EXECUTION COPY
$1,400,000,000
CREDIT AGREEMENT
among
KEYSPAN CORPORATION,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
ABN AMRO BANK, N.V.
and
CITIBANK, N.A.,
as Co-Syndication Agents,
FLEET NATIONAL BANK
and
THE ROYAL BANK OF SCOTLAND PLC,
as Co-Documentation Agents,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of September 19, 2001
J.P. MORGAN SECURITIES INC.,
Lead Arranger and Book Manager
TABLE OF CONTENTS
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Page
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Section 1 DEFINITIONS.....................................................................................1
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1.1 Defined Terms...................................................................................1
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1.2 Other Definitional Provisions..................................................................14
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Section 2 AMOUNT AND TERMS OF COMMITMENTS................................................................14
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2.1 Commitments....................................................................................14
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2.2 Competitive Bid Procedure......................................................................15
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2.3 Procedure for Loan Borrowing...................................................................16
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2.4 Facility Fees, etc.............................................................................17
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2.5 Termination or Reduction of Commitments........................................................17
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2.6 Optional Prepayments...........................................................................17
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2.7 Conversion and Continuation Options............................................................17
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2.8 Limitations on Eurodollar Tranches.............................................................18
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2.9 Interest Rates and Payment Dates...............................................................18
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2.10 Computation of Interest and Fees...............................................................18
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2.11 Inability to Determine Interest Rate...........................................................19
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2.12 Pro Rata Treatment and Payments................................................................19
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2.13 Requirements of Law............................................................................20
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2.14 Taxes..........................................................................................21
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2.15 Indemnity......................................................................................23
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2.16 Change of Lending Office.......................................................................23
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2.17 Replacement of Lenders.........................................................................23
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Section 3 REPRESENTATIONS AND WARRANTIES.................................................................24
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3.1 Financial Condition............................................................................24
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3.2 No Change......................................................................................24
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3.3 Corporate Existence; Compliance with Law.......................................................24
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3.4 Corporate Power; Authorization; Enforceable Obligations........................................25
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3.5 No Legal Bar...................................................................................25
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3.6 Litigation.....................................................................................25
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3.7 No Default.....................................................................................25
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3.8 Ownership of Property; Liens...................................................................25
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3.9 Intellectual Property..........................................................................25
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3.10 Taxes..........................................................................................26
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3.11 Federal Regulations............................................................................26
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3.12 Labor Matters..................................................................................26
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3.13 ERISA..........................................................................................26
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3.14 Investment Company Act; Other Regulations......................................................27
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3.15 Subsidiaries...................................................................................27
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3.16 Use of Proceeds................................................................................27
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3.17 Environmental Matters..........................................................................27
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3.18 Accuracy of Information, etc...................................................................28
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Section 4 CONDITIONS PRECEDENT...........................................................................28
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4.1 Conditions to Closing Date.....................................................................28
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4.2 Conditions to Initial Extension of Credit......................................................29
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4.3 Conditions to Each Extension of Credit.........................................................29
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Section 5 AFFIRMATIVE COVENANTS..........................................................................29
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5.1 Financial Statements...........................................................................29
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5.2 Certificates; Other Information................................................................30
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5.3 Payment of Obligations.........................................................................30
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5.4 Maintenance of Existence; Compliance...........................................................30
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5.5 Maintenance of Property; Insurance.............................................................31
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5.6 Inspection of Property; Books and Records; Discussions.........................................31
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5.7 Notices........................................................................................31
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5.8 Environmental Laws.............................................................................32
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5.9 Transaction with Affiliates....................................................................32
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Section 6 NEGATIVE COVENANTS.............................................................................32
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6.1 Financial Condition Covenant...................................................................32
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6.2 Liens..........................................................................................32
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6.3 Fundamental Changes............................................................................33
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6.4 Disposition of Property........................................................................33
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6.5 Negative Pledge Clauses........................................................................34
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6.6 Limitation on Restrictions on Distributions from Subsidiaries..................................34
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Section 7 EVENTS OF DEFAULT..............................................................................34
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Section 8 THE ADMINISTRATIVE AGENT.......................................................................36
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8.1 Appointment....................................................................................36
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8.2 Delegation of Duties...........................................................................36
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8.3 Exculpatory Provisions.........................................................................37
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8.4 Reliance by Administrative Agent...............................................................37
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8.5 Notice of Default..............................................................................37
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8.6 Non-Reliance on Administrative Agent and Other Lenders.........................................38
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8.7 Indemnification................................................................................38
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8.8 Administrative Agent in Its Individual Capacity................................................38
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8.9 Successor Administrative Agent.................................................................39
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Section 9 MISCELLANEOUS..................................................................................39
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9.1 Amendments and Waivers.........................................................................39
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9.2 Notices........................................................................................39
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9.3 No Waiver; Cumulative Remedies.................................................................40
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9.4 Survival of Representations and Warranties.....................................................40
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9.5 Payment of Expenses and Taxes..................................................................40
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9.6 Successors and Assigns; Participations and Assignments.........................................41
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9.7 Adjustments; Set-off...........................................................................43
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9.8 Counterparts...................................................................................43
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9.9 Severability...................................................................................44
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9.10 Integration....................................................................................44
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9.11 GOVERNING LAW..................................................................................44
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9.12 Submission To Jurisdiction; Waivers............................................................44
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9.13 Acknowledgements...............................................................................44
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9.14 Confidentiality................................................................................45
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9.15 WAIVERS OF JURY TRIAL..........................................................................45
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SCHEDULES:
1.1 Commitments
3.4 Consents, Authorizations, Filings and Notices
3.15 Subsidiaries
6.2(f) Existing Liens
6.5 Existing Negative Pledge Clauses
6.6 Existing Limitations on Restrictions on Distributions from Subsidiaries
EXHIBITS:
A Form of Closing Certificate
B Form of Assignment and Acceptance
C Form of Legal Opinion of Richard A. Rapp, Jr.
D Form of Exemption Certificate
CREDIT AGREEMENT, dated as of September 19, 2001, among
KEYSPAN CORPORATION, a New York corporation (the "Borrower"), the several banks
and other financial institutions or entities from time to time parties to this
Agreement (the "Lenders"), ABN AMRO BANK, N.V., and CITIBANK, N.A., as
co-syndication agents, FLEET NATIONAL BANK and THE ROYAL BANK OF SCOTLAND PLC,
as co-documentation agents, and THE CHASE MANHATTAN BANK, as administrative
agent.
The parties hereto hereby agree as follows:
Section 1 DEFINITIONS
1.1 Defined Terms.As used in this Agreement, the terms listed in this Section
1.1 shall have the respective meanings set forth in this Section 1.1.
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate
in effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. For
purposes hereof: "Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by the Reference Lender as its prime rate in effect
at its principal office in New York City (the Prime Rate not being intended to
be the lowest rate of interest charged by the Reference Lender in connection
with extensions of credit to debtors); "Base CD Rate" shall mean the sum of (a)
the product of (i) the Three-Month Secondary CD Rate and (ii) a fraction, the
numerator of which is one and the denominator of which is one minus the C/D
Reserve Percentage and (b) the C/D Assessment Rate; and "Three-Month Secondary
CD Rate" shall mean, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such day (or, if such day
shall not be a Business Day, the next preceding Business Day) by the Board
through the public information telephone line of the Federal Reserve Bank of New
York (which rate will, under the current practices of the Board, be published in
Federal Reserve Statistical Release H.15(519) during the week following such
day), or, if such rate shall not be so reported on such day or such next
preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 A.M., New York City time, on such day (or, if
such day shall not be a Business Day, on the next preceding Business Day) by the
Reference Lender from three New York City negotiable certificate of deposit
dealers of recognized standing selected by it. Any change in the ABR due to a
change in the Prime Rate, the Three-Month Secondary CD Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is
based upon the ABR.
"Administrative Agent": The Chase Manhattan Bank, together
with its affiliates, as the administrative agent for the Lenders under this
Agreement and the other Loan Documents, together with any of its successors.
"Affiliate": as to any Person, any other Person that, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person means
the power, directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors (or
persons performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Aggregate Exposure": with respect to any Lender at any time, the
amount of such Lender's Commitments then in effect or, if the Commitments
have been terminated, the amount of such Lender's Loans then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at any
time, the ratio (expressed as a percentage) of such Lender's Aggregate
Exposure at such time to the Aggregate Exposure of all Lenders at such
time.
"Agreement": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Applicable Margin": for each Type of Loan, the rate per annum
set forth under the relevant column heading below which corresponds with the
most current rating of the Borrower's senior unsecured long-term debt issued by
S&P, Moody's and/or Fitch respectively; provided that, through the Termination
Date, for each day the aggregate principal amount of Loans outstanding is
greater than the amount equal to 33% of the Total Commitments, the Applicable
Margin then in effect on all borrowings will be increased by 0.125% per annum.
After the Termination Date, the Applicable Margin then in effect will be
increased by 0.125% per annum.
======================= ============================ ===========================
Applicable Margin Applicable Margin
Ratings For Eurodollar Loans for ABR Loans
======================= ============================ ===========================
A/A2 0.305% 0.000%
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A-/A3 0.425% 0.000%
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BBB+/Baa1 0.525% 0.000%
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BBB/Baa2 0.625% 0.000%
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<BBB-/Baa3 0.975% 0.000%
-
======================= ============================ ===========================
Changes in the Applicable Margin shall become effective on the date on
which S&P, Moody's and/or Fitch changes the rating it has issued for the
Borrower's senior unsecured long-term debt. In the event of split ratings, if
all three agencies issue a rating and if the ratings from two agencies are at
the same level and the rating from the third agency is at a lower level, the
higher rating shall apply; if the ratings from two agencies are at the same
level and the rating from the third agency is at a higher level, the lower
rating shall apply; if all three ratings are at different levels, the rating
next below the highest of the three shall apply; if only two of such three
agencies issue a rating, the lower of such ratings shall apply; if only one of
such three agencies issues a rating, such rating shall apply.
"Approved Fund": with respect to any Lender that is a fund
that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"Asset Sale": any Disposition of property or series of related
Dispositions of property that yields gross proceeds to the Borrower or any of
its Subsidiaries (valued at the initial principal amount thereof in the case of
non-cash proceeds consisting of notes or other debt securities and valued at
fair market value in the case of other non-cash proceeds) in excess of
$50,000,000.
"Assignee": as defined in Section 9.6(c).
"Assignment and Acceptance": an Assignment and Acceptance,
substantially in the form of Exhibit B.
"Assignor": as defined in Section 9.6(c).
"Available Commitment": as to any Lender at any time, an amount equal
to the excess, if any, of (a) such Lender's Commitment then in effect over
(b) such Lender's Loans then outstanding.
"Benefitted Lender": as defined in Section 9.7(a).
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower as a date
on which the Borrower requests the relevant Lenders to make Loans
hereunder.
"Business": as defined in Section 3.17(b).
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law
to close, provided, that with respect to notices and determinations in
connection with, and payments of principal and interest on, Eurodollar
Loans, such day is also a day for trading by and between banks in Dollar
deposits in the interbank eurodollar market.
"Capital Lease Obligations": as to any Person, the obligations of such
Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under
GAAP and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such
time determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants, rights or options to purchase any of
the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition;
(b) certificates of deposit, time deposits, eurodollar time deposits or
overnight bank deposits having maturities of six months or less from the
date of acquisition issued by any Lender or by any commercial bank
organized under the laws of the United States or any state thereof having
combined capital and surplus of not less than $500,000,000; (c) commercial
paper of an issuer rated at least A-1 by Standard & Poor's Ratings Services
("S&P") or P-1 by Moody's Investors Service, Inc. ("Moody's"), or carrying
an equivalent rating by a nationally recognized rating agency, if both of
the two named rating agencies cease publishing ratings of commercial paper
issuers generally, and maturing within six months from the date of
acquisition; (d) repurchase obligations of any Lender or of any commercial
bank satisfying the requirements of clause (b) of this definition, having a
term of not more than 30 days, with respect to securities issued or fully
guaranteed or insured by the United States government; (e) securities with
maturities of one year or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States, by
any political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the securities of
which state, commonwealth, territory, political subdivision, taxing
authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's; (f) securities with maturities of six months or
less from the date of acquisition backed by standby letters of credit
issued by any Lender or any commercial bank satisfying the requirements of
clause (b) of this definition; or (g) shares of money market mutual or
similar funds which invest exclusively in assets satisfying the
requirements of clauses (a) through (f) of this definition.
"C/D Assessment Rate": for any day as applied to any ABR Loan, the
annual assessment rate in effect on such day that is payable by a member of
the Bank Insurance Fund maintained by the Federal Deposit Insurance
Corporation (the "FDIC") classified as well-capitalized and within
supervisory subgroup "B" (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R. ss. 327.4 (or any successor
provision) to the FDIC (or any successor) for the FDIC's (or such
successor's) insuring time deposits at offices of such institution in the
United States.
"C/D Reserve Percentage": for any day as applied to any ABR Loan, that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board, for determining the maximum reserve requirement
for a Depositary Institution (as defined in Regulation D of the Board as in
effect from time to time) in respect of new non-personal time deposits in
Dollars having a maturity of 30 days or more.
"Closing Date": the date on which the conditions precedent set forth
in Section 4.1 shall have been satisfied, which date shall occur on or
before September 19, 2001.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment": as to any Lender, the obligation of such Lender, if any,
to make Loans in an aggregate principal amount not to exceed the amount set
forth under the heading "Commitment" opposite such Lender's name on
Schedule 1.1 or in the Assignment and Acceptance pursuant to which such
Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The original amount of the Total Commitments
is $1,400,000,000.
"Commitment Period": the period from and including the Effective Date
to the Termination Date.
"Commonly Controlled Entity": an entity, whether or not incorporated,
that is under common control with the Borrower within the meaning of
Section 4001 of ERISA or is part of a group that includes the Borrower and
that is treated as a single employer under Section 414 of the Code.
"Competitive Loans": a loan made pursuant to Section 2.2.
"Competitive Bid": means an offer by a Lender to make a Competitive
Loan in accordance with Section 2.2.
"Competitive Bid Rate": means, with respect to any Competitive Bid,
the Margin or Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request": means a request by the Borrower for
Competitive Bids in accordance with Section.2.2.
"Confidential Information Memorandum": the Confidential Information
Memorandum dated August 2001 and furnished to the Lenders.
"Consolidated Capitalization": at any date, the sum of Consolidated
Net Worth and Consolidated Indebtedness.
"Consolidated Indebtedness": at any date, all Indebtedness of the
Borrower and its Subsidiaries at such date, determined on a consolidated
basis in accordance with GAAP, as reflected on the balance sheet.
"Consolidated Net Worth": at any date, all amounts that would, in
conformity with GAAP, be included on a consolidated balance sheet of the
Borrower and its Subsidiaries under stockholders' equity at such date.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Core Gas Distribution Business": the distribution and sale at retail
to customers of natural gas in the New York City boroughs of Brooklyn,
Queens and Staten Island, the Long Island counties of Nassau and Suffolk,
in Massachusetts and in New Hampshire, as such business is conducted by
KeySpan Energy Delivery New York, KeySpan Energy Delivery Long Island and
KeySpan Energy Delivery New England on the Effective Date.
"Default": any of the events specified in Section 7, whether or not
any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Disposition": with respect to any property, any sale, lease, sale and
leaseback, assignment, conveyance, transfer or other disposition thereof,
including the sale of Capital Stock of any Subsidiary owned by the Borrower
or any of its Subsidiaries. The terms "Dispose" and "Disposed of" shall
have correlative meanings.
"Dollars" and "$": dollars in lawful currency of the United States.
"Effective Date": the date on which the conditions precedent set forth
in Section 4.1 and Section 4.2 shall have been satisfied, which date shall
be September 20, 2001.
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements
of Law (including common law) regulating, relating to or imposing liability
or standards of conduct concerning protection of human health or the
environment, as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such
day (including basic, supplemental, marginal and emergency reserves under
any regulations of the Board or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board) maintained by a member bank of
the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum determined on
the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period
appearing on Page 3750 of the Telerate screen as of 11:00 A.M., London
time, two Business Days prior to the beginning of such Interest Period. In
the event that such rate does not appear on Page 3750 of the Telerate
screen (or otherwise on such screen), the "Eurodollar Base Rate" shall be
determined by reference to such other comparable publicly available service
for displaying eurodollar rates as may be selected by the Administrative
Agent or, in the absence of such availability, by reference to the rate at
which the Administrative Agent is offered Dollar deposits at or about 11:00
A.M., New York City time, two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where its eurodollar and
foreign currency and exchange operations are then being conducted for
delivery on the first day of such Interest Period for the number of days
comprised therein.
"Eurodollar Competitive Loan": a Competitive Loan which bears interest
based upon the Eurodollar Rate.
"Eurodollar Loans": Loans the rate of interest applicable to which is
based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
-----------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar Loans the
then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Loans shall
originally have been made on the same day).
"Event of Default": any of the events specified in Section 7, provided
that any requirement for the giving of notice, the lapse of time, or both,
has been satisfied.
"Existing Credit Agreements": the collective reference to (i) the
credit agreement, dated as of September 22, 2000, among the Borrower, the
several banks and other financial institutions or entities from time to
time parties thereto, Citibank, N.A., and ABN Amro Bank, N.V., as
co-documentation agents, J.P. Morgan Securities Inc., as syndication agent,
and the Administrative Agent and (ii) the credit agreement, dated as of
October 30, 2000, among the Borrower, the several banks and other financial
institutions or entities from time to time parties thereto, Citibank, N.A.,
as syndication agent, European American Bank, as documentation agent, and
the Administrative Agent.
"Facility Fee Rate": the rate per annum set forth below which
corresponds with the most current rating of the Borrower's senior unsecured
long-term debt issued by S&P, Moody's and/or Fitch, respectively.
=========================== =========================
Ratings Facility Fee
=========================== =========================
A/A2 0.070%
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A-/A3 0.075%
- --------------------------- -------------------------
BBB+/Baa1 0.100%
- --------------------------- -------------------------
BBB/Baa2 0.125%
- --------------------------- -------------------------
<=BBB-/Baa3 0.150%
-
=========================== =========================
Changes in the Facility Fee shall become effective on the date on
which S&P, Moody's and/or Fitch changes the rating it has issued for the
Borrower's senior unsecured long-term debt. In the event of split ratings,
if all three agencies issue a rating and if the ratings from two agencies
are at the same level and the rating from the third agency is at a lower
level, the higher rating shall apply; if the ratings from two agencies are
at the same level and the rating from the third agency is at a higher
level, the lower rating shall apply; if all three ratings are at different
levels, the rating next below the highest of the three shall apply; if only
two of such three agencies issue a rating, the lower of such ratings shall
apply; if only one of such three agencies issues a rating, such rating
shall apply.
"Federal Funds Effective Rate": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a Business Day,
the average of the quotations for the day of such transactions received by
the Reference Lender from three federal funds brokers of recognized
standing selected by it.
"Final Maturity Date": the date which is the one year anniversary of
the Termination Date.
"Fitch": Fitch Investor Services, Inc. (or any successor thereto).
"Fixed Rate": with respect to a Competitive Loan, the fixed rate of
interest per annum specified by the Lender making such Competitive Loan in
its related Competitive Bid.
"Fixed Rate Competitive Loan": Competitive Loans which bear a rate of
interest equal to the Fixed Rate.
"Funding Office": the office of the Administrative Agent specified in
Section 9.2 or such other office as may be specified from time to time by
the Administrative Agent as its funding office by written notice to the
Borrower and the Lenders.
"GAAP": generally accepted accounting principles in the United States
as in effect from time to time, except that for purposes of Section 6.1,
GAAP shall be determined on the basis of such principles in effect on the
date hereof and consistent with those used in the preparation of the most
recent audited financial statements delivered pursuant to Section 5.1(a).
In the event that any "Accounting Change" (as defined below) shall occur
and such change results in a change in the method of calculation of
financial covenants, standards or terms in this Agreement, then the
Borrower and the Administrative Agent agree to enter into negotiations in
order to amend such provisions of this Agreement so as to equitably reflect
such Accounting Changes with the desired result that the criteria for
evaluating the Borrower's financial condition shall be the same after such
Accounting Changes as if such Accounting Changes had not been made. Until
such time as such an amendment shall have been executed and delivered by
the Borrower, the Administrative Agent and the Required Lenders, all
financial covenants, standards and terms in this Agreement shall continue
to be calculated or construed as if such Accounting Changes had not
occurred. "Accounting Changes" refers to changes in accounting principles
required by the promulgation of any rule, regulation, pronouncement or
opinion by the Financial Accounting Standards Board of the American
Institute of Certified Public Accountants or, if applicable, the SEC.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance
Commissioners).
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person
(including any bank under any letter of credit) to induce the creation of
which the guaranteeing person has issued a reimbursement, counterindemnity
or similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary obligor") in
any manner, whether directly or indirectly, including any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the purchase or payment
of any such primary obligation or (2) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the
owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal
to the stated or determinable amount of the primary obligation in respect
of which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in
good faith.
"Hedge Agreements": all interest rate swaps, caps or collar agreements
or similar arrangements dealing with interest rates or currency exchange
rates or the exchange of nominal interest obligations, either generally or
under specific contingencies.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services (other
than current trade payables incurred in the ordinary course of such
Person's business), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all indebtedness
created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), (e)
all Capital Lease Obligations of such Person, (f) all obligations of such
Person, contingent or otherwise, as an account party under acceptances,
letters of credit, surety bonds or similar arrangements, (g) the
liquidation value of all preferred Capital Stock of such Person that is
redeemable at the option of the holder thereof or that has any mandatory
dividend, redemption or other required payment that could be required
thereunder prior to the date that is one year after the Final Maturity
Date, (h) all Guarantee Obligations of such Person in respect of
obligations of the kind referred to in clauses (a) through (g) above, (i)
all obligations of the kind referred to in clauses (a) through (h) above
secured by (or for which the holder of such obligation has an existing
right, contingent or otherwise, to be secured by) any Lien on property
(including accounts and contract rights) owned by such Person, whether or
not such Person has assumed or become liable for the payment of such
obligation, and (j) for the purposes of Section 7(e) only, all obligations
of such Person in respect of Hedge Agreements. The Indebtedness of any
Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such
Person is liable therefor as a result of such Person's ownership interest
in or other relationship with such entity, except to the extent the terms
of such Indebtedness expressly provide that such Person is not liable
therefor.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including copyrights, copyright licenses, patents, patent licenses,
trademarks, trademark licenses, technology, know-how and processes, and all
rights to sue at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any ABR Loan, the last day of each
March, June, September and December to occur while such Loan is outstanding
and the final maturity date of such Loan, (b) as to any Eurodollar Loan
having an Interest Period of three months or less, the last day of such
Interest Period, (c) as to any Eurodollar Loan having an Interest Period
longer than three months, each day that is three months, or a whole
multiple thereof, after the first day of such Interest Period and the last
day of such Interest Period (d) as to any Eurodollar Loan, the date of any
repayment or prepayment made in respect thereof and (e) as to any Fixed
Rate Competitive Loan, the last Business Day of the Interest Period
applicable to such Loan as specified and accepted in the applicable
Competitive Bid Request and, in the case of a Fixed Rate Competitive Loan
with an Interest Period of more than 90 days' duration (unless otherwise
specified in the applicable Competitive Bid Request), each Business Day
prior to the last Business Day of such Interest Period that occurs at
intervals of 90 days' duration after the first Business Day of such
Interest Period, and any other dates that are specified in the applicable
Competitive Bid Request as interest payment dates with respect to such
borrowing.
"Interest Period": (a) as to any Eurodollar Loan, (i) initially, the
period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three or six
months thereafter, as selected by the Borrower in its notice of borrowing
or notice of conversion, as the case may be, given with respect thereto;
and (ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending
one, two, three or six months thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less than three Business
Days prior to the last day of the then current Interest Period with respect
thereto; provided that, all of the foregoing provisions relating to
Interest Periods are subject to the following:
(A) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(B) the Borrower may not select an Interest Period that would
extend beyond the Termination Date;
(C) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(D) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan; and
(b) with respect to any Fixed Rate Competitive Loan, the period
(which shall not be less than 7 days or more than 360 days) commencing
on the date of such borrowing and ending on the date specified in the
applicable Competitive Bid Request; provided that (i) if any Interest
Period would otherwise end on a day that is not a Business Day, such
Interest Period shall extend to the next succeeding Business Day and
(ii) the Borrower may not select an Interest Period that would extend
beyond the Termination Date.
"Lenders": as defined in the preamble hereto.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease
having substantially the same economic effect as any of the foregoing).
"Loans": as defined in Section 2.1(a).
"Loan Documents": this Agreement and the Notes.
"Margin" means, with respect to any Competitive Loan bearing interest
at a rate based on the Eurodollar Rate, the marginal rate of interest, if
any, to be added to or subtracted from the Eurodollar Rate to determine the
rate of interest applicable to such Loan, as specified by the Lender making
such Loan in its related Competitive Bid.
"Material Adverse Effect": a material adverse effect on the business,
property, operations, condition (financial or otherwise) or prospects of
the Borrower and its Subsidiaries taken as a whole or the validity or
enforceability of this Agreement or any of the other Loan Documents or the
rights or remedies of the Administrative Agent or the Lenders hereunder or
thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including asbestos, polychlorinated
biphenyls and urea-formaldehyde insulation.
"Multiemployer Plan": a Plan that is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Moody's": Moody's Investors Service, Inc. (or any successor thereto).
"Net Cash Proceeds": (a) in connection with any Asset Sale, the
proceeds thereof in the form of cash and Cash Equivalents (including any
such proceeds received by way of deferred payment of principal pursuant to
a note or installment receivable or purchase price adjustment receivable or
otherwise, but only as and when received) of such Asset Sale, net of
attorneys' fees, accountants' fees, investment banking fees, amounts
required to be applied to the repayment of Indebtedness secured by a Lien
expressly permitted hereunder on any asset that is the subject of such
Asset Sale and other customary fees and expenses actually incurred in
connection therewith and net of taxes paid or reasonably estimated to be
payable as a result thereof (after taking into account any available tax
credits or deductions and any tax sharing arrangements) and (b) in
connection with any sale of Capital Stock, the cash proceeds received from
such sale, net of attorneys' fees, investment banking fees, accountants'
fees, underwriting discounts and commissions and other customary fees and
expenses actually incurred in connection therewith.
"Non-Excluded Taxes": as defined in Section 2.14(a).
"Non-U.S. Lender": as defined in Section 2.14(d).
"Notes": the collective reference to any promissory note evidencing
Loans.
"Obligations": the unpaid principal of and interest on (including
interest accruing after the maturity of the Loans and interest accruing
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the Borrower,
whether or not a claim for post-filing or post-petition interest is allowed
in such proceeding) the Loans and all other obligations and liabilities of
the Borrower to the Administrative Agent or to any Lender, whether direct
or indirect, absolute or contingent, due or to become due, or now existing
or hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, any other Loan Document or any other document made,
delivered or given in connection herewith or therewith, whether on account
of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including all fees, charges and disbursements of counsel
to the Administrative Agent or to any Lender that are required to be paid
by the Borrower pursuant hereto) or otherwise.
"Other Taxes": any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Participant": as defined in Section 9.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor).
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"Plan": at a particular time, any employee benefit plan that is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Properties": as defined in Section 3.17(a).
"Reference Lender": The Chase Manhattan Bank.
"Register": as defined in Section 9.6(d).
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC
Reg.ss.4043.
"Required Lenders": at any time, the holders of more than 50% of the
sum of the Commitments then in effect, provided that (i) for purposes of
declaring the Loans to be due and payable, and/or the Commitments to be
terminated pursuant to Section 7, and (ii) for all purposes after the
Commitments have been terminated, such term shall mean the holders of more
than 50% of the Loans outstanding.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer": the chief executive officer, president,
treasurer, secretary or chief financial officer of the Borrower, but in any
event, with respect to financial matters, the treasurer or chief financial
officer of the Borrower.
"Revolving Facility": the Commitments and the Loans made hereunder.
"Revolving Percentage": as to any Lender at any time, the percentage
which such Lender's Commitment then constitutes of the Total Commitments
(or, at any time after the Commitments shall have expired or terminated,
the percentage which the aggregate principal amount of such Lender's Loans
then outstanding constitutes of the aggregate principal amount of the Loans
then outstanding.)
"S&P": Standard & Poor's Rating Services, a division of The
McGraw-Hill Companies, Inc. (or any successor thereto).
"SEC": the Securities and Exchange Commission, any successor thereto
and any analogous Governmental Authority.
"Significant Subsidiary": at any particular time, any Subsidiary and
any other Affiliate of the Borrower which is engaged in the Core Gas
Distribution Business.
"Single Employer Plan": any Plan that is covered by Title IV of ERISA,
but that is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that, as of any
date of determination, (a) the amount of the "present fair saleable value"
of the assets of such Person will, as of such date, exceed the amount of
all "liabilities of such Person, contingent or otherwise", as of such date,
as such quoted terms are determined in accordance with applicable federal
and state laws governing determinations of the insolvency of debtors, (b)
the present fair saleable value of the assets of such Person will, as of
such date, be greater than the amount that will be required to pay the
liability of such Person on its debts as such debts become absolute and
matured, (c) such Person will not have, as of such date, an unreasonably
small amount of capital with which to conduct its business, and (d) such
Person will be able to pay its debts as they mature. For purposes of this
definition, (i) "debt" means liability on a "claim", and (ii) "claim" means
any (x) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y) right
to an equitable remedy for breach of performance if such breach gives rise
to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the time
owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower.
"Termination Date": September 19, 2002.
"Total Commitments": at any time, the aggregate amount of the
Commitments then in effect.
"Transferee": any Assignee or Participant.
"Type": as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
"United States": the United States of America.
1.2 Other Definitional Provisions. (a) Unless otherwise specified therein, all
terms defined in this Agreement shall have the defined meanings when used
in the other Loan Documents or any certificate or other document made or
delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any certificate or
other document made or delivered pursuant hereto or thereto, (i)
accounting terms relating to the Borrower and its Subsidiaries not
defined in Section 1.1 and accounting terms partly defined in Section
1.1, to the extent not defined, shall have the respective meanings
given to them under GAAP, (ii) the words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without
limitation", (iii) the word "incur" shall be construed to mean incur,
create, issue, assume, become liable in respect of or suffer to exist
(and the words "incurred" and "incurrence" shall have correlative
meanings), and (iv) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash,
Capital Stock, securities, revenues, accounts, leasehold interests and
contract rights.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and
Section, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
Section 2 AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments. (a) Subject to the terms and conditions hereof, each Lender
severally agrees to make revolving credit loans ("Loans") to the Borrower
from time to time during the Commitment Period in an aggregate principal
amount at any one time outstanding which does not exceed the amount of such
Lender's Commitment. During the Commitment Period the Borrower may use the
Commitments by borrowing, prepaying the Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. The
Loans may from time to time be Eurodollar Loans, ABR Loans or Competitive
Loans, as determined by the Borrower and notified to the Administrative
Agent in accordance with Sections 2.3 and 2.7.
(b) Any Loans outstanding on the Termination Date will mature and be
payable on the Final Maturity Date.
2.2 Competitive Bid Procedure. (a) Subject to the terms and conditions set
forth herein, from time to time the Borrower may request Competitive Bids
and may (but shall not have any obligation to) accept Competitive Bids and
borrow Competitive Loans; provided that while Competitive Loans are
outstanding, the Available Commitments shall be reduced by the aggregate
amount of such Competitive Loans. To request Competitive Bids, the Borrower
shall notify the Administrative Agent of such request by telephone, in the
case of a Eurodollar Loan, not later than 11:00 a.m., New York City time,
four Business Days before the date of the proposed borrowing and, in the
case of an ABR Loan, not later than 10:00 a.m., New York City time, one
Business Day before the date of the proposed borrowing; provided that the
Borrower may submit up to (but not more than) three Competitive Bid
Requests on the same day, but a Competitive Bid Request shall not be made
within five Business Days after the date of any previous Competitive Bid
Request, unless any and all such previous Competitive Bid Requests shall
have been withdrawn or all Competitive Bids received in response thereto
rejected. Each such telephonic Competitive Bid Request shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a
written Competitive Bid Request in a form approved by the Administrative
Agent and signed by the Borrower. Each such telephonic and written
Competitive Bid Request shall specify the following information:
(i) the aggregate amount of the requested Loan;
(ii) the date of such Loan, which shall be a Business Day;
(iii)whether such Loan is to be a Eurodollar Loan or a Fixed Rate
Competitive Loan;
(iv) the maturity for such Loan, which shall range from 7 to 360 days
(but not to extend past the Termination Date; and
(v) the Interest Period, if applicable, for such Loan, which shall be
a period contemplated by the definition of the term "Interest
Period".
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to the Borrower in response to a Competitive Bid
Request. Each Competitive Bid by a Lender must be in a form approved
by the Administrative Agent and must be received by the Administrative
Agent by telecopy, in the case of a Eurodollar Loan, not later than
9:30 a.m., New York City time, three Business Days before the proposed
date of such Competitive Loan, and in the case of an ABR Loan, not
later than 9:30 a.m., New York City time, on the proposed date of such
Competitive Loan. Competitive Bids that do not conform substantially
to the form approved by the Administrative Agent may be rejected by
the Administrative Agent, and the Administrative Agent shall notify
the applicable Lender as promptly as practicable. Each Competitive Bid
shall specify (i) the principal amount (which shall be a minimum of
$5,000,000 and an integral multiple of $1,000,000 and which may equal
the entire principal amount of the Competitive Loan requested by the
Borrower) of the Competitive Loan or Loans that the Lender is willing
to make, (ii) the Competitive Bid Rate or Rates at which the Lender is
prepared to make such Loan or Loans (expressed as a percentage rate
per annum in the form of a decimal to no more than four decimal
places) and (iii) the Interest Period applicable to each such Loan and
the last day thereof.
(c) The Administrative Agent shall promptly notify the Borrower by
telecopy of the Competitive Bid Rate and the principal amount
specified in each Competitive Bid and the identity of the Lender that
shall have made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Borrower may
accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form
approved by the Administrative Agent, whether and to what extent it
has decided to accept or reject each Competitive Bid, in the case of a
Eurodollar Loan, not later than 10:30a.m., New York City time, three
Business Days before the proposed date of the Competitive Loan, and in
the case of an ABR Loan, not later than 10:30a.m., New York City time,
on the proposed date of the Competitive Loan; provided that (i) the
failure of the Borrower to give such notice shall be deemed to be a
rejection of each Competitive Bid, (ii) the Borrower shall not accept
a Competitive Bid made at a particular Competitive Bid Rate if the
Borrower rejects a Competitive Bid made at a lower Competitive Bid
Rate, (iii) the aggregate amount of the Competitive Bids accepted by
the Borrower shall not exceed the aggregate amount of the requested
Competitive Loan specified in the related Competitive Bid Request,
(iv) to the extent necessary to comply with clause (iii) above, the
Borrower may accept Competitive Bids at the same Competitive Bid Rate
in part, which acceptance, in the case of multiple Competitive Bids at
such Competitive Bid Rate, shall be made pro rata in accordance with
the amount of each such Competitive Bid, and (v) except pursuant to
clause (iv) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum
principal amount of $5,000,000 and an integral multiple of $1,000,000;
provided further that if a Competitive Loan must be in an amount less
than $5,000,000 because of the provisions of clause (iv) above, such
Competitive Loan may be for a minimum of $1,000,000 or any integral
multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple Competitive Bids at a particular
Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by
the Borrower. A notice given by the Borrower pursuant to this
paragraph shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender by
telecopy whether or not its Competitive Bid has been accepted (and, if
so, the amount and Competitive Bid Rate so accepted), and each
successful bidder will thereupon become bound, subject to the terms
and conditions hereof, to make the Competitive Loan in respect of
which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive Bid in
its capacity as a Lender, it shall submit such Competitive Bid
directly to the Borrower at least one quarter of an hour earlier than
the time by which the other Lenders are required to submit their
Competitive Bids to the Administrative Agent pursuant to paragraph (b)
of this Section.
2.3 Procedure for Loan Borrowing. The Borrower may borrow under the Commitments
during the Commitment Period on any Business Day, provided that the
Borrower shall give the Administrative Agent irrevocable notice (which
notice must be received by the Administrative Agent prior to 12:00 Noon,
New York City time, (a) three Business Days prior to the requested
Borrowing Date, in the case of Eurodollar Loans, or (b) one Business Day
prior to the requested Borrowing Date, in the case of ABR Loans),
specifying (i) the amount and Type of Loans to be borrowed, (ii) the
requested Borrowing Date and (iii) in the case of Eurodollar Loans, the
respective amounts of each such Type of Loan and the respective lengths of
the initial Interest Period therefor. Any Loans made on the Effective Date
shall initially be ABR Loans. Each borrowing under the Commitments shall be
in an amount equal to (x) in the case of ABR Loans, $1,000,000 or a whole
multiple thereof (or, if the then aggregate Available Commitments are less
than $1,000,000, such lesser amount) and (y) in the case of Eurodollar
Loans, $10,000,000 or a whole multiple of $1,000,000 in excess thereof.
Upon receipt of any such notice from the Borrower, the Administrative Agent
shall promptly notify each Lender thereof. Each Lender will make the amount
of its pro rata share of each borrowing available to the Administrative
Agent for the account of the Borrower at the Funding Office prior to 12:00
Noon, New York City time, on the Borrowing Date requested by the Borrower
in funds immediately available to the Administrative Agent. Such borrowing
will then be made available to the Borrower by the Administrative Agent
crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
2.4 Facility Fees, etc.(a) The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a facility fee for the period from and
including the Closing Date until all of the Obligations have been repaid
and the Commitments have been terminated, computed at the Facility Fee Rate
on the Revolving Percentage of such Lender of the total amount of the
Revolving Facility (drawn or undrawn), payable quarterly in arrears on the
last day of each March, June, September and December and on the Final
Maturity Date, commencing on the first of such dates to occur after the
date hereof.
(b) The Borrower agrees to pay to the Administrative Agent the fees in the
amounts and on the dates previously agreed to in writing by the
Borrower and the Administrative Agent.
2.5 Termination or Reduction of Commitments. The Borrower shall have the right,
upon not less than three Business Days' notice to the Administrative Agent,
to terminate the Commitments or, from time to time, to reduce the amount of
the Commitments; provided that no such termination or reduction of
Commitments shall be permitted if, after giving effect thereto and to any
prepayments of the Loans made on the effective date thereof, the aggregate
principal amount of (i) the Loans outstanding and (ii) any Competitive
Loans outstanding, would exceed the Total Commitments. Any such reduction
shall be in an amount equal to $1,000,000, or a whole multiple thereof, and
shall reduce permanently the Commitments then in effect. The Administrative
Agent will, in accordance with its usual practice, notify the Lenders of
each such termination or reduction.
2.6 Optional Prepayments. The Borrower may at any time and from time to time
prepay the Loans, in whole or in part, without premium or penalty, upon
irrevocable notice delivered to the Administrative Agent at least three
Business Days prior thereto in the case of Eurodollar Loans and at least
one Business Day prior thereto in the case of ABR Loans, which notice shall
specify the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans or ABR Loans; provided, that if a Eurodollar Loan is
prepaid on any day other than the last day of the Interest Period
applicable thereto, the Borrower shall also pay any amounts owing pursuant
to Section 2.15. Upon receipt of any such notice, the Administrative Agent
shall promptly notify each Lender thereof. If any such notice is given, the
amount specified in such notice shall be due and payable on the date
specified therein, together with (except in the case of Loans that are ABR
Loans) accrued interest to such date on the amount prepaid. Partial
prepayments of Loans shall be in an aggregate principal amount of
$1,000,000 or a whole multiple thereof. Competitive Loans may not be
prepaid without the consent of the relevant Lender.
2.7 Conversion and Continuation Options. (a) The Borrower may elect from time
to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable notice
of such election, provided that any such conversion of Eurodollar Loans may
only be made on the last day of an Interest Period with respect thereto.
The Borrower may elect from time to time to convert ABR Loans to Eurodollar
Loans by giving the Administrative Agent at least three Business Days'
prior irrevocable notice of such election (which notice shall specify the
length of the initial Interest Period therefor), provided that no ABR Loan
may be converted into a Eurodollar Loan when any Event of Default has
occurred and is continuing and the Administrative Agent or the Required
Lenders have determined in its or their sole discretion not to permit such
conversions. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the expiration of
the then current Interest Period with respect thereto by the Borrower
giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth
in Section 1.1, of the length of the next Interest Period to be
applicable to such Loans, provided that no Eurodollar Loan may be
continued as such when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Required Lenders
have determined in its or their sole discretion not to permit such
continuations, and provided, further, that if the Borrower shall fail
to give any required notice as described above in this paragraph or if
such continuation is not permitted pursuant to the preceding proviso
such Loans shall be automatically converted to ABR Loans on the last
day of such then expiring Interest Period. Upon receipt of any such
notice the Administrative Agent shall promptly notify each relevant
Lender thereof.
2.8 Limitations on Eurodollar Tranches. Notwithstanding anything to the
contrary in this Agreement, all borrowings, conversions and continuations
of Eurodollar Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections
so that, (a) after giving effect thereto, the aggregate principal amount of
the Eurodollar Loans comprising each Eurodollar Tranche shall be equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no
more than ten Eurodollar Tranches shall be outstanding at any one time.
2.9 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall bear
interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurodollar Rate determined for such day plus
the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to the ABR
plus the Applicable Margin.
(c) Each Competitive Loan shall bear interest in accordance with the
applicable Competitive Bid Rate.
(d) (i) If all or a portion of the principal amount of any Loan shall not
be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per
annum equal to the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions of this Section plus 2%, and (ii)
if all or a portion of any interest payable on any Loan or any
facility fee or other amount payable hereunder shall not be paid when
due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum equal to
the rate then applicable to ABR Loans plus 2%, in each case, with
respect to clauses (i) and (ii) above, from the date of such
non-payment until such amount is paid in full.
(e) Interest shall be payable in arrears on each Interest Payment Date,
provided that interest accruing pursuant to paragraph (d) of this
Section shall be payable from time to time on demand.
2.10 Computation of Interest and Fees. (a) Interest and fees payable pursuant
hereto shall be calculated on the basis of a 360-day year for the actual
days elapsed, except that, with respect to ABR Loans the rate of interest
on which is calculated on the basis of the Prime Rate, the interest thereon
shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed. The Administrative Agent shall as
soon as practicable notify the Borrower and the relevant Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the ABR or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the
day on which such change becomes effective. The Administrative Agent shall
as soon as practicable notify the Borrower and the relevant Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent pursuant
to any provision of this Agreement shall be conclusive and binding on the
Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative
Agent in determining any interest rate pursuant to Section 2.9.
2.11 Inability to Determine Interest Rate. If prior to the first day of any
Interest Period:
(a) the Administrative Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or that such Eurodollar rate is not available; or
(b) the Administrative Agent shall have received notice from the Required
Lenders (or, in the case of a Eurodollar Competitive Loan, the Lender
that is required to make such Loan) that the Eurodollar Rate
determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to such Lenders or Lender, as
the case may be (as conclusively certified by such Lenders, or Lender
as the case may be) of making or maintaining their affected Loans
during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice
thereof to the Borrower and the relevant Lenders as soon as
practicable thereafter. If such notice is given (w) any Eurodollar
Loans requested to be made on the first day of such Interest Period
shall be made as ABR Loans, (x) any Loans that were to have been
converted on the first day of such Interest Period to Eurodollar Loans
shall be continued as ABR Loans, (y) any outstanding Eurodollar Loans
shall be converted, on the last day of the then-current Interest
Period, to ABR Loans and (z) any request by the Borrower for a
Eurodollar Competitive Loan shall be ineffective. Until such notice
has been withdrawn by the Administrative Agent, no further Eurodollar
Loans shall be made or continued as such, nor shall the Borrower have
the right to convert Loans to Eurodollar Loans.
2.12 Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from
the Lenders hereunder, each payment by the Borrower on account of any
facility fee and any reduction of the Commitments of the Lenders shall be
made pro rata according to the respective Revolving Percentage as the case
may be, of the relevant Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of
principal of and interest on the Loans shall be made pro rata
according to the respective outstanding principal amounts of the Loans
then held by the Lenders.
(c) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be
made prior to 12:00 Noon, New York City time, on the due date thereof
to the Administrative Agent, for the account of the Lenders, at the
Funding Office, in Dollars and in immediately available funds. The
Administrative Agent shall distribute such payments to the Lenders
promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on the Eurodollar Loans) becomes due
and payable on a day other than a Business Day, such payment shall be
extended to the next succeeding Business Day. If any payment on a
Eurodollar Loan becomes due and payable on a day other than a Business
Day, the maturity thereof shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day. In the case
of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then
applicable rate during such extension.
(d) Unless the Administrative Agent shall have been notified in writing by
any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to
the Administrative Agent, the Administrative Agent may assume that
such Lender is making such amount available to the Administrative
Agent, and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If
such amount is not made available to the Administrative Agent by the
required time on the Borrowing Date therefor, such Lender shall pay to
the Administrative Agent, on demand, such amount with interest thereon
at a rate equal to the daily average Federal Funds Effective Rate for
the period until such Lender makes such amount immediately available
to the Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this
paragraph shall be conclusive in the absence of manifest error. If
such Lender's share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such
Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum
applicable to ABR Loans, on demand, from the Borrower.
(e) Unless the Administrative Agent shall have been notified in writing by
the Borrower prior to the date of any payment being made hereunder
that the Borrower will not make such payment to the Administrative
Agent, the Administrative Agent may assume that the Borrower is making
such payment, and the Administrative Agent may, but shall not be
required to, in reliance upon such assumption, make available to the
Lenders their respective pro rata shares of a corresponding amount. If
such payment is not made to the Administrative Agent by the Borrower
within three Business Days of such required date, the Administrative
Agent shall be entitled to recover, on demand, from each Lender to
which any amount which was made available pursuant to the preceding
sentence, such amount with interest thereon at the rate per annum
equal to the daily average Federal Funds Effective Rate. Nothing
herein shall be deemed to limit the rights of the Administrative Agent
or any Lender against the Borrower.
2.13 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not
having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement or any Eurodollar Loan made by it, or change
the basis of taxation of payments to such Lender in respect thereof
(except for Non-Excluded Taxes covered by Section 2.14 and changes in
the rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of
funds by, any office of such Lender that is not otherwise included in
the determination of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable. If
any Lender becomes entitled to claim any additional amounts pursuant to this
paragraph, it shall promptly notify the Borrower (with a copy to the
Administrative Agent) of the event by reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any change
in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or
any corporation controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law)
from any Governmental Authority made subsequent to the date hereof
shall have the effect of reducing the rate of return on such Lender's
or such corporation's capital as a consequence of its obligations
hereunder to a level below that which such Lender or such corporation
could have achieved but for such adoption, change or compliance
(taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such
Lender to be material, then from time to time, after submission by
such Lender to the Borrower (with a copy to the Administrative Agent)
of a written request therefor, the Borrower shall pay to such Lender
such additional amount or amounts as will compensate such Lender for
such reduction; provided that the Borrower shall not be required to
compensate a Lender pursuant to this paragraph for any amounts
incurred more than six months prior to the date that such Lender
notifies the Borrower of such Lender's intention to claim compensation
therefor; and provided further that, if the circumstances giving rise
to such claim have a retroactive effect, then such six-month period
shall be extended to include the period of such retroactive effect.
(c) Notwithstanding the foregoing provisions of this Section, a Lender
shall not be entitled to compensation pursuant to this Section in
respect of any Competitive Loan if the Requirement of Law that would
otherwise entitle it to such compensation shall have been publicly
announced prior to submission of the Competitive Bid pursuant to which
such Loan was made.
(d) A certificate as to any additional amounts payable pursuant to this
Section submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest
error. The obligations of the Borrower pursuant to this Section shall
survive the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder.
2.14 Taxes. (a) All payments made by the Borrower under this Agreement shall be
made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Administrative Agent
or any Lender as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising
solely from the Administrative Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") or Other Taxes are required to be
withheld from any amounts payable to the Administrative Agent or any Lender
hereunder, the amounts so payable to the Administrative Agent or such
Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all Non-Excluded
Taxes and Other Taxes) interest or any such other amounts payable hereunder
at the rates or in the amounts specified in this Agreement, provided,
however, that the Borrower shall not be required to increase any such
amounts payable to any Lender with respect to any Non-Excluded Taxes (i)
that are attributable to such Lender's failure to comply with the
requirements of paragraph (d) or (e) of this Section or (ii) that are
United States withholding taxes imposed on amounts payable to such Lender
at the time the Lender becomes a party to this Agreement, except to the
extent that such Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with respect to
such Non-Excluded Taxes pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send
to the Administrative Agent for its own account or for the account of
the relevant Lender, as the case may be, a certified copy of an
original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes or Other
Taxes when due to the appropriate taxing authority or fails to remit
to the Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Administrative
Agent and the Lenders for any incremental taxes, interest or penalties
that may become payable by the Administrative Agent or any Lender as a
result of any such failure.
(d) Each Lender (or Transferee) that is not a citizen or resident of the
United States of America, a corporation, partnership or other entity
created or organized in or under the laws of the United States of
America (or any jurisdiction thereof), or any estate or trust that is
subject to federal income taxation regardless of the source of its
income (a "Non-U.S. Lender") shall deliver to the Borrower and the
Administrative Agent (or, in the case of a Participant, to the Lender
from which the related participation shall have been purchased) two
copies of either U.S. Internal Revenue Service Form W-8BEN or Form
W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption from
U.S. federal withholding tax under Section 871(h) or 881(c) of the
Code with respect to payments of "portfolio interest", a statement
substantially in the form of Exhibit D and a Form W-8BEN, or any
subsequent versions thereof or successors thereto, properly completed
and duly executed by such Non-U.S. Lender claiming complete exemption
from, or a reduced rate of, U.S. federal withholding tax on all
payments by the Borrower under this Agreement and the other Loan
Documents. Such forms shall be delivered by each Non-U.S. Lender on or
before the date it becomes a party to this Agreement (or, in the case
of any Participant, on or before the date such Participant purchases
the related participation). In addition, each Non-U.S. Lender shall
deliver such forms promptly upon the obsolescence or invalidity of any
form previously delivered by such Non-U.S. Lender. Each Non-U.S.
Lender shall promptly notify the Borrower at any time it determines
that it is no longer in a position to provide any previously delivered
certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this paragraph, a Non-U.S.
Lender shall not be required to deliver any form pursuant to this
paragraph that such Non-U.S. Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which
the Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to
the Borrower (with a copy to the Administrative Agent), at the time or
times prescribed by applicable law or reasonably requested by the
Borrower, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made
without withholding or at a reduced rate, provided that such Lender is
legally entitled to complete, execute and deliver such documentation
and in such Lender's judgment such completion, execution or submission
would not materially prejudice the legal position of such Lender.
(f) The agreements in this Section shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.15 Indemnity. The Borrower agrees to indemnify each Lender and to hold each
Lender harmless from any loss or expense that such Lender may sustain or
incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower
has given a notice requesting the same in accordance with the provisions of
this Agreement, (b) default by the Borrower in making any prepayment of or
conversion from Eurodollar Loans after the Borrower has given a notice
thereof in accordance with the provisions of this Agreement, (c) the making
of a prepayment of Eurodollar Loans on a day that is not the last day of an
Interest Period with respect thereto or (d) the making of a prepayment of a
Competitive Loan. Such indemnification may include an amount equal to the
excess, if any, of (i) the amount of interest that would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that
would have commenced on the date of such failure) in each case at the
applicable rate of interest for such Loans provided for herein (excluding,
however, the Applicable Margin included therein, if any) over (ii) the
amount of interest (as reasonably determined by such Lender) that would
have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank
eurodollar market. A certificate as to any amounts payable pursuant to this
Section submitted to the Borrower by any Lender shall be conclusive in the
absence of manifest error. This covenant shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.16 Change of Lending Office. Each Lender agrees that, upon the occurrence of
any event giving rise to the operation of Section 2.13 or 2.14(a) with
respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such
Lender) to designate another lending office for any Loans affected by such
event with the object of avoiding the consequences of such event; provided,
that such designation is made on terms that, in the sole judgment of such
Lender, cause such Lender and its lending office(s) to suffer no economic,
legal or regulatory disadvantage, and provided, further, that nothing in
this Section shall affect or postpone any of the obligations of any
Borrower or the rights of any Lender pursuant to Section 2.13 or 2.14(a).
2.17 Replacement of Lenders. The Borrower shall be permitted to replace any
Lender that (a) requests reimbursement for amounts owing pursuant to
Section 2.13 or 2.14(a) or (b) defaults in its obligation to make Loans
hereunder, with a replacement financial institution; provided that (i) such
replacement does not conflict with any Requirement of Law, (ii) no Event of
Default shall have occurred and be continuing at the time of such
replacement, (iii) prior to any such replacement, such Lender shall have
taken no action under Section 2.16 so as to eliminate the continued need
for payment of amounts owing pursuant to Section 2.13 or 2.14(a), (iv) the
replacement financial institution shall purchase, at par, all Loans and
other amounts owing to such replaced Lender on or prior to the date of
replacement, (v) the Borrower shall be liable to such replaced Lender under
Section 2.15 if any Eurodollar Loan or Eurodollar Competitive Loan owing to
such replaced Lender shall be purchased other than on the last day of the
Interest Period relating thereto, (vi) the replacement financial
institution, if not already a Lender, shall be reasonably satisfactory to
the Administrative Agent, (vii) the replaced Lender shall be obligated to
make such replacement in accordance with the provisions of Section 9.6
(provided that the Borrower shall be obligated to pay the registration and
processing fee referred to therein), (viii) until such time as such
replacement shall be consummated, the Borrower shall pay all additional
amounts (if any) required pursuant to Section 2.13 or 2.14(a), as the case
may be, and (ix) any such replacement shall not be deemed to be a waiver of
any rights that the Borrower, the Administrative Agent or any other Lender
shall have against the replaced Lender.
Section 3 REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans the Borrower hereby represents and warrants to
the Administrative Agent and each Lender that:
3.1 Financial Condition. The audited consolidated balance sheets of the
Borrower at December 31, 1999 and December 31, 2000, and the related
consolidated statements of income and of cash flows for the fiscal year
ended on December 31, 1999 and the fiscal year ended on December 31, 2000,
reported on by and accompanied by an unqualified report from Arthur
Andersen L.P., present fairly the consolidated financial condition of the
Borrower as at such date, and the consolidated results of its operations
and its consolidated cash flows for the respective fiscal years then ended.
The unaudited consolidated balance sheet of the Borrower as at June 30,
2001 and the related unaudited consolidated statements of income and cash
flows for the six-month period ended on such date, present fairly the
consolidated financial condition of the Borrower as at such date, and the
consolidated results of its operations and its consolidated cash flows for
the six-month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as approved by
the aforementioned firm of accountants and disclosed therein). The Borrower
and its Subsidiaries do not have any material Guarantee Obligations,
contingent liabilities and liabilities for taxes, or any long-term leases
or unusual forward or long-term commitments, including any interest rate or
foreign currency swap or exchange transaction or other obligation in
respect of derivatives, that are not reflected in the most recent financial
statements referred to in this paragraph, except Guarantee Obligations of
Indebtedness of the Borrower and/or any of its Subsidiaries so long as the
Indebtedness in respect of which such Guarantee Obligations arise is
reflected in such financial statements. During the period from July 1, 2001
to and including the date hereof there has been no Disposition by the
Borrower of any material part of its business or property.
3.2 No Change. Since December 31, 2000 there has been no development or event
that has had or could reasonably be expected to have a Material Adverse
Effect.
3.3 Corporate Existence; Compliance with Law. Each of the Borrower and its
Significant Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b)
has the corporate power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly
qualified as a foreign corporation and in good standing under the laws of
each jurisdiction where its ownership, lease or operation of property or
the conduct of its business requires such qualification and (d) is in
compliance with all Requirements of Law except to the extent that the
failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
3.4 Corporate Power; Authorization; Enforceable Obligations. The Borrower has
the corporate power and authority, and the legal right, to make, deliver
and perform the Loan Documents and to borrow hereunder. The Borrower has
taken all necessary corporate action to authorize the execution, delivery
and performance of the Loan Documents and to authorize the borrowings on
the terms and conditions of this Agreement. No consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or any of the Loan Documents, except
consents, authorizations, filings and notices described in Schedule 3.4,
which consents, authorizations, filings and notices have been obtained or
made and are in full force and effect. Each Loan Document has been duly
executed and delivered on behalf of the Borrower. This Agreement
constitutes, and each other Loan Document upon execution will constitute, a
legal, valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and
by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
3.5 No Legal Bar. The execution, delivery and performance of this Agreement and
the other Loan Documents, the borrowings hereunder and the use of the
proceeds thereof will not violate any Requirement of Law or any Contractual
Obligation of the Borrower or any of its Subsidiaries and will not result
in, or require, the creation or imposition of any Lien on any of their
respective properties or revenues pursuant to any Requirement of Law or any
such Contractual Obligation. No Requirement of Law or Contractual
Obligation applicable to the Borrower or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
3.6 Litigation. No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the
Borrower, threatened by or against the Borrower or any of its Subsidiaries
or against any of their respective properties or revenues (a) with respect
to any of the Loan Documents or any of the transactions contemplated hereby
or thereby, or (b) that could reasonably be expected to have a Material
Adverse Effect.
3.7 No Default. Neither the Borrower nor any of its Subsidiaries is in default
under or with respect to any of its Contractual Obligations in any respect
that could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each of the Borrower and its Subsidiaries has
title in fee simple to, or a valid leasehold interest in, all its real
property, and good title to, or a valid leasehold interest in, all its
other property, except to the extent failure to have such title could not
reasonably be expected to have a Material Adverse Effect, and none of such
property is subject to any Lien except as permitted by Section 6.2.
3.9 Intellectual Property. The Borrower and each of its Subsidiaries owns, or
is licensed to use, all Intellectual Property necessary for the conduct of
its business as currently conducted, except to the extent failure to have
such ownership or license could not reasonably be expected to have a
Material Adverse Effect. No material claim has been asserted and is pending
by any Person challenging or questioning the use of any Intellectual
Property or the validity or effectiveness of any Intellectual Property,
except to the extent any such claim could not reasonably be expected to
have a Material Adverse Effect, nor does the Borrower know of any valid
basis for any such claim. The use of Intellectual Property by the Borrower
and its Subsidiaries does not infringe on the rights of any Person in any
material respect, except to the extent any such infringement could not
reasonably be expected to have a Material Adverse Effect.
3.10 Taxes. Each of the Borrower and each of its Subsidiaries has filed or
caused to be filed all Federal, state and other material tax returns that
are required to be filed and has paid all taxes shown to be due and payable
on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of
its property by any Governmental Authority (other than any the amount or
validity of that are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have
been provided on the books of the Borrower or its Subsidiaries, as the case
may be); no material tax Lien has been filed, and, to the knowledge of the
Borrower, no material claim is being asserted, with respect to any such
tax, fee or other charge.
3.11 Federal Regulations. No part of the proceeds of any Loans will be used for
"buying" or "carrying" any "margin stock" within the respective meanings of
each of the quoted terms under Regulation U as now and from time to time
hereafter in effect or for any purpose that violates the provisions of the
Regulations of the Board.
3.12 Labor Matters. Except as, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect: (a) there are no strikes or
other labor disputes against the Borrower or any of its Subsidiaries
pending or, to the knowledge of the Borrower, threatened; (b) hours worked
by and payment made to employees of the Borrower and its Subsidiaries have
not been in violation of the Fair Labor Standards Act or any other
applicable Requirement of Law dealing with such matters; and (c) all
payments due from the Borrower or any of its Subsidiaries on account of
employee health and welfare insurance have been paid or accrued as a
liability on the books of the Borrower or the relevant Subsidiary.
3.13 ERISA. Neither a Reportable Event nor an "accumulated funding deficiency"
(within the meaning of Section 412 of the Code or Section 302 of ERISA) has
occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each
Plan has complied in all material respects with the applicable provisions
of ERISA and the Code. No termination of a Single Employer Plan which could
reasonably be expected to result in a Material Adverse Effect has occurred,
and no Lien in favor of the PBGC or a Plan has arisen, during such
five-year period. The present value of all accrued benefits under each
Single Employer Plan (based on those assumptions used to fund such Plans)
did not, as of the last annual valuation date prior to the date on which
this representation is made or deemed made, exceed the value of the assets
of such Plan allocable to such accrued benefits by a material amount.
Neither the Borrower nor any Commonly Controlled Entity has had a complete
or partial withdrawal from any Multiemployer Plan that has resulted or
could reasonably be expected to result in a material liability under ERISA,
and neither the Borrower nor any Commonly Controlled Entity would become
subject to any material liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the
date on which this representation is made or deemed made. No such
Multiemployer Plan is in Reorganization or Insolvent.
3.14 Investment Company Act; Other Regulations. Neither the Borrower nor any of
its Subsidiaries is (i) an "investment company", or a company "controlled"
by an "investment company", within the meaning of the Investment Company
Act of 1940. The Borrower is a registered "holding company" under the
Public Utility Holding Company Act of 1935, as amended, and will be subject
to regulation by the Securities and Exchange Commission. Neither the
Borrower nor any of its Subsidiaries is subject to regulation under any
Requirement of Law (other than Regulation X of the Board) that limits its
ability to incur Indebtedness.
3.15 Subsidiaries. Except as disclosed to the Administrative Agent by the
Borrower in writing from time to time after the Closing Date, (a) Schedule
3.15 sets forth the name and jurisdiction of incorporation of each
Significant Subsidiary and, as to each such Subsidiary, the percentage of
each class of Capital Stock owned by the Borrower and (b) there are no
outstanding subscriptions, options, warrants, calls, rights or other
agreements or commitments (other than stock options granted to employees or
directors and directors' qualifying shares) of any nature relating to any
Capital Stock of the Borrower or any Significant Subsidiary, except as
created by the Loan Documents.
3.16 Use of Proceeds. The proceeds of the Loans shall be used for general
corporate purposes (including commercial paper back-up liquidity) of the
Borrower and its Subsidiaries in the ordinary course of business.
3.17 Environmental Matters. Except as, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect:
(a) the facilities or properties owned, leased or operated by the Borrower
and any of its Subsidiaries (the "Properties") do not contain, and
have not previously contained, any Materials of Environmental Concern
in amounts or concentrations or under circumstances that constitute or
constituted a violation of, or could give rise to liability under, any
Environmental Law;
(b) neither the Borrower nor any of its Subsidiaries has received or is
aware of any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the
Properties or the business operated by the Borrower or any of its
Subsidiaries (the "Business"), nor does the Borrower have knowledge or
reason to believe that any such notice will be received or is being
threatened;
(c) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to
a location that could give rise to liability under, any Environmental
Law, nor have any Materials of Environmental Concern been generated,
treated, stored or disposed of at, on or under any of the Properties
in violation of, or in a manner that could give rise to liability
under, any applicable Environmental Law;
(d) no judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will
be named as a party with respect to the Properties or the Business,
nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with
respect to the Properties or the Business;
(e) there has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or
related to the operations of the Borrower or any Subsidiary in
connection with the Properties or otherwise in connection with the
Business, in violation of or in amounts or in a manner that could give
rise to liability under Environmental Laws;
(f) the Properties and all operations at the Properties are in compliance,
and have in the last five years been in compliance, with all
applicable Environmental Laws, and there is no contamination at, under
or about the Properties or violation of any Environmental Law with
respect to the Properties or the Business; and
(g) neither the Borrower nor any of its Subsidiaries has assumed any
liability of any other Person under Environmental Laws.
3.18 Accuracy of Information, etc. No statement or information contained in this
Agreement, the Notes, the Confidential Information Memorandum or any other
document, certificate or statement furnished by or on behalf of the
Borrower to the Administrative Agent or the Lenders, or any of them, for
use in connection with the transactions contemplated by this Agreement,
contained as of the date such statement, information, document or
certificate was so furnished (or, in the case of the Confidential
Information Memorandum, as of the date of this Agreement), any untrue
statement of a material fact or omitted to state a material fact necessary
to make the statements contained herein or therein not misleading. There is
no fact known to the Borrower that could reasonably be expected to have a
Material Adverse Effect that has not been expressly disclosed herein, in
the Confidential Information Memorandum or in any other documents,
certificates and statements furnished to the Administrative Agent and the
Lenders for use in connection with the transactions contemplated hereby.
Section 4 CONDITIONS PRECEDENT
4.1 Conditions to Closing Date. The Closing Date shall be the date upon which
the following conditions precedent shall have been fulfilled:
(a) Credit Agreement. The Administrative Agent shall have received this
Agreement, executed and delivered by the Administrative Agent, the
Borrower and each Person listed on Schedule 1.1.
(b) Financial Statements. The Lenders shall have received (i) audited
consolidated financial statements of the Borrower for the fiscal year
ended December 31, 1999 and for the 2000 fiscal year and (ii)
unaudited interim consolidated financial statements of the Borrower
for each quarterly period ended subsequent to the date of the latest
applicable financial statements delivered pursuant to clause (i) of
this paragraph as to which such financial statements are available,
and such financial statements shall not, in the reasonable judgment of
the Lenders, reflect any material adverse change in the consolidated
financial condition of the Borrower, as reflected in the financial
statements or projections contained in the Confidential Information
Memorandum.
(c) Approvals. All governmental and third party approvals necessary in
connection with the continuing operations of the Borrower and its
Subsidiaries and the transactions contemplated hereby shall have been
obtained and be in full force and effect.
(d) Fees. The Lenders and the Administrative Agent shall have received all
fees required to be paid, and all expenses for which invoices have
been presented (including the reasonable fees and expenses of legal
counsel), on or before the Closing Date.
(e) Closing Certificate. The Administrative Agent shall have received,
with a counterpart for each Lender, a certificate of the Borrower,
dated the Closing Date, substantially in the form of Exhibit A, with
appropriate insertions and attachments.
(f) Legal Opinions. The Administrative Agent shall have received the
executed legal opinion of Richard A. Rapp, Jr., vice president, deputy
general counsel and secretary of the Borrower and its Subsidiaries,
substantially in the form of Exhibit C. Such legal opinion shall cover
such other matters incident to the transactions contemplated by this
Agreement as the Administrative Agent may reasonably require.
(g) Reaffirmation of Commercial Paper Ratings. The Borrower shall have
maintained the rating of its commercial paper of at least A2 from S&P
and P2 from Moody's.
4.2 Conditions to Initial Extension of Credit. The agreement of each Lender to
make the initial extension of credit requested to be made by it hereunder
is subject to the satisfaction, prior to or concurrently with the making of
such extension of credit, of the conditions contained in Section 4.1 and of
the following condition precedent:
(a) Termination of Existing Credit Agreements. The Existing Credit
Agreements shall have been terminated and all amounts owed thereunder
shall have been paid.
4.3 Conditions to Each Extension of Credit.The agreement of each Lender to make
any extension of credit requested to be made by it on any date (including
its initial extension of credit) is subject to the satisfaction of the
following conditions precedent:
(a) Representations and Warranties.Each of the representations and
warranties made by the Borrower in or pursuant to this Agreement shall
be true and correct on and as of such date as if made on and as of
such date. (b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date of such extension of credit that the
conditions contained in this Section 4.3 have been satisfied.
Section 5 AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect or any Loan or other amount is owing to any Lender or the Administrative
Agent hereunder, the Borrower shall and shall cause each of its Subsidiaries to:
5.1 Financial Statements. Furnish to the Administrative Agent and each Lender:
(a) as soon as available, but in any event within 120 days after the end
of each fiscal year of the Borrower, a copy of the audited
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such fiscal year and the related audited
consolidated statements of income and of cash flows for such fiscal
year, setting forth in each case in comparative form the figures for
the previous fiscal year, reported on without a "going concern" or
like qualification or exception, or qualification arising out of the
scope of the audit, by Arthur Andersen L.P. or other independent
certified public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 60 days after
the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income
and of cash flows for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
5.2 Certificates; Other Information. Furnish to the Administrative Agent and
each Lender (or, in the case of clause (c), to the relevant Lender):
(a) concurrently with the delivery of any financial statements pursuant to
Section 5.1, (i) a certificate of a Responsible Officer stating that,
to the best of such Responsible Officer's knowledge, the Borrower
during such period has observed or performed all of its covenants and
other agreements, and satisfied every condition, contained in this
Agreement to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event
of Default except as specified in such certificate and (ii) in the
case of quarterly or annual financial statements, a compliance
certificate containing all information and calculations necessary for
determining compliance with the provisions of Section 6.1 of this
Agreement referred to therein as of the last day of the fiscal quarter
or fiscal year of the Borrower, as the case may be;
(b) within five days after the same are sent, copies of all financial
statements and reports that the Borrower sends to the holders of any
class of its debt securities or public equity securities and, within
five days after the same are filed, copies of all financial statements
and reports that the Borrower may make to, or file with, the SEC; and
(c) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where (i) the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have
been provided on the books of the Borrower or its Subsidiaries, as the case
may be or (ii) the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
5.4 Maintenance of Existence; Compliance. (a) In the case of the Borrower and
each of its Significant Subsidiaries, (i) preserve, renew and keep in full
force and effect its corporate existence and (ii) take all reasonable
action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business, except, in each case, as
otherwise permitted by Section 5.4 and except, in the case of clause (ii)
above, to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect; and (b) comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to
comply therewith could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect.
5.5 Maintenance of Property; Insurance. (a) Keep all property useful and
necessary in its business in good working order and condition, ordinary
wear and tear excepted and (b) maintain with financially sound and
reputable insurance companies insurance on all its property in at least
such amounts and against at least such risks (but including, in any event,
public liability, product liability and business interruption) as are
usually insured against in the same general area by companies engaged in
the same or a similar business.
5.6 Inspection of Property; Books and Records; Discussions. (a) Keep proper
books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities and
(b) permit representatives of any Lender to visit and inspect any of its
properties and examine and make abstracts from any of its books and records
at any reasonable time and as often as may reasonably be desired and to
discuss the business, operations, properties and financial and other
condition of the Borrower and its Subsidiaries with officers and employees
of the Borrower and its Subsidiaries and with its independent certified
public accountants.
5.7 Notices. Promptly give notice to the Administrative Agent and each Lender
of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual Obligation
of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding that may exist at any time between the
Borrower or any of its Subsidiaries and any Governmental Authority,
that, in either case, if not cured or if adversely determined, as the
case may be, could reasonably be expected to have a Material Adverse
Effect;
(c) any litigation or proceeding affecting the Borrower or any of its
Subsidiaries in which the amount involved is $25,000,000 or more and
not covered by insurance or in which injunctive or similar relief is
sought;
(d) the following events, as soon as possible and in any event within 30
days after the Borrower knows or has reason to know thereof: (i) the
occurrence of any Reportable Event with respect to any Plan, a failure
to make any required contribution to a Plan, the creation of any Lien
in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan
or (ii) the institution of proceedings or the taking of any other
action by the PBGC or the Borrower or any Commonly Controlled Entity
or any Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan; and
(e) any development or event that has had or could reasonably be expected
to have a Material Adverse Effect.
Each notice pursuant to this Section 5.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower or the relevant Subsidiary proposes
to take with respect thereto.
5.8 Environmental Laws. (a) Comply in all material respects with, and ensure
compliance in all material respects by all tenants and subtenants, if any,
with, all applicable Environmental Laws, and obtain and comply in all
material respects with and maintain, and ensure that all tenants and
subtenants obtain and comply in all material respects with and maintain,
any and all licenses, approvals, notifications, registrations or permits
required by applicable Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with
all lawful orders and directives of all Governmental Authorities
regarding Environmental Laws.
5.9 Transaction with Affiliates. Enter into any transaction, including any
purchase, sale, lease or exchange of property, the rendering of any service
or the payment of any management, advisory or similar fees, with any
Affiliates (other than the Borrower) upon fair and reasonable terms no less
favorable to the Borrower or such Subsidiary, as the case may be, than it
would obtain in a comparable arm's length transaction with a Person that is
not an Affiliate, subject to any requirement under the Public Utility
Holding Company Act of 1935, as amended.
Section 6 NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect or any Loan or other amount is owing to any Lender or the Administrative
Agent hereunder, the Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:
6.1 Financial Condition Covenant. Permit the ratio of Consolidated Indebtedness
to Consolidated Capitalization as at the last day of any fiscal quarter to
exceed 0.68:1.0.
6.2 Liens. Create, incur, assume or suffer to exist any Lien upon any of its
property, whether now owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or that are being contested in good faith
by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business that are
not overdue for a period of more than 30 days or that are being
contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business that, in the aggregate,
are not substantial in amount and that do not in any case materially
detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the Borrower or
any of its Subsidiaries;
(f) Liens in existence on the date hereof listed on Schedule 6.2(f),
securing Indebtedness outstanding on the date hereof, provided that no
such Lien is spread to cover any additional property after the Closing
Date and that the amount of Indebtedness secured thereby is not
increased;
(g) Liens securing Indebtedness of the Borrower or any other Subsidiary
incurred to finance or refinance the acquisition, construction or
improvement of fixed or capital assets (including, without limitation,
Capital Lease Obligations), provided that (i) such Liens shall be
created (A) substantially simultaneously with the acquisition of such
fixed or capital assets or (B) subsequent thereto to the extent
securing financing that replaces or refinances the previous funding or
financing for such acquisition, construction or improvement, (ii) such
Liens do not at any time encumber any property other than the property
financed by such Indebtedness and (iii) the aggregate amount secured
by any such Liens is in customary proportion to the value of the
assets subject to such lien, as reasonably determined in good faith by
the Borrower;
(h) any interest or title of a lessor under any lease entered into by the
Borrower or any other Subsidiary in the ordinary course of its
business and covering only the assets so leased; and
(i) Liens not otherwise permitted by this Section so long as neither (i)
the aggregate outstanding principal amount of the obligations secured
thereby nor (ii) the aggregate fair market value (determined as of the
date such Lien is incurred) of the assets subject thereto exceeds (as
to the Borrower and all Subsidiaries) $25,000,000 at any one time.
6.3 Fundamental Changes. In the case of the Borrower and any Significant
Subsidiary, enter into any merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or Dispose of, all or substantially all of its property or
business, except that:
(a) any Subsidiary of the Borrower may be merged or consolidated with or
into the Borrower or a Significant Subsidiary of the Borrower
(provided that the Borrower, the Significant Subsidiary or another
Significant Subsidiary, as the case may be, shall be the continuing or
surviving corporation);
(b) any Significant Subsidiary of the Borrower may Dispose of any or all
of its assets (upon voluntary liquidation or otherwise) to the
Borrower; and
(c) any Disposition permitted under Section 6.4.
6.4 Disposition of Property. (a) Dispose of any of the Borrower's or any
Significant Subsidiaries' property, whether now owned or hereafter
acquired, or, in the case of any Significant Subsidiary, issue or sell any
shares of such Significant Subsidiary's Capital Stock to any Person,
except:
(i) the Disposition of obsolete or worn out property in the ordinary
course of business;
(ii) the sale of inventory in the ordinary course of business;
(iii) Dispositions permitted by Section 6.3 (b); and
(iv) the sale or issuance of any Significant Subsidiary's Capital Stock to
the Borrower or any other Significant Subsidiary; and
(b) Permit any Asset Sale, other than any permitted under clause 6.4(a)
above, except to the extent that the Net Cash Proceeds thereof
received by the Borrower or any of its Subsidiaries shall be applied
on the date of receipt thereof (or as soon as reasonably possible) to
reduce Consolidated Indebtedness by an amount equal to such Net Cash
Proceeds.
6.5 Negative Pledge Clauses. Enter into or suffer to exist or become effective
any agreement that prohibits or limits the ability of the Borrower or any
of its Subsidiaries to create, incur, assume or suffer to exist any Lien
upon any of its property or revenues, whether now owned or hereafter
acquired, other than (a) this Agreement, (b) any agreements governing any
purchase money Liens or Capital Lease Obligations otherwise permitted
hereby (in which case, any prohibition or limitation shall only be
effective against the assets financed thereby) and (c) any agreements
listed on Schedule 6.5 and any extensions, renewals or replacements thereof
having substantially similar provisions with respect thereto.
6.6 Limitation on Restrictions on Distributions from Subsidiaries. Create or
otherwise cause or permit to exist or become effective any consensual
encumbrance or consensual restriction on the ability of any Subsidiary to
pay dividends or make any other distribution on its Capital Stock, other
than any encumbrance or restriction pursuant to an agreement in effect on
the Closing Date as set forth on Schedule 6.6, or imposed by any
Governmental Authority.
Section 7 EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan when due in
accordance with the terms hereof; or the Borrower shall fail to pay
any interest on any Loan, or any other amount payable hereunder or
under any other Loan Document, within five days after any such
interest or other amount becomes due in accordance with the terms
hereof; or
(b) any representation or warranty made or deemed made by the Borrower
herein or that is contained in any certificate, document or financial
or other statement furnished by it at any time under or in connection
with this Agreement shall prove to have been inaccurate in any
material respect on or as of the date made or deemed made; or
(c) the Borrower shall default in the observance or performance of any
agreement contained in clause (i) or (ii) of Section 5.4(a), Section
5.7(a) or Section 6 of this Agreement; or
(d) the Borrower shall default in the observance or performance of any
other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this
Section), and such default shall continue unremedied for a period of
30 days after notice to the Borrower from the Administrative Agent or
any Lender; or
(e) the Borrower or any of its Subsidiaries shall (i) default in making
any payment of any principal of any Indebtedness (including any
Guarantee Obligation, but excluding the Loans) on the scheduled or
original due date with respect thereto; or (ii) default in making any
payment of any interest on any such Indebtedness beyond the period of
grace, if any, provided in the instrument or agreement under which
such Indebtedness was created; or (iii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or
condition exist, the effect of such default or other event or
condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or (in the
case of any such Indebtedness constituting a Guarantee Obligation) to
become payable; provided, that a default, event or condition described
in clause (i), (ii) or (iii) of this paragraph (e) shall not at any
time constitute an Event of Default unless, at such time, one or more
defaults, events or conditions of the type described in clauses (i),
(ii) and (iii) of this paragraph (e) shall have occurred and be
continuing with respect to Indebtedness the outstanding principal
amount of which exceeds in the aggregate $25,000,000; or
(f) (i) the Borrower, any of its Significant Subsidiaries or, should such
commencement have or reasonably be expected to have a Material Adverse
Effect, any of its other Subsidiaries, shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of
a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or the
Borrower, any of its Significant Subsidiaries or, should such
assignment have or be reasonably expected to have a Material Adverse
Effect, any of its other Subsidiaries, shall make a general assignment
for the benefit of its creditors; or (ii) there shall be commenced
against the Borrower, any of its Significant Subsidiaries, or, should
such commencement have or be reasonably expected to have a Material
Adverse Effect, any of its other Subsidiaries, any case, proceeding or
other action of a nature referred to in clause (i) above that (A)
results in the entry of an order for relief or any such adjudication
or appointment or (B) remains undismissed, undischarged or unbonded
for a period of 60 days; or (iii) there shall be commenced against the
Borrower, any of its Significant Subsidiaries, or, should such
commencement have or be reasonably expected to have a Material Adverse
Effect, any of its other Subsidiaries, any case, proceeding or other
action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of
its assets that results in the entry of an order for any such relief
that shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) the
Borrower, any of its Significant Subsidiaries, or, should any such
action have or be reasonably expected to have a Material Adverse
Effect, any of its other Subsidiaries, shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) the Borrower, any of its Significant Subsidiaries,
or, should any such failure or inability have or be reasonably
expected to have a Material Adverse Effect, any of its other
Subsidiaries, shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they become due;
or
(g) (i) any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving
any Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect
to any Plan or any Lien in favor of the PBGC or a Plan shall arise on
the assets of the Borrower or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed,
to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely
to result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, (v) the Borrower or any Commonly Controlled Entity
shall, or in the reasonable opinion of the Required Lenders is likely
to, incur any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer Plan or (vi) any
other event or condition shall occur or exist with respect to a Plan;
and in each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions, if any,
could, in the sole judgment of the Required Lenders, reasonably be
expected to have a Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against the Borrower
or any of its Subsidiaries involving in the aggregate a liability (not
paid or fully covered by insurance as to which the relevant insurance
company has acknowledged coverage) of $25,000,000 or more, and all
such judgments or decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within 30 days from the entry thereof;
or
(i) any "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) shall become, or obtain rights (whether by means or
warrants, options or otherwise) to become, the "beneficial owner" (as
defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly
or indirectly, of more than 20% of the outstanding common stock of the
Borrower;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents shall immediately become due and payable,
and (B) if such event is any other Event of Default, either or both of the
following actions may be taken: (i) with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Commitments to
be terminated forthwith, whereupon the Commitments shall immediately terminate;
and (ii) with the consent of the Required Lenders, the Administrative Agent may,
or upon the request of the Required Lenders, the Administrative Agent shall, by
notice to the Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the other Loan
Documents to be due and payable forthwith, whereupon the same shall immediately
become due and payable. Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived by the Borrower.
Section 8 THE ADMINISTRATIVE AGENT
8.1 Appointment. Each Lender hereby irrevocably designates and appoints the
Administrative Agent as the agent of such Lender under this Agreement and
the other Loan Documents, and each such Lender irrevocably authorizes the
Administrative Agent, in such capacity, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into
this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by
it or such Person under or in connection with this Agreement or any other
Loan Document (except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to
have resulted from its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Loan Document
or in any certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Loan Document or for any failure of the
Borrower to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
8.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including counsel to the Borrower),
independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent may deem and treat the payee of any Note as
the owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other
Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders (or, if so specified by this Agreement, all Lenders)
as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that
may be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other
Loan Documents in accordance with a request of the Required Lenders (or, if
so specified by this Agreement, all Lenders), and such request and any
action taken or failure to act pursuant thereto shall be binding upon all
the Lenders and all future holders of the Loans.
8.5 Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender
or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In
the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders
(or, if so specified by this Agreement, all Lenders); provided that unless
and until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event
of Default as it shall deem advisable in the best interests of the Lenders.
8.6 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates
have made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs
of the Borrower or any affiliate of the Borrower, shall be deemed to
constitute any representation or warranty by the Administrative Agent to
any Lender. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of
the Borrower and its affiliates and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that
it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation
as it deems necessary to inform itself as to the business, operations,
property, financial and other condition and creditworthiness of the
Borrower and its affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Borrower or
any affiliate of the Borrower that may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
8.7 Indemnification. The Lenders agree to indemnify the Administrative Agent in
its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably
according to their respective Aggregate Exposure Percentages in effect on
the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall
have terminated and the Loans shall have been paid in full, ratably in
accordance with such Aggregate Exposure Percentages immediately prior to
such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever that may at any time (whether before
or after the payment of the Loans) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of,
the Commitments, this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements that are found
by a final and nonappealable decision of a court of competent jurisdiction
to have resulted from the Administrative Agent's gross negligence or
willful misconduct. The agreements in this Section shall survive the
payment of the Loans and all other amounts payable hereunder.
8.8 Administrative Agent in Its Individual Capacity. The Administrative Agent
and its affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower as though the
Administrative Agent was not the Administrative Agent. With respect to its
Loans made or renewed by it, the Administrative Agent shall have the same
rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not the Administrative
Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
8.9 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 30 days' notice to the Lenders and the Borrower.
If the Administrative Agent shall resign as Administrative Agent under this
Agreement, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders, which successor agent shall (unless an
Event of Default under Section 7(a) or Section 7(f) with respect to the
Borrower shall have occurred and be continuing) be subject to approval by
the Borrower (which approval shall not be unreasonably withheld or
delayed), whereupon such successor agent shall succeed to the rights,
powers and duties of the Administrative Agent, and the term "Administrative
Agent" shall mean such successor agent effective upon such appointment and
approval, and the former Administrative Agent's rights, powers and duties
as Administrative Agent shall be terminated, without any other or further
act or deed on the part of such former Administrative Agent or any of the
parties to this Agreement or any holders of the Loans. If no successor
agent has accepted appointment as Administrative Agent by the date that is
30 days following a retiring Administrative Agent's notice of resignation,
the retiring Administrative Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall assume and perform all of
the duties of the Administrative Agent hereunder until such time, if any,
as the Required Lenders appoint a successor agent as provided for above.
After any retiring Administrative Agent's resignation as Administrative
Agent, the provisions of this Section 8 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement and the other Loan Documents.
Section 9 MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement, any other Loan Document,
nor any terms hereof or thereof may be amended, supplemented or modified
except in accordance with the provisions of this Section 9.1. The Required
Lenders and the Borrower may, or, with the written consent of the Required
Lenders, the Administrative Agent and the Borrower may, from time to time,
(a) enter into written amendments, supplements or modifications hereto for
the purpose of adding any provisions to this Agreement or changing in any
manner the rights of the Lenders or of the Borrower hereunder or (b) waive,
on such terms and conditions as the Required Lenders or the Administrative
Agent, as the case may be, may specify in such instrument, any of the
requirements of this Agreement or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) eliminate or reduce any voting rights
under this Section 9.1, forgive the principal amount or extend the final
scheduled date of maturity of any Loan, reduce the stated rate of any
interest or fee payable hereunder or extend the scheduled date of any
payment thereof, or increase the amount or extend the expiration date of
any Lender's Commitments, in each case without the consent of each Lender
directly affected thereby; (ii) reduce any percentage specified in the
definition of Required Lenders, consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this Agreement and
the other Loan Documents, in each case without the consent of all Lenders;
(iii) amend, modify or waive any provision of Section 8 without the consent
of the Administrative Agent. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and
shall be binding upon the Borrower, the Lenders, the Administrative Agent
and all future holders of the Loans. In the case of any waiver, the
Borrower, the Lenders and the Administrative Agent shall be restored to
their former position and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent
or other Default or Event of Default, or impair any right consequent
thereon.
9.2 Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by telecopy),
and, unless otherwise expressly provided herein, shall be deemed to have
been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice,
when received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to
such other address as may be hereafter notified by the respective parties
hereto:
The Borrower: KeySpan Corporation
One MetroTech Center
Brooklyn, New York 11201
Attention: Treasurer
Telecopy: (718) 246-9798
The Administrative Agent: The Chase Manhattan Bank
Brooklyn Middle Market Bank Group
Four MetroTech Center
Brooklyn, New York 11245
Attention: Peter D'Agostino
Telecopy: (718) 242-3837
with a copy to: The Chase Manhattan Bank
Agency Bank Services
One Chase Manhattan Plaza
New York, New York
Telecopy: (212) 552-7400
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement and the making of the Loans and
other extensions of credit hereunder.
9.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or reimburse
the Administrative Agent for all its reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this
Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration
of the transactions contemplated hereby and thereby, including the
reasonable fees and disbursements of counsel to the Administrative Agent
and filing and recording fees and expenses, with statements with respect to
the foregoing to be submitted to the Borrower prior to the Closing Date (in
the case of amounts to be paid on the Closing Date) and from time to time
thereafter on a quarterly basis or such other periodic basis as the
Administrative Agent shall deem appropriate, (b) to pay or reimburse each
Lender and the Administrative Agent for all its costs and expenses incurred
in connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including
the fees and disbursements of counsel (including the allocated fees and
expenses of in-house counsel) to each Lender and of counsel to the
Administrative Agent, (c) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees
and any and all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and other taxes, if any, that may be payable or
determined to be payable in connection with the execution and delivery of,
or consummation or administration of any of the transactions contemplated
by, or any amendment, supplement or modification of, or any waiver or
consent under or in respect of, this Agreement, the other Loan Documents
and any such other documents, and (d) to pay, indemnify, and hold each
Lender and the Administrative Agent and their respective officers,
directors, employees, affiliates, agents and controlling persons (each, an
"Indemnitee") harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to
the execution, delivery, enforcement, performance and administration of
this Agreement, the other Loan Documents and any such other documents,
including any of the foregoing relating to the use of proceeds of the Loans
or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower any of its
Subsidiaries or any of the Properties and the reasonable fees and expenses
of legal counsel in connection with claims, actions or proceedings by any
Indemnitee against the Borrower under any Loan Document (all the foregoing
in this clause (d), collectively, the "Indemnified Liabilities"), provided,
that the Borrower shall have no obligation hereunder to any Indemnitee with
respect to Indemnified Liabilities to the extent such Indemnified
Liabilities are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from the gross negligence or
willful misconduct of such Indemnitee. Without limiting the foregoing, and
to the extent permitted by applicable law, the Borrower agrees not to
assert and to cause its Subsidiaries not to assert, and hereby waives and
agrees to cause its Subsidiaries to so waive, all rights for contribution
or any other rights of recovery with respect to all claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature, under or related to Environmental Laws, that any
of them might have by statute or otherwise against any Indemnitee. All
amounts due under this Section 9.5 shall be payable promptly after written
demand therefor. The agreements in this Section 9.5 shall survive repayment
of the Loans and all other amounts payable hereunder.
9.6 Successors and Assigns; Participations and Assignments.(a) This Agreement
shall be binding upon and inure to the benefit of the Borrower, the
Lenders, the Administrative Agent, all future holders of the Loans and
their respective successors and assigns, except that the Borrower may not
assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Lender.
(b) Any Lender may, without the consent of the Borrower, in accordance with
applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a "Participant") participating
interests in any Loan owing to such Lender, any Commitments of such Lender
or any other interest of such Lender hereunder and under the other Loan
Documents. In the event of any such sale by a Lender of a participating
interest 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 Loan for all purposes under this
Agreement and the other Loan Documents, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. In no event shall any Participant
under any such participation have any right to approve any amendment or
waiver of any provision of any Loan Document, or any consent to any
departure by the Borrower therefrom, except to the extent that such
amendment, waiver or consent would reduce the principal of, or interest on,
the Loans or any fees payable hereunder, or postpone the date of the final
maturity of the Loans, in each case to the extent subject to such
participation. The Borrower agrees that if amounts outstanding under this
Agreement and the Loans are due or unpaid, or shall have been declared or
shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same
extent as if the amount of its participating interest were owing directly
to it as a Lender under this Agreement, provided that, in purchasing such
participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in Section 9.7(a)
as fully as if it were a Lender hereunder. The Borrower also agrees that
each Participant shall be entitled to the benefits of Sections 2.13, 2.14
and 2.15 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if it was a Lender; provided that, in the
case of Section 2.14, such Participant shall have complied with the
requirements of said Section and provided, further, that no Participant
shall be entitled to receive any greater amount pursuant to any such
Section 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.
(c) Any Lender (an "Assignor") may, in accordance with applicable law, at any
time and from time to time assign to any Lender, any affiliate of any
Lender or any Approved Fund or, with the consent of the Borrower and the
Administrative Agent (which, in each case, shall not be unreasonably
withheld or delayed), to an additional bank, financial institution or other
entity (an "Assignee") all or, except in the case of an outstanding
Competitive Loan, any part of its rights or obligations under this
Agreement pursuant to an Assignment and Acceptance, executed by such
Assignee, such Assignor and any other Person whose consent is required
pursuant to this paragraph, and delivered to the Administrative Agent for
its acceptance and recording in the Register; provided that no such
assignment to an Assignee (other than any Lender, any affiliate of any
Lender or any Approved Fund) shall be in an aggregate principal amount of
less than $1,000,000 (other than in the case of an assignment of all of a
Lender's interests under this Agreement), unless otherwise agreed by the
Borrower and the Administrative Agent. For purposes of the proviso
contained in the preceding sentence, the amount described therein shall be
aggregated in respect of each Lender and its related Approved Funds, if
any. Upon such execution, delivery, acceptance and recording, from and
after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with Commitments and/or Loans as set
forth therein, and (y) the Assignor thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of an Assignor's rights and obligations under this
Agreement, such Assignor shall cease to be a party hereto). Notwithstanding
any provision of this Section 9.6, the consent of the Borrower shall not be
required for any assignment that occurs when an Event of Default pursuant
to Section 7(f) shall have occurred and be continuing with respect to the
Borrower.
(d) The Administrative Agent shall, on behalf of the Borrower, maintain at its
address referred to in Section 9.2 a copy of each Assignment and Acceptance
delivered to it and a register (the "Register") for the recordation of the
names and addresses of the Lenders and the Commitments of, and the
principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, the Administrative Agent and the Lenders shall
treat each Person whose name is recorded in the Register as the owner of
the Loans and any Notes evidencing the Loans recorded therein for all
purposes of this Agreement. Any assignment of any Loan, whether or not
evidenced by a Note, shall be effective only upon appropriate entries with
respect thereto being made in the Register (and each Note shall expressly
so provide). Any assignment or transfer of all or part of a Loan evidenced
by a Note shall be registered on the Register only upon surrender for
registration of assignment or transfer of the Note evidencing such Loan,
accompanied by a duly executed Assignment and Acceptance, and thereupon one
or more new Notes shall be issued to the designated Assignee.
(e) Upon its receipt of an Assignment and Acceptance executed by an Assignor,
an Assignee and any other Person whose consent is required by Section
9.6(c), together with payment to the Administrative Agent of a registration
and processing fee of $3,500, the Administrative Agent shall (i) promptly
accept such Assignment and Acceptance and (ii) record the information
contained therein in the Register on the effective date determined pursuant
thereto.
(f) For avoidance of doubt, the parties to this Agreement acknowledge that the
provisions of this Section 9.6 concerning assignments of Loans and Notes
relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including any pledge or
assignment by a Lender of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.
(g) The Borrower, upon receipt of written notice from the relevant Lender,
agrees to issue Notes to any Lender requiring Notes to facilitate
transactions of the type described in paragraph (f) above.
9.7 Adjustments; Set-off. (a) Except to the extent that this Agreement
expressly provides for payments to be allocated to a particular Lender, if
any Lender (a "Benefitted Lender") shall, at any time after the Loans and
other amounts payable hereunder shall immediately become due and payable
pursuant to Section 7, receive any payment of all or part of the
Obligations owing to it (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section
7(f), or otherwise), in a greater proportion than any such payment to any
other Lender, if any, in respect of the Obligations owing to such other
Lender, such Benefitted Lender shall purchase for cash from the other
Lenders a participating interest in such portion of the Obligations owing
to each such other Lender, as shall be necessary to cause such Benefitted
Lender to share the excess payment ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such Benefitted Lender, such purchase shall be
rescinded, and the purchase price returned, to the extent of such recovery,
but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law,
each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to
the extent permitted by applicable law, upon any amount becoming due
and payable by the Borrower hereunder (whether at the stated maturity,
by acceleration or otherwise), to set off and appropriate and apply
against such amount any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct
or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for
the credit or the account of the Borrower, as the case may be. Each
Lender agrees promptly to notify the Borrower and the Administrative
Agent after any such setoff and application made by such Lender,
provided that the failure to give such notice shall not affect the
validity of such setoff and application.
9.8 Counterparts. This Agreement may be executed by one or more of the parties
to this Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof. A set of the copies of this Agreement signed
by all the parties shall be lodged with the Borrower and the Administrative
Agent.
9.9 Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.10 Integration. This Agreement and the other Loan Documents represent the
agreement of the Borrower, the Administrative Agent and the Lenders with
respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or
any Lender relative to subject matter hereof not expressly set forth or
referred to herein or in the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.12 Submission To Jurisdiction; Waivers. The Borrower hereby irrevocably and
unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Agreement and the other Loan Documents, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New
York, the courts of the United States for the Southern District of New
York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to the
Borrower, as the case may be at its address set forth in Section 9.2
or at such other address of which the Administrative Agent shall have
been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right
to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may
have to claim or recover in any legal action or proceeding referred to
in this Section any special, exemplary, punitive or consequential
damages.
9.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and
the relationship between the Administrative Agent and the Lenders, on
one hand, and the Borrower, on the other hand, in connection herewith
or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents or
otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.
9.14 Confidentiality. Each of the Administrative Agent and each Lender agrees to
keep confidential all non-public information provided to it by the Borrower
pursuant to this Agreement that is designated by the Borrower as
confidential; provided that nothing herein shall prevent the Administrative
Agent or any Lender from disclosing any such information (a) to the
Administrative Agent, any other Lender, any affiliate of any Lender or any
Approved Fund, (b) to any Transferee or prospective Transferee that agrees
to comply with the provisions of this Section, (c) to its employees,
directors, agents, attorneys, accountants and other professional advisors
or those of any of its affiliates, (d) upon the request or demand of any
Governmental Authority, (e) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if requested or required to do so in connection
with any litigation or similar proceeding, (g) that has been publicly
disclosed, (h) to the National Association of Insurance Commissioners or
any similar organization or any nationally recognized rating agency that
requires access to information about a Lender's investment portfolio in
connection with ratings issued with respect to such Lender, or (i) in
connection with the exercise of any remedy hereunder or under any other
Loan Document.
9.15 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
(End of Page)
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
KEYSPAN CORPORATION
By: /s/ Michael J. Taunton
----------------------------
Name: Michael J. Taunton
Title: Treasurer
THE CHASE MANHATTAN BANK, as Administrative
Agent and as a Lender
By: /s/ Peter J. D'Agostino
----------------------------
Name: Peter J. D'Agostino
Title: Vice-President