without limiting the obligations of
------------
the Company under said Section 14.5), ratably in accordance with the aggregate
------------
principal amount of the outstanding Advances made by the Lenders (or, if no
Advances are at the time outstanding, ratably in accordance with their
respective Commitments), for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of this
Agreement, the Notes, the other Loan Documents or any other documents
contemplated by or referred to herein or the transactions contemplated hereby
(including, without limitation, the costs and expenses which the Company is
obligated to pay under Section 14.3 hereof) or the enforcement of any of the
------------
terms of this Agreement, the Notes, the other Loan Documents or of any such
other documents, provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the party to be indemnified. The obligation of the Lenders in this
Section shall survive the payment of the Advances and of any other sums due from
Company hereunder and the termination of the Commitments.
Section 13.6 Non-Reliance on the Agents and other Lenders. Each Lender
--------------------------------------------
agrees that it has, independently and without reliance on the Agents or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Company and the Subsidiaries
and decision to enter into this Agreement and that it shall, independently and
without reliance upon the Agents or any other Lender, and based on such
39
documents and information as it shall deem appropriate at the time, continue to
make its own analysis and decisions in taking or not taking action under this
Agreement. The Agents shall not be required to keep itself informed as to the
performance or observance by the Company of this Agreement or any other document
referred to or provided for herein or to inspect the properties or books of the
Company or any Subsidiary. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the Agent
hereunder, the Agents shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition or business of the Company or any Subsidiary (or any of their
affiliates) which may come into the possession of the Agents or any of their
Affiliates. Each Lender further acknowledges that (i) the Agents have responded
satisfactorily to any request by such Lender for information regarding such
credit facilities; and (ii) the Agents and their Affiliates may manage their
relationships with the Company under such facilities as it sees fit as though it
were not an Agent hereunder.
Section 13.7 Failure to Act. Except for action expressly required of the
--------------
Agent hereunder, the Agents shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall 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.
Section 13.8 Resignation. Any of the Agents may resign as such at any time
-----------
upon at least 30 days prior notice to the Company and the Lenders. In the event
of any such resignation of the Agent, the Company shall as promptly as
practicable appoint a successor Agent who must be or immediately become a
Lender. In the event no such successor is appointed, the Majority Lenders shall
as promptly as practicable appoint a successor agent to such resigning Agent. In
the event no such successor is so appointed within 30 days of any such notice,
any Lender may apply to a court of competent jurisdiction for the appointment of
a successor agent hereunder to such resigning Agent. After any retiring Agent's
resignation hereunder as an Agent, the provisions of (i) this Article 13 shall
----------
inure to its benefit as to any actions taken or omitted to be taken by it while
it was an Agent, as the case may be, under this Agreement and (ii) Section 14.8
------------
shall continue to inure to its benefit.
Section 13.9 Funding Reliance, etc. Unless the Agent shall have been
---------------------
notified by telephone, confirmed in writing, by any Lender by 5:00 p.m., New
York, New York time, on the day of any Reference Rate Advance or the day prior
to any other Advance, that such Lender will not make available the amount which
would constitute its percentage of such Advance on the date specified therefor,
the Agent may assume that such Lender has made such amount available to the
Agent and, in reliance upon such assumption, make available to the Company a
corresponding amount. If and to the extent that such Lender shall not have made
such amount available to the Agent, such Lender and the Company severally agree
to repay such Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date the Agent made such amount
available to the Company to the date such amount is repaid to the Agent, at the
Federal Funds Rate.
Section 13.10 Co-Syndication Agents and Co-Documentation Agents. None of
-------------------------------------------------
the Lenders identified on the facing page or signature pages of this Agreement
as either Co-Syndication Agents or Co-Documentation Agents shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than those applicable to all Lenders as
40
such. Each Lender acknowledges that it has not relied, and will not rely, on any
of the Lenders so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE 14
MISCELLANEOUS
Section 14.1 Waiver. No failure on the part of the Agents or any Lender to
------
exercise and no delay in exercising, and no course of dealing with respect to,
any right, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The remedies provided
herein are cumulative and not exclusive of any remedies provided by law.
Section 14.2 Government Regulation. Anything contained in this Agreement to
---------------------
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Company in violation of any limitation or prohibition provided by any
applicable statute or regulation.
Section 14.3 Taxes. Any taxes (excluding income taxes payable by the Agents
-----
or the Lenders, other than as provided in Article 8) or other similar
---------
assessments or charges payable or ruled payable by any government authority in
respect of this Agreement or any other Loan Documents shall be paid by the
Company, together with interest and penalties, if any.
Section 14.4 Notices. All notices and other communications provided for
-------
herein (including, without limitation, any modifications of, or waivers or
consents under, this Agreement) shall be given or made by telex, legible
facsimile transmission or in writing and telexed, telecopied, mailed or
delivered to the intended recipient at the "Address for Notices" specified below
its name on the signature pages hereof; or, as to any party, at such other
address as shall be designated by such party in a notice to each other party.
Except as otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when transmitted by telex (answerback confirmed
in the case of Telexes) or telecopier, or personally delivered or, in the case
of a mailed notice, upon receipt, in each case given or addressed as aforesaid,
except that notices to the Agent pursuant to Articles 2, 3, 4, 5, 12 or 13 shall
---------- - - - -- --
not be effective until actually received by the Agent. The Agents and the
Lenders shall not have any liability on account of any action taken or not taken
by the Agents or the Lenders in reliance upon telephonic notice (where expressly
authorized by this Agreement) or telex or facsimile notice.
Section 14.5 Expenses, Etc. The Company agrees to pay or reimburse each of
-------------
the Lenders and the Agents (to the extent provided below) for paying: (a) the
fees and out-of-pocket expenses of the Agent in connection with (i) the
negotiation, preparation, execution and delivery of this Agreement, the Notes
and every other Loan Document, including schedules and exhibits, and (ii) any
amendment, modification or waiver of any of the terms of this Agreement, the
Notes or any other Loan Document as from time to time hereafter may be required;
(b) all reasonable costs and expenses of the Lenders and the Agents (including
reasonable attorneys' fees and expenses, including the allocated cost of
internal counsel) in connection with the enforcement of this Agreement, the
Notes and any other Loan Documents; and (c) all transfer, stamp,
41
documentary or other similar taxes, assessments or charges, including the
allocated cost of internal counsel, levied by any governmental or revenue
authority in respect of this Agreement or any other document referred to herein.
Section 14.6 Amendments, Etc. No amendment or waiver of any provision of
---------------
this Agreement or consent to any departure by any party therefrom, shall in any
event be effective unless the same shall be in writing and signed by the Company
and the Majority Lenders, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided, however, that no amendment, waiver or consent shall, unless in writing
- --------
and signed by all the Lenders, do any of the following: (a) waive any of the
conditions specified in Article 9, (b) increase the Commitments of the Lenders
---------
or of any Lender or subject the Lenders to any additional obligations, (c)
reduce the principal of, or interest on, the Advances or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Advances or any fees or other amounts payable
hereunder, (e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Advances, or the number of Lenders, which shall
be required for the Lenders or any of them to take any action hereunder, or (f)
amend this Section 14.6; and provided, further, that no amendment, waiver or
------------ -------- -------
consent shall, unless in writing and signed by the Agent affected in addition to
the Lenders required above to take such action, affect the rights or duties of
the Agents under this Agreement. No notice to or demand on the Company in any
case shall entitle the Company to any other or further notice or demand in
similar or other circumstances. Any amendment, modification, termination, waiver
or consent effected in accordance with this Section 14.6 shall be binding upon
------------
each holder of any indebtedness resulting from the making of Advances hereunder
at the time outstanding, each future holder of any such indebtedness, and if
signed by the Company, on the Company.
Section 14.7 Sales and Transfers, etc. of Advances and Notes; Participation
--------------------------------------------------------------
in Advances and Notes.
- ---------------------
(a) Any Lender may at any time sell to one or more banks or other
entities ("Participants") participating interests in any Advance owing to such
------------
Lender, any Note held by such Lender, the Commitment of such Lender or any other
interest of such Lender hereunder, provided that no Lender may sell any
--------
participating interests in any such Advance, Note, Commitment or other interest
hereunder without also selling to such Participant the appropriate share of its
Advances, Note, Commitments and other interests hereunder related thereto, and
provided further that no Lender shall transfer, grant or assign any
- -------- -------
participation under which the Participant shall have rights to approve any
amendment to or waiver of this Agreement except to the extent such amendment or
waiver would (i) increase the amount of such Lender's Commitment, (ii) reduce
the principal of, or interest on, any of such Lender's Advances, or any fees or
other amounts payable to such Lender hereunder, (iii) postpone any date fixed
for any scheduled payment of principal of, or interest on, any of such Lender's
Advances, or any fees or other amounts payable to such Lender hereunder or (iv)
release all or substantially all collateral security, if any, for any
Obligation, except as otherwise specifically provided in any Loan Document. In
the event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Note for all purposes under this Agreement and the
42
Company and the Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. The Company agrees that if amounts outstanding under this Agreement
and the Notes are due and unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement and any Note to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under this Agreement or any Note; provided that such right of
--------
setoff shall be subject to the obligation of such Participant to share with the
Lenders, and the Lenders agree to share with such Participant, as provided in
Section 14.10. The Company also agrees that each Participant shall be entitled
- -------------
to the benefits of Article 8 with respect to its participation in the
---------
Commitments and the Advances outstanding from time to time; provided that no
--------
Participant shall be entitled to receive any greater amount pursuant to such
provisions than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred; and provided, further, that
--------
each Participant shall have complied with the provisions of Section 14.7(e).
---------------
(b) (i) Any Lender may at any time sell to any Lender or any affiliate
thereof, and, with the consent of the Agent and the Company (which shall not be
unreasonably withheld or delayed), to one or more banks or financial
institutions ("Purchasing Lenders") all or any part of its rights and
------------------
obligations under this Agreement and the Notes, pursuant to a Transfer
Certificate in the form attached as Exhibit I hereto, executed by such
---------
Purchasing Lender and such transferor Lender (and, in the case of a Purchasing
Lender which is not then a Lender or an affiliate thereof, by the Company) and
the Agent and delivered to the Agent; provided that each such sale to a
--------
Purchasing Lender shall be in an amount of $5,000,000 or more; and provided,
--------
further, that no Lender may sell any Commitment to a Purchasing Lender without
- -------
also selling to such Purchasing Lender the appropriate pro rata share of its
--- ----
Notes and Advances thereunder.
(ii) Upon such execution, delivery and acceptance as set forth
above, from and after the Transfer Effective Date determined pursuant to such
Transfer Certificate (x) the Purchasing Lender thereunder shall be a party
hereto and, to the extent provided in such Transfer Certificate, have the rights
and obligations of a Lender hereunder with a Commitment as set forth therein and
(y) the transferor Lender thereunder shall, to the extent provided in such
Transfer Certificate be released from its obligations under this Agreement (and,
in the case of an Transfer Certificate covering all or the remaining portion of
a transferor Lender's rights and obligations under this Agreement, such
transferor Lender shall cease to be a party hereto). Such Transfer Certificate
shall be deemed to amend this Agreement to the extent, and only to the extent,
necessary to reflect the addition of such Purchasing Lender and the resulting
adjustment of Commitments arising from the purchase by such Purchasing Lender of
all or a portion of the rights and obligations of such transferor Lender under
this Agreement and the Notes. On or prior to the Transfer Effective Date
determined pursuant to such Transfer Certificate, the Company, at its own
expense, shall execute and deliver to the Agent in exchange for any surrendered
Notes, a new Note payable to the order of such Purchasing Lender in an amount
equal to the Commitments assumed by it pursuant to such Transfer Certificate,
and, if the transferor Lender has retained a Commitment or Advance hereunder, a
new Note to the order of the transferor Lender in an amount equal to the
Commitment retained by it hereunder. The new Notes to be held by the Purchasing
Lender shall be dated the Effective Date and the new Notes to be held by
43
the transferor Lender shall be dated the date of the Notes being surrendered and
all such Notes shall otherwise be in the form of the Notes replaced thereby. The
Notes surrendered by the transferor Lender shall be returned by the Agent to the
Company marked "replaced."
(c) Upon its receipt of a Transfer Certificate executed by a
transferor Lender and a Purchasing Lender (and, in the case of a Purchasing
Lender that is not then a Lender or an affiliate thereof, by the Company (if the
consent of the Company is required)) and the Agent together with payment to the
Agent hereunder of a registration and processing fee of $3,500, the Agent shall
(i) promptly accept such Transfer Certificate and (ii) on the Transfer Effective
Date determined pursuant thereto give notice of such acceptance and recordation
to the Lenders and the Company.
(d) The provisions of the foregoing clauses (b) and (c) shall not
----------- ---
apply to or restrict, or require the consent of or any notice to any Person to
effectuate, the pledge or assignment by any Lender of its rights under this
Agreement and its Notes to any Federal Reserve Lender.
(e) If, pursuant to this Section 14.7 any interest in this Agreement
------------
or any Note is transferred to any transferee (a "Transferee") which is organized
----------
under the laws of any jurisdiction other than the United States, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, (i) to represent to the transferor Lender (for the benefit of the
transferor Lender, Agents and the Company) that under applicable law and
treaties no taxes will be required to be withheld by the Agent, the Company or
the transferor Lender with respect to any payments to be made to such Transferee
in respect of the Advances, (ii) to furnish to the transferor Lender (and, in
the case of any Purchasing Lender, the Agents and the Company) either United
States Internal Revenue Service Form W-8ECI, W-8BEN, W-8EXP or W-8IMY, as
applicable (wherein such Transferee claims entitlement to complete exemption
from U.S. federal withholding tax on all interest payments hereunder) and (iii)
to agree (for the benefit of the transferor Lender, the Agents and the Company)
to provide the transferor Lender (and, in the case of any Purchasing Lender, the
Agents and the Company) a new United States Internal Revenue Service Form
W-8ECI, W-8BEN, W-8EXP or W-8IMY, as applicable, upon the expiration or
obsolescence of any previously delivered form and comparable statements in
accordance with applicable U.S. laws and regulations and amendments duly
executed and completed by such Transferee, and to comply from time to time with
all applicable U.S. laws and regulations with regard to such withholding tax
exemption.
(f) Notwithstanding any provision of this Section, the consent of the
Company shall not be required for any assignment that occurs at any time when
any Event of Default shall have occurred and be continuing.
Section 14.8 Indemnification. In consideration of the execution and
---------------
delivery of this Agreement by each Lender and the extension of the Commitments,
the Company hereby agrees to indemnify and hold the Agents and each Lender and
each of their respective directors, officers, employees, affiliates and agents
(collectively, the "Indemnified Parties") harmless from and against any and all
-------------------
losses, claims, damages, liabilities and expenses (including, without
limitation, reasonable fees and disbursements of counsel amounts paid in
settlement and court costs) (collectively, the "Indemnified Liabilities"), which
-----------------------
may be incurred by or asserted against
44
the Indemnified Parties or any of them, in connection with or arising out of or
resulting from the action or inaction of the Company or any of its Subsidiaries
in connection with: (a) any transaction financed or to be financed in whole or
in part, directly or indirectly, with the proceeds of any Advance; and (b) the
entering into and performance of this Agreement and any other Loan Document by
any of the Indemnified Parties. Notwithstanding anything herein to the contrary,
the Company shall not be liable or responsible for Indemnified Liabilities to
the extent a court of competent jurisdiction has found such Indemnified
Liabilities resulted from such Indemnified Person's own negligence or willful
misconduct.
Section 14.9 Set-off. Upon (i) the occurrence and during the continuance of
-------
any Default, (ii) the making of the request by the Majority Lenders (or any
greater percentage of the Lenders) specified in Article 12 to the Agent to
----------
declare the Advances and other amounts due hereunder to be immediately due and
payable, or (iii) obtaining the consent of the Majority Lenders, each Lender
hereby is authorized at any time and from time to time, without prior notice to
the Company (any such notice being expressly waived by the Company), to set-off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Lender (or any bank controlling such Lender) to or for the credit or the account
of the Company against any and all obligations of the Company now or hereafter
existing under this Agreement, irrespective of whether or not such Lenders shall
have made any demand under this Agreement and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Company (through the Agent)
after any such set-off and application made by such Lender, provided, however,
-------- -------
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender under this Section 14.9 are
------------
in addition to other rights and remedies (including other rights of set-off)
which such Lender may have.
Section 14.10 Sharing of Payments, Etc. If any Lender shall obtain any
------------------------
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advances made by it in excess of its
ratable share of payments on account of the Advances obtained by all of the
Lenders, such Lender shall forthwith advise the Agent of the receipt of such
payment, and within one Business Day of such receipt shall purchase from the
other Lenders (through the Agent) such participation in the Advances made by
them 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 by or on behalf of the Company
from such purchasing Lender, the purchase shall be rescinded and the purchase
price restored to the extent of such recovery, but without interest. The Company
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 14.10 may exercise all of its rights of payment
-------------
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Company in the amount of such
participation. No documentation other than notices and the like referred to in
this Section 14.10 shall be required to implement the terms of this Article. The
------------- -------
Agent shall keep records (which shall be conclusive absent manifest error) of
participation pursuant to this Section 14.10 and shall in each case notify the
-------------
Lenders following any such purchases.
Section 14.11 Other Transactions. Nothing contained herein shall preclude
------------------
the Agents or any Lender from engaging in any transaction, in addition to those
contemplated by this
45
Agreement or any other Loan Document, with the Company or any of its Affiliates
in which the Company or such Affiliate is not restricted hereby from engaging
with any other Person.
Section 14.12 Nonliability of Lenders. The relationship between the Company
-----------------------
on the one hand and the Lenders and the Agents on the other hand shall be solely
that of borrower and lender. None of the Agents nor any Lenders shall have any
fiduciary responsibilities to the Company or any of its Subsidiaries or
Affiliates. None of the Agents nor any of the Lenders undertakes any
responsibility to the Company or any of its Subsidiaries or Affiliates to review
or inform the Company of any matter in connection with any phase of the
Company's or such Subsidiary's or Affiliate's business or operations.
Section 14.13 Severability. In case any provision in or obligation under
------------
this Agreement shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
Section 14.14 Survival. All agreements, representations and warranties made
--------
herein are made as of the respective dates stated herein and shall survive the
execution and delivery of this Agreement and the making of the Advances
hereunder. Notwithstanding anything in this Agreement or implied by law to the
contrary, the obligations of the Company under Sections 8.1 through 8.4, 8.11,
------------ --- ----
14.3, 14.5 and 14.8 hereof shall survive any termination of this Agreement, the
- ---- ---- ----
other Loan Documents, the repayment of the Advances and the termination of the
Commitments.
Section 14.15 Captions and Headings. Captions and section headings
---------------------
appearing herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
Section 14.16 Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart. This Agreement shall become effective when counterparts
hereof executed on behalf of the Company and each Lender (or notice thereof
satisfactory to the Agent) shall have been received by the Agent and notice
thereof shall have been given by the Agent to the Company and each Lender.
Section 14.17 Numbers of Documents. All statements, notices, closing
--------------------
documents, and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may furnish one to each of the Lenders
and each of the Agents.
Section 14.18 Governing Law. THIS AGREEMENT, THE NOTES, AND EACH OTHER LOAN
-------------
DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
Section 14.19 Forum Selection and Consent to Jurisdiction. ANY LITIGATION
-------------------------------------------
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT,
THE NOTES OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE
LENDERS OR THE
46
COMPANY SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE
OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK. THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE COMPANY FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. THE
COMPANY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF
VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY
CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE
EXTENT THAT THE COMPANY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OF FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE COMPANY HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT, THE NOTES AND THE OTHER LOAN DOCUMENTS.
Section 14.20 Waiver of Jury Trial. THE COMPANY, THE AGENTS AND THE LENDERS
HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE NOTES, THE
OTHER LOAN DOCUMENTS, OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT
MATTER OF THIS CREDIT TRANSACTION AND THE LENDER/COMPANY RELATIONSHIP THAT IS
BEING ESTABLISHED. The scope of this waiver is intended to be all-encompassing
of any and all disputes that may be filed in any court and that relate to the
subject matter of this transaction, including, without limitation, contract
claims, tort claims, breach of duty claims, and all other common law and
statutory claims. The Agents, the Lenders and the Company each acknowledge that
this waiver is a material inducement to enter into a business relationship, that
each has already relied on the waiver in entering into this Agreement, the Notes
and the other Loan Documents and that each will continue to rely on the waiver
in their related future dealings. The Agents, the Lenders and the Company
further warrant and represent that each has reviewed this waiver with its legal
counsel, and that each knowingly and voluntarily waives its jury trial rights
following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT, THE NOTES, THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE ADVANCES. In the event of litigation, this Agreement
may be filed as a written consent to a trial by the court.
47
Section 14.21 Interest Rate Limitation. Notwithstanding anything herein to
------------------------
the contrary, if at any time the interest rate applicable to any Advance,
together with all fees, charges and other amounts which are treated as interest
on such Advance under applicable law (collectively the "Charges"), shall exceed
-------
the maximum lawful rate (the "Maximum Rate") which may be contracted for,
------------
charged, taken, received or reserved by the Lender holding such Advance in
accordance with applicable law, the rate of interest payable in respect of such
Advance hereunder, together with all Charges payable in respect thereof, shall
be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Advance but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Advances or
periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Rate to
the date of repayment, shall have been received by such Lender.
Section 14.22 Entire Agreement. This Agreement, the Notes and the other
----------------
Loan Documents embody the entire agreement and understanding among the Company,
the Lenders and the Agents, and supersede all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof, except for the fee letter referenced in
Section 2.6(b) hereof, and any prior arrangements made with respect to the
- --------------
payment by the Company of (or any indemnification for) any fees, costs or
expenses payable to or incurred (or to be incurred) by or on behalf of the
Agents or the Lenders.
Section 14.23 No Oral Agreements. THIS WRITTEN AGREEMENT, THE NOTES, AND
------------------
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
48
The parties hereto have caused this Agreement to be duly executed by their
respective officers thereunto duly authorized as of the day and year first above
written.
PG&E GAS TRANSMISSION, NORTHWEST
CORPORATION
By
-----------------------------------------------------
Name:
Title:
Address:
1400 SW 5th Street
Portland, OR 97201
Telephone No.: (503) 833-4000
Facsimile No.: (503) 833-4907
Attention:
---------------
[SIGNATURE PAGE TO CREDIT AGREEMENT]
S-1
THE ROYAL BANK OF SCOTLAND PLC, as
Administrative Agent for the Lenders and as a
Lender
By
-----------------------------------------------------
Name:
Title:
Address for Notices:
101 Park Ave, 12th Floor
New York, NY 10178
Telephone No.: (212) 401-1420
Telecopier No.: (212) 401-1336
Attention: Juanita Baird /
Chantal Lapice
E-mail: juanita.baird@rbos.com /
chantal.lapice@rbos.com
Lending Office for Advances and Payments:
101 Park Ave, 12th Floor
New York, NY 10178
Telephone No.: (212) 401-1420
Telecopier No.: (212) 401-1336
Attention: Juanita Baird /
Chantal Lapice
E-mail: juanita.baird@rbos.com /
chantal.lapice@rbos.com
ABA No.: 021000021
Chase Manhattan Bank,
New York
For Account of: Royal Bank of Scotland PLC,
New York
Account No.: 400931052
Reference: PG&E Gas Transmission
Northwest Corporation
(GTN)
[SIGNATURE PAGE TO CREDIT AGREEMENT]
S-2
BARCLAYS BANK PLC, NEW YORK
BRANCH, as a Co-Syndication Agent for the
Lenders and as a Lender
By
----------------------------------------------------
Name:
Title:
Address for Notices:
222 Broadway, 11th Floor
New York, New York 10038
Telephone No.: (212) 412-5364
Telecopier No.: (212) 412-5306
Attention: Anthony Alexander
E-mail: anthony.alexander@barcap.com
with a copy to:
Sydney Dennis
222 Broadway, 11th Floor
New York, New York 10038
Telephone No.: (212) 412-2470
Telecopier No.: (212) 412-2441
E-mail: sydney.dennis@barcap.com
Lending Office for Advances and Payments:
222 Broadway, 11th Floor
New York, New York 10038
Telephone No.: (212) 412-5364
Telecopier No.: (212) 412-5306
Attention: Anthony Alexander
E-mail: anthony.alexander@barcap.com
ABA No.: 026 002 574
For Account of: Barclays Bank PLC
Account No.: 050-019104
Reference: Clad Control Account
[SIGNATURE PAGE TO CREDIT AGREEMENT]
S-3
BANK ONE, NA, as a Co-Syndication Agent for
the Lenders and as a Lender
By
----------------------------------------------------
Name:
Title:
Address for Notices:
1 Bank One Plaza, Suite IL1-0363
Chicago, IL 60670
Telephone No.: (312) 732-6899
Telecopier No.: (312) 732-3055
Attention: Dawn Hamm
E-mail: dawn_m_hamm@bankone.com
with a copy to:
Jane A. Bek
1 Bank One Plaza, Suite IL1-0363
Chicago, IL 60670
Telephone No.: (312) 732-3422
Telecopier No.: (312) 732-3055
E-mail: jane_bek@bankone.com
Lending Office for Advances and Payments:
1 Bank One Plaza, Suite IL1-0363
Chicago, IL 60670
Telephone No.: (312) 732-6899
Telecopier No.: (312) 732-3055
Attention: Dawn Hamm
E-mail: dawn_m_hamm@bankone.com
ABA No.: 071000013
For Account of: LS2 OSD Money Transfers
Incoming
Account No.: 4811-5286-0000
Reference: PG&E Gas Transmission
Northwest
[SIGNATURE PAGE TO CREDIT AGREEMENT]
S-4
FLEET NATIONAL BANK, as a Co-
Documentation Agent for the Lenders and as a
Lender
By
----------------------------------------------------
Name:
Title:
Address for Notices:
Global Energy
100 Federal Street, MA DE 10008A
Boston, MA 02110
Telephone No.: (617) 434-3936
Telecopier No.: (617) 434-0201
Attention: Cassandra Robersson
with a copy to:
Cheryl Hutt
Global Energy
100 Federal Street, MA DE 10008A
Boston, MA 02110
Telephone No.: (617) 434-7229
Telecopier No.: (617) 434-3652
E-mail: Cheryl_a_hutt@fleet.com
Lending Office for Advances and Payments:
Global Energy
100 Federal Street, MA DE 10008A
Boston, MA 02110
Telephone No.: (617) 434-3936
Telecopier No.: (617) 434-0201
Attention: Cassandra Robersson
ABA No.: 011 000 138
For Account of: Fleet National Bank -
Commercial Loan Services
Account No.: 1510351 66156
Reference: PG&E
[SIGNATURE PAGE TO CREDIT AGREEMENT]
S-5
BANK OF MONTREAL, as a Co-Documentation
Agent for the Lenders and as a Lender
By
----------------------------------------------------
Name:
Title:
Address for Notices:
115 S. LaSalle, 17th Floor
Chicago, IL 60603
Telephone No.: (312) 750-3722
Telecopier No.: (312) 750-6061
Attention: Alicia Carriedo
E-mail: alicia.carriedo@bmo.com
with a copy to:
Cahal Carmody
700 Louisiana, Suite 4400
Houston, TX 77002
Telephone No.: (713) 546-9750
Telecopier No.: (713) 223-4007
Attention: Cahal Carmody
E-mail: cahal.carmody@bmo.com
Lending Office for Advances and Payments:
115 S. LaSalle, 17th Floor
Chicago, IL 60603
Telephone No.: (312) 750-3722
Telecopier No.: (312) 750-6061
Attention: Alicia Carriedo
E-mail: alicia.carriedo@bmo.com
Credit Bank: Harris Trust and Savings Bank
ABA No.: 071000288
For Account of: Bank of Montreal, Chicago
Branch
Account No.: 183320-1
Reference: $125MM Revolver
[SIGNATURE PAGE TO CREDIT AGREEMENT]
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ARTICLE 1 DEFINITIONS AND ACCOUNTING MATTERS...................................................1
Section 1.1 Certain Defined Terms.........................................................1
Section 1.2 Other References.............................................................14
Section 1.3 Other Agreements.............................................................14
Section 1.4 Headings.....................................................................14
Section 1.5 Accounting Terms.............................................................14
ARTICLE 2 THE FACILITY........................................................................14
Section 2.1 Grant of Facility............................................................14
Section 2.2 Maximum Outstandings.........................................................15
Section 2.3 [Intentionally omitted]......................................................15
Section 2.4 Nature of Lenders' Obligations...............................................15
Section 2.5 Changes in Commitments.......................................................15
Section 2.6 Fees.........................................................................15
Section 2.7 Lending Offices..............................................................16
Section 2.8 Prepayments..................................................................16
Section 2.9 Notes........................................................................16
Section 2.10 Repayment....................................................................16
ARTICLE 3 LIBOR ADVANCES......................................................................17
Section 3.1 LIBOR Advance Requests.......................................................17
Section 3.2 Making of LIBOR Advances.....................................................17
Section 3.3 Interest on LIBOR Advances...................................................17
ARTICLE 4 REFERENCE RATE ADVANCES.............................................................18
Section 4.1 Reference Rate Advance Requests..............................................18
Section 4.2 Making of Reference Rate Advances............................................18
Section 4.3 Interest on Reference Rate Advances..........................................18
Section 4.4 Reference Rate Communication.................................................19
ARTICLE 5 [INTENTIONALLY OMITTED].............................................................19
ARTICLE 6 CURRENCY OF ACCOUNT AND PAYMENT.....................................................19
Section 6.1 Claims in Dollars............................................................19
Section 6.2 Accounts for Payment.........................................................19
Section 6.3 Application of Payment.......................................................19
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Section 6.4 No Set-Off...................................................................20
Section 6.5 Actual Receipt...............................................................20
Section 6.6 Default Interest.............................................................20
ARTICLE 7 PRO RATA TREATMENT, COMPUTATIONS....................................................20
Section 7.1 Pro Rata Treatment...........................................................20
Section 7.2 Computations.................................................................21
ARTICLE 8 TAXES, YIELD PROTECTION AND ILLEGALITY..............................................21
Section 8.1 Withholding..................................................................21
Section 8.2 Tax Forms....................................................................21
Section 8.3 Tax Receipts.................................................................22
Section 8.4 Change in Law................................................................22
Section 8.5 Capital Adequacy.............................................................23
Section 8.6 Regulation D.................................................................23
Section 8.7 Notice of Claim..............................................................24
Section 8.8 Illegality...................................................................24
Section 8.9 Reference Rate Advances pursuant to Section 8.8..............................25
Section 8.10 Market Disruption............................................................25
Section 8.11 Compensation.................................................................25
ARTICLE 9 CONDITIONS PRECEDENT................................................................26
Section 9.1 Closing......................................................................26
Section 9.2 Initial and Subsequent Advances..............................................27
ARTICLE 10 REPRESENTATIONS AND WARRANTIES......................................................27
Section 10.1 Corporate Existence..........................................................27
Section 10.2 Financial Condition..........................................................27
Section 10.3 Litigation...................................................................28
Section 10.4 No Breach....................................................................28
Section 10.5 Corporate Action.............................................................28
Section 10.6 Approvals....................................................................28
Section 10.7 Margin Stock.................................................................29
Section 10.8 ERISA........................................................................29
Section 10.9 Pari Passu Status............................................................29
Section 10.10 Environmental Matters........................................................29
Section 10.11 Investment and Holding Company Status........................................29
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ARTICLE 11 COVENANTS OF THE COMPANY............................................................29
Section 11.1 Financial Statements.........................................................30
Section 11.2 Corporate Existence, Etc.....................................................32
Section 11.3 Use of Proceeds..............................................................33
Section 11.4 Mergers......................................................................33
Section 11.5 Debt to Capitalization.......................................................33
Section 11.6 Pari Passu Status............................................................33
Section 11.7 Asset Dispositions, etc......................................................33
Section 11.8 Limitation on Debt Secured by Mortgages......................................34
Section 11.9 Limitation on Sale-Leaseback Transactions....................................35
Section 11.10 Limitation on Advances.......................................................35
ARTICLE 12 EVENTS OF DEFAULT...................................................................36
ARTICLE 13 THE AGENTS..........................................................................38
Section 13.1 Appointment, Powers and Immunities...........................................38
Section 13.2 Reliance by the Agents.......................................................38
Section 13.3 Default......................................................................38
Section 13.4 Rights as a Lender...........................................................39
Section 13.5 Indemnification by Lenders...................................................39
Section 13.6 Non-Reliance on the Agents and other Lenders.................................39
Section 13.7 Failure to Act...............................................................40
Section 13.8 Resignation..................................................................40
Section 13.9 Funding Reliance, etc........................................................40
Section 13.10 Co-Syndication Agents and Co-Documentation Agents............................40
ARTICLE 14 MISCELLANEOUS.......................................................................41
Section 14.1 Waiver.......................................................................41
Section 14.2 Government Regulation........................................................41
Section 14.3 Taxes........................................................................41
Section 14.4 Notices......................................................................41
Section 14.5 Expenses, Etc................................................................41
Section 14.6 Amendments, Etc..............................................................42
Section 14.7 Sales and Transfers, etc. of Advances and Notes; Participation in
Advances and Notes...........................................................42
Section 14.8 Indemnification..............................................................44
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Section 14.9 Set-off......................................................................45
Section 14.10 Sharing of Payments, Etc.....................................................45
Section 14.11 Other Transactions...........................................................45
Section 14.12 Nonliability of Lenders......................................................46
Section 14.13 Severability.................................................................46
Section 14.14 Survival.....................................................................46
Section 14.15 Captions and Headings........................................................46
Section 14.16 Counterparts.................................................................46
Section 14.17 Numbers of Documents.........................................................46
Section 14.18 Governing Law................................................................46
Section 14.19 Forum Selection and Consent to Jurisdiction..................................46
Section 14.20 Waiver of Jury Trial.........................................................47
Section 14.21 Interest Rate Limitation.....................................................48
Section 14.22 Entire Agreement.............................................................48
Section 14.23 No Oral Agreements...........................................................48
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EXHIBITS AND SCHEDULES
Exhibit A - Form of Note
Exhibit B - Form of LIBOR Rate Advance Request
Exhibit C - Form of Reference Rate Advance Request
Exhibit D - Form of Tax Certificate
Exhibit E - Forms of Opinion of Counsel to the Company
Exhibit F - Form of Transfer Certificate
Schedule I - Commitments
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