EXHIBIT 10.61
EXECUTION COPY
CREDIT AGREEMENT
dated as of March 18, 1999
among
EDISON MISSION ENERGY
and
CERTAIN COMMERCIAL LENDING INSTITUTIONS,
And
CITICORP USA, INC.
as the Administrative Agent for the Lenders
Arranged by
CREDIT SUISSE FIRST BOSTON, XXXXXX BROTHERS INC.,
XXXXXXX XXXXX BARNEY INC. and SOCIETE GENERALE
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS............................................................... -1-
1.1 Defined Terms................................................................... -1-
1.2 Use of Defined Terms............................................................ -12-
1.3 Cross-References................................................................ -12-
1.4 Accounting and Financial Determinations......................................... -12-
ARTICLE II
COMMITMENTS AND BORROWING PROCEDURES........................................................... -13-
2.1 Commitments..................................................................... -13-
2.1.1 Commitments................................................................. -13-
2.1.2 Lenders Not Required To Make Loans.......................................... -13-
2.2 Reduction of the Total Commitment Amount........................................ -13-
2.3 Borrowing Procedure............................................................. -13-
2.4 Continuation and Conversion Elections........................................... -14-
2.5 Funding......................................................................... -14-
2.6 Renewal of Commitments.......................................................... -15-
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES..................................................... -15-
3.1 Repayments and Prepayments...................................................... -15-
3.1.1 Optional Prepayments........................................................ -15-
3.2 Interest Provisions............................................................. -16-
3.2.1 Rates....................................................................... -16-
3.2.2 Post-Maturity Rates; Default Rates.......................................... -17-
3.2.3 Payment Dates............................................................... -17-
3.2.4 Interest Rate Determination................................................. -18-
3.3 Fees............................................................................ -18-
3.3.1 Facility Fee................................................................ -18-
3.3.2 Utilization Fee............................................................. -18-
3.3.3 Administrative Agent's Fee and Miscellaneous Fees........................... -18-
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS......................................................... -18-
4.1 LIBO Rate Lending Unlawful...................................................... -18-
4.2 Inability to Determine Rates.................................................... -19-
4.3 Increased LIBO Rate Loan Costs.................................................. -19-
4.4 Obligation to Mitigate.......................................................... -20-
4.5 Funding Losses.................................................................. -20-
4.6 Increased Capital Costs......................................................... -21-
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Page
4.7 Taxes.......................................................................... -21-
4.8 Payments, Computations......................................................... -23-
4.9 Sharing of Payments............................................................ -23-
4.10 Setoff........................................................................ -24-
4.11 Replacement of Lender......................................................... -24-
ARTICLE V
CONDITIONS TO LOANS........................................................................... -25-
5.1 Conditions to Effectiveness..................................................... -25-
5.1.1 Delivery of Loan Documents................................................ -25-
5.1.2 Officer's Certificate..................................................... -25-
5.1.3 Resolutions............................................................... -25-
5.1.4 Opinions of Counsel....................................................... -25-
5.1.5 Closing Fees, Expenses.................................................... -25-
5.1.6 Financial Statements...................................................... -26-
5.1.7 Debt Ratings.............................................................. -26-
5.2 All Loans..................................................................... -26-
5.2.1 Representations and Warranties; No Default................................. -26-
5.2.2 Borrowing Request.......................................................... -26-
5.2.3 Satisfactory Legal Form.................................................... -26-
ARTICLE VI
REPRESENTATIONS AND WARRANTIES................................................................ -27-
6.1 Organization; Power; Compliance with Law and Contractual Obligations........... -27-
6.2 Due Authorization; Non-Contravention........................................... -27-
6.3 Governmental Approval; Regulation.............................................. -27-
6.4 Validity....................................................................... -28-
6.5 Financial Information.......................................................... -28-
6.6 No Material Adverse Change..................................................... -28-
6.7 Litigation..................................................................... -28-
6.8 Ownership of Properties........................................................ -28-
6.9 Taxes.......................................................................... -28-
6.10 Pension and Welfare Plans..................................................... -28-
6.11 Environmental Warranties...................................................... -29-
6.12 Regulations T, U and X........................................................ -30-
6.13 Accuracy of Information....................................................... -30-
6.14 The Obligations............................................................... -30-
6.15 Year 2000 Matters............................................................. -30-
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ARTICLE VII
COVENANTS........................................................................................ -30-
7.1 Affirmative Covenants............................................................. -30-
7.1.1 Financial Information, Reports................................................ -30-
7.1.2 Compliance with Laws.......................................................... -32-
7.1.3 Maintenance of Properties..................................................... -32-
7.1.4 Insurance..................................................................... -32-
7.1.5 Books and Records............................................................. -32-
7.1.6 Environmental Covenant........................................................ -33-
7.1.7 Conduct of Business and Maintenance of Existence.............................. -33-
7.1.8 Year 2000 Matters............................................................. -33-
7.1.9 Use of Proceeds............................................................... -33-
7.2 Negative Covenants................................................................ -33-
7.2.1 Restrictions on Secured Indebtedness.......................................... -34-
7.2.2 [Reserved].................................................................... -34-
7.2.3 Liens......................................................................... -34-
7.2.4 Financial Condition........................................................... -35-
7.2.5 Investments................................................................... -35-
7.2.6 Consolidation, Merger......................................................... -36-
7.2.7 Asset Dispositions............................................................ -36-
7.2.8 Transactions with Affiliates.................................................. -37-
7.2.9 Restrictive Agreements........................................................ -37-
7.3 ERISA............................................................................. -37-
ARTICLE VIII
EVENTS OF DEFAULT................................................................................ -37-
8.1 Listing of Events of Default...................................................... -37-
8.1.1 Non-Payment of Obligations.................................................... -37-
8.1.2 Breach of Warranty............................................................ -37-
8.1.3 Non-Performance of Certain Covenants and Obligations.......................... -38-
8.1.4 Non-Performance of Other Covenants and Obligations............................. -38-
8.1.5 Default on Other Indebtedness................................................. -38-
8.1.6 Judgments..................................................................... -38-
8.1.7 Pension Plans................................................................. -38-
8.1.8 Control of the Borrower....................................................... -39-
8.1.9 Bankruptcy, Insolvency........................................................ -39-
8.2 Action if Bankruptcy.............................................................. -39-
8.3 Action if Other Event of Default.................................................. -39-
8.4 Rescission of Declaration......................................................... -40-
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ARTICLE IX
THE AGENT........................................................................................ -40-
9.1 Actions........................................................................... -40-
9.2 Funding Reliance.................................................................. -41-
9.3 Exculpation....................................................................... -41-
9.4 Successor......................................................................... -42-
9.5 Loans by CUSA..................................................................... -42-
9.6 Reliance by Administrative Agent.................................................. -42-
9.7 Notice of Default................................................................. -43-
9.8 Credit Decisions.................................................................. -43-
9.9 Copies............................................................................ -43-
ARTICLE X
MISCELLANEOUS PROVISIONS......................................................................... -44-
10.1 Waivers, Amendments.............................................................. -44-
10.2 Notices.......................................................................... -44-
10.3 Payment of Costs and Expenses.................................................... -45-
10.4 Indemnification.................................................................. -45-
10.5 Survival......................................................................... -46-
10.6 Severability..................................................................... -47-
10.7 Headings......................................................................... -47-
10.8 Execution in Counterparts........................................................ -47-
10.9 Governing Law; Entire Agreement.................................................. -47-
10.10 Successors and Assigns.......................................................... -47-
10.11 Sale and Transfer of Loans and Notes; Participations in Loans and Notes......... -47-
10.11.1 Assignments................................................................. -47-
10.11.2 Participations.............................................................. -49-
10.12 Other Transactions.............................................................. -50-
10.13 Submission To Jurisdiction; Waivers............................................. -50-
10.14 WAIVERS OF JURY TRIAL........................................................... -51-
10.15 Non-Recourse Persons............................................................ -51-
10.16 Acknowledgments................................................................. -51-
10.17 Confidentiality................................................................. -51-
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Annex I - Pricing Grid
SCHEDULES
1.1(a)- Commitments
1.1(b)- Addresses for Notices and Lending Offices
EXHIBITS
A - Form of Note
B - Form of Borrowing Request
C - Form of Continuation/Conversion Notice
D - Form of Lender Assignment Agreement
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CREDIT AGREEMENT, dated as of March 18, 1999, among EDISON MISSION
ENERGY, a California corporation (the "Borrower"), the various financial
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institutions as are or may become parties hereto (collectively, the "Lenders")
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and CITICORP USA, INC. ("CUSA"), as administrative agent for the Lenders (in
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such capacity, the "Administrative Agent").
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RECITALS
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A. The Borrower has requested that the Lenders establish a credit
facility to provide liquidity support for the Borrower's commercial paper
program and for general corporate purposes; and
B. The Lenders are willing to make such credit facility available
upon and subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 Defined Terms. The following terms (whether or not
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underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Administrative Agent" means CUSA in its capacity as administrative
--------------------
agent for the Lenders hereunder, and includes each other Person as may have
subsequently been appointed as the successor Administrative Agent pursuant to
Section 9.4.
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"Affiliate" of any Person means any other Person which, directly or
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indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Pension Plan or Welfare Plan). A Person shall be deemed to
be "controlled by" any other Person if such other Person possesses, directly or
indirectly, power to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agent-Related Persons" means CUSA and any successor agent arising
---------------------
under Section 9.4, together with their respective Affiliates, and the officers,
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directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Agreement" means, on any date, this Credit Agreement as originally in
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effect on the Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on such
date.
"Alternate Base Rate" means, on any date and with respect to all Base
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Rate Loans, a fluctuating rate of interest per annum equal to the higher of:
(a) the rate of interest in effect for such day as publicly announced
from time to time by the Administrative Agent at its principal office in New
York, New York, as its "base rate" (or such other term used by any successor
Administrative Agent). The "base rate" is a rate set by the Administrative
Agent based upon various factors including the Administrative Agent's cost and
desired return, general economic conditions and other factors, and is used as
a reference point for pricing some loans, which may be priced at, above, or
below such announced rate; or
(b) the Federal Funds Rate most recently determined by the
Administrative Agent plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Administrative Agent in connection with extensions of
credit. Changes in the rate of interest on that portion of any Loans maintained
as Base Rate Loans will take effect simultaneously with each change in the
Alternate Base Rate. The Administrative Agent will give notice promptly to the
Borrower and the Lenders of changes in the Alternate Base Rate.
"Applicable Margin" means, for any day with respect to any LIBO Rate
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Loans or Base Rate Loans, the rate per annum in effect for such day based on the
Borrower's Debt Rating for such day determined as provided in the Pricing Grid.
"Authorized Representative" means, relative to the Borrower, those of
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its officers and employees whose signatures and incumbency shall have been
certified to the Administrative Agent and the Lenders pursuant to Section 5.1.3.
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"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
--------------
determined by reference to the Alternate Base Rate plus the Applicable Margin
from time to time in effect.
"Borrower" has the meaning set forth in the preamble.
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"Borrowing" means Loans of the same type and, in the case of LIBO Rate
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Loans having the same Interest Period, made by all Lenders on the same Business
Day and pursuant to the same Borrowing Request in accordance with Section 2.l.
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"Borrowing Date" means any Business Day specified in a notice pursuant
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to Section 2.3 as a date which the Borrower requests the Lenders to make Loans.
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"Borrowing Request" means a loan request and certificate duly executed
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by an Authorized Representative of the Borrower, substantially in the form of
Exhibit B.
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"Business Day" means:
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(a) any day which is neither a Saturday or Sunday nor a legal holiday
on which banks are authorized or required to be closed in New York, New
York; and
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(b) relative to the making, continuing, prepaying or repaying of any
LIBO Rate Loans, any day on which dealings in Dollars are carried on in the
London interbank market.
"Capitalized Lease Liabilities" of any Person means all monetary
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obligations of such Person under any leasing or similar arrangement which, in
accordance with GAAP, would be classified as capitalized leases, and, for
purposes of each Loan Document, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP.
"Cash Equivalent Investment" means, at any time:
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(a) any evidence of Indebtedness, maturing not more than one year
after such time, issued or guaranteed by the United States Government or an
agency thereof; or
(b) other investments in securities or bank instruments rated at
least "A" by S&P and "A2" by Xxxxx'x or "A-1" by S&P and "P-1" by Xxxxx'x
and with maturities of less than 366 days; or
(c) other securities as to which the Borrower has demonstrated, to
the satisfaction of the Administrative Agent, adequate liquidity through
secondary markets or deposit agreements.
"CERCLIS" means the Comprehensive Environmental Response Compensation
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Liability Information System List.
"Change in Control" means the failure of Edison International to own,
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directly or indirectly, at least 50.l% of the outstanding shares of voting stock
of the Borrower (or any successor pursuant to Section 7.2.6(c)) on a fully
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diluted basis.
"Code" means the Internal Revenue Code of 1986, as amended.
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"Commitment" has the meaning set forth in Section 2.1.1.
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"Commitment Termination Date" means the earliest of:
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(a) the date which is 364 days after the Effective Date or, if such
date has been extended by any Lender pursuant to Section 2.7, then, with
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respect to the Commitment of such Lender, such date as determined pursuant
to Section 2.7;
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(b) the date on which the Total Commitment Amount is terminated in
full or reduced to zero pursuant to Section 2.2; or
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(c) the date on which any Commitment Termination Event occurs.
"Commitment Termination Event" means:
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(a) the occurrence of any Default described in clauses (a) through (e)
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of Section 8.1.9 with respect to the Borrower; or
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(b) the occurrence and continuance of any other Event of Default and
the declaration of the Loans to be due and payable pursuant to Section 8.3.
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"Committed Loan" means a Loan made pursuant to Section 2.1.
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"Contingent Liability" means any agreement, undertaking or arrangement
--------------------
by which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to be the outstanding
principal amount of the debt, obligation or other liability guaranteed thereby;
provided, however, that if the maximum amount of the debt, obligation or other
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liability guaranteed thereby has not been established, the amount of such
Contingent Liability shall be the maximum reasonably anticipated amount of the
debt, obligation or other liability; provided, further, however, that any
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agreement to limit the maximum amount of such Person's obligation under such
Contingent Liability shall not, of and by itself, be deemed to establish the
maximum reasonably anticipated amount of such debt, obligation or other
liability.
"Continuation/Conversion Notice" means a notice of continuation or
------------------------------
conversion and certificate duly executed by an Authorized Representative of the
Borrower, substantially in the form of Exhibit C.
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"Contractual Obligation" means, 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.
"Controlled Group" means all members of a controlled group of
----------------
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414(b) or 414(c) of the
Code or Section 4001 of ERISA.
"CUSA" has the meaning set forth in the preamble.
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"Debt Rating" means a rating of the Borrower's long-term debt which is
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not secured or supported by a guarantee, letter of credit or other form of
credit enhancement. If Xxxxx'x or S&P shall have changed its system of
classifications after the date hereof, the Borrower's Debt Rating shall be
considered to be at or above a specified level if it is at or above the new
rating which most closely corresponds to the specified level under the old
rating system.
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"Declining Lenders" has the meaning set forth in Section 2.6.
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"Default" means any Event of Default or any condition, occurrence or
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event which, after notice or lapse of time or both, would constitute an Event of
Default.
"Dollar" and the sign "$" mean lawful money of the United States.
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"Domestic Office" means, relative to any Lender, the office of such
---------------
Lender designated on Schedule 1.1(b) or designated in the Lender Assignment
---------------
Agreement or such other office of a Lender (or any successor or assign of such
Lender) within the United States as may be designated from time to time by
notice from such Lender, as the case may be, to each other Person party hereto.
A Lender may have separate Domestic Offices for purposes of making, maintaining
or continuing, as the case may be, Base Rate Loans.
"Edison International" means Edison International, a California
--------------------
corporation.
"Effective Date" means the date this Agreement becomes effective
--------------
pursuant to Section 5.1.
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"Eligible Assignee" means (a) a commercial bank organized or licensed
-----------------
under the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $250,000,000; and (b) a Person that is primarily
engaged in the business of commercial banking and that is (i) a Subsidiary of a
Lender, (ii) a Subsidiary of a Person of which a Lender is a Subsidiary or (iii)
a Person of which a Lender is a Subsidiary.
"Environmental Laws" means all applicable federal, state or local
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statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to Hazardous Materials
and/or to public health and protection of the environment, including the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, and the Resource Conservation and Recovery Act, as amended.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
"Event of Default" has the meaning set forth in Section 8.1.
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"Extending Lenders" has the meaning set forth in Section 2.6.
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"Facility Fee" has the meaning set forth in Section 3.3.1.
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"Federal Funds Rate" means, for any period, a fluctuating interest
------------------
rate per annum equal for each day during such period to:
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(a) 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 for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York; or
(b) if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from not less than three of the Lead
Arrangers (or if quotations are unavailable from any of them, up to three
federal funds brokers of recognized standing selected by the Administrative
Agent).
"Fiscal Quarter" means any quarter of a Fiscal Year.
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"Fiscal Year" means any period of twelve consecutive calendar months
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ending on December 31; references to a Fiscal Year with a number corresponding
to any calendar year (e.g., the "1999 Fiscal Year") referred to the Fiscal Year
----
ending on December 31 occurring during such calendar year.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
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System or any successor thereto.
"GAAP" has the meaning set forth in Section 1.4.
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"Governmental Approval" has the meaning set forth in Section 6.3.
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"Hazardous Material" means:
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(a) any "hazardous substance", as defined by any Environmental Law;
(b) any "hazardous waste", as defined by any Environmental Law;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any Environmental
Law.
"herein", "hereof", "hereto", "hereunder" and similar terms contained
------ ------ ------ ---------
in any Loan Document refer to such Loan Document as a whole and not to any
particular Section, paragraph or provision of such Loan Document.
"including" means including without limiting the generality of any
---------
description preceding such term, and, for purposes of each Loan Document, the
parties thereto agree that the rule of ejusdem generis shall not be applicable
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to limit a general statement, which is followed by or referable to an
enumeration of specific matters, to matters similar to the matters specifically
mentioned.
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"Indebtedness" of any Person means, without duplication:
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(a) all indebtedness for borrowed money;
(b) all obligations issued, undertaken or assumed as the deferred
purchase price of property or services which purchase price is due more
than six months from the date of incurrence of the obligation in respect
thereof or is evidenced by a note or other instrument, except trade
accounts arising in the ordinary course of business;
(c) all reimbursement obligations with respect to surety bonds,
letters of credit (to the extent not collateralized with cash or Cash
Equivalent Investments), bankers' acceptances and similar instruments (in
each case, whether or not matured);
(d) all obligations evidenced by notes, bonds, debentures or similar
instruments, including obligations so evidenced incurred in connection with
the acquisition of property, assets or businesses;
(e) all indebtedness created or arising under any conditional sale or
other title retention agreement, or incurred as financing, in either case
with respect to property acquired by the Person (even though the rights and
remedies of the seller or bank under such agreement in the event of default
are limited to repossession or sale of such property);
(f) all Capitalized Lease Liabilities;
(g) all net obligations with respect to sales of foreign exchange
options;
(h) all indebtedness referred to in clauses (a) through (g) above
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secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien upon or in
property (including accounts and contracts rights) owned by such Person,
even though such Person has not assumed or become liable for the payment of
such Indebtedness; and
(i) all Contingent Liabilities.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer.
"Initial Lenders" means CUSA, Credit Suisse First Boston, Xxxxxx
---------------
Commercial Paper Inc. and Societe Generale.
"Interest Period" means, relative to any LIBO Rate Loan, the period
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beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to Section 2.3 or
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2.4 and shall end on (but exclude) the day which numerically corresponds to
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such date one, two or three months thereafter (or, if such
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month has no numerically corresponding day, on the last Business Day of such
month), in either case as the Borrower may select in its relevant notice
pursuant to Section 2.3 or 2.4 ; provided, however, that:
----------- --- -------- -------
(a) the Borrower shall not be permitted to select Interest Periods to
be in effect at any one time which have expiration dates occurring on more
than ten different dates or such other larger number of dates and on such
terms as may be agreed to by the Borrower and the Administrative Agent;
(b) Interest Periods commencing on the same date for Loans comprising
part of the same Borrowing shall be of the same duration;
(c) if such Interest Period would otherwise end on a day which is not
a Business Day, such Interest Period shall end on the next following
Business Day (unless, if such Interest Period applies to LIBO Rate Loans,
such next following Business Day is the first Business Day of a calendar
month, in which case such Interest Period shall end on the Business Day
next preceding such numerically corresponding day); and
(d) no Interest Period may end later than the date set forth in
clause (a) of the definition of "Commitment Termination Date".
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"Investment" means, relative to any Person:
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(a) any loan or advance made by such Person to any other Person
(excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business);
(b) any Contingent Liability of such Person; and
(c) any ownership or similar interest held by such Person in any other
Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property.
"Lead Arrangers" means Credit Suisse First Boston, Xxxxxx Brothers
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Inc., Xxxxxxx Xxxxx Xxxxxx Inc. and Societe Generale.
"Lender Assignment Agreement" means a Lender Assignment Agreement,
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substantially in the form of Exhibit D.
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"Lenders" has the meaning set forth in the preamble.
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"LIBO Rate" has the meaning set forth in Section 3.2.1.
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"LIBO Rate Loan" means a Loan bearing interest, at all times during an
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Interest Period applicable to such Loan at a fixed rate of interest determined
by reference to the LIBO Rate.
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
----------------------------
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, a rate per annum (rounded upwards, if necessary, to the nearest whole
multiple of l/100 of 1%) determined pursuant to the following formula:
LIBO Rate (Reserve Adjusted) = LIBO Rate
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1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be determined by the Administrative Agent on the basis of the LIBOR
Reserve Percentage in effect on, and the applicable rates furnished to and
received by the Administrative Agent, two Business Days before the first day of
such Interest Period.
"LIBOR Office" means, relative to any Lender, the office of such
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Lender designated as such on Schedule 1.1(b) or designated in the Lender
---------------
Assignment Agreement or such other office of a Lender as designated from time to
time by notice from such Lender to the Borrower and the Administrative Agent
pursuant to Section 4.4, whether or not outside the United States, which shall
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be making or maintaining LIBO Rate Loans of such Lender hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for
------------------------
LIBO Rate Loans, the reserve percentage (expressed as a decimal) equal to the
aggregate reserve requirements (including all basic, emergency, supplemental,
marginal and other reserves and taking into account any transitional adjustments
or other scheduled changes in reserve requirements) specified under regulations
issued from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of and including "Eurocurrency Liabilities", as currently
defined in Regulation D of the F.R.S. Board, having a term approximately equal
or comparable to such Interest Period.
"Lien" means any security interest, mortgage, pledge, hypothecation,
----
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, in each case of any kind, to secure
payment of a debt or performance of an obligation.
"Loan" means Loans made by the Lenders to the Borrower pursuant to
----
Section 2.1 including Base Rate Loans and LIBO Rate Loans.
-----------
"Loan Documents" means this Agreement, the Notes and the other
--------------
agreements, documents and instruments delivered in connection with this
Agreement and the Notes, including the fee letter referred to in Section 3.3.3,
-------------
each Borrowing Request and each Continuation/ Conversion Notice.
-9-
"Material Adverse Effect" means any event, development or circumstance
-----------------------
that has had or could reasonably be expected to have a material adverse effect
on (i) the business, assets, property, condition (financial or otherwise) or
operations of the Borrower and its subsidiaries, taken as a whole since the
Effective Date, or (ii) the ability of the Borrower to perform its obligations
under any of the Loan Documents.
"Moody's" means Xxxxx'x Investors Service, a division of Dun &
-------
Bradstreet Corporation, and its successors and assigns.
"Net Tangible Assets" means, as of the date of any determination
-------------------
thereof, the total amount of all assets of the Borrower and its Subsidiaries
(determined on a consolidated basis in accordance with GAAP), less the sum of
(a) the consolidated current liabilities of the Borrower and its Subsidiaries
(determined on a consolidated basis in accordance with GAAP) and (b) assets
properly classified as "intangible assets" in accordance with GAAP.
"Non-Recourse Debt" means Indebtedness which the Borrower is not
-----------------
directly or indirectly obligated to repay.
"Non-Recourse Persons" means the Affiliates of the Borrower, including
--------------------
The Mission Group, Edison International and Southern California Edison Company,
and the officers, directors, employees, shareholders, agents, Authorized
Representatives and other controlling persons of the Borrower or any of its
Affiliates, provided that in no event shall the Borrower be deemed to be a Non-
--------
Recourse Person.
"Note" means a promissory note of the Borrower payable to any Lender,
----
in the form of Exhibit A hereto (as such promissory note may be amended,
---------
endorsed or otherwise modified from time to time), evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from outstanding Loans,
and also means all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"Obligations" means all obligations (monetary or otherwise) of the
-----------
Borrower arising under or in connection with the Loan Documents.
"Organic Document" means, relative to the Borrower, its certificate of
----------------
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements applicable to any of its authorized shares of capital
stock.
"Participant" has the meaning set forth in Section 10.11.2.
----------- ---------------
"Partnership" means a general partnership, limited partnership, joint
-----------
venture or similar entity in which the Borrower or a Subsidiary is a partner,
joint venturer or equity participant.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
----
succeeding to any or all of its functions under ERISA.
-10-
"Pension Plan" means a "pension plan", as such term is defined in
------------
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA), and to which the
Borrower or any corporation, trade or business that is, along with the Borrower,
a member of a Controlled Group, has any liability, including any liability by
reason of having been a substantial employer within the meaning of Section 4063
of ERISA at any time during the preceding five years, or by reason of being
deemed to be a contributing sponsor under Section 4069 of ERISA.
"Percentage" means, relative to any Lender, the percentage set forth
----------
on Schedule 1.1(a) opposite its name or set forth in the Lender Assignment
---------------
Agreement pursuant to which such Lender became a Lender hereunder, as such
percentage may be adjusted from time to time pursuant to any Lender Assignment
Agreement executed by such Lender and delivered pursuant to Section 10.11 or
-------------
adjusted from time to time pursuant to Section 2.6.
-----------
"Person" means any natural person, corporation, partnership, limited
------
liability company, firm, association, trust, government, governmental agency or
any other entity, whether acting in an individual, fiduciary or other capacity.
"Pricing Grid" means the pricing grid attached as Annex I.
------------ -------
"Quarterly Payment Date" means the last day of each March, June,
----------------------
September, and December or, if any such day is not a Business Day, the next
succeeding Business Day. "Register" has the meaning set forth in Section
-------
10.11.1.
-------
"Required Lenders" means, at any time, Lenders holding at least 66%
----------------
of the then aggregate outstanding principal amount of the Loans, or, if no such
principal amount is then outstanding, Lenders having at least 66% of the Total
Commitment Amount.
"S&P" means Standard & Poor's Ratings Services and its successors and
---
assigns.
"Same Day Funds" means immediately available funds.
--------------
"Subordinated Debt" means all unsecured Indebtedness of the Borrower
-----------------
for money borrowed which is subordinated, upon terms (including the terms
applicable to the payment, prepayment, redemption, purchase or defeasance
thereof) satisfactory to the Required Lenders, in right of payment to the
payment in full in cash of all Obligations.
"Subsidiary" means, with respect to any Person, any corporation of
----------
which more than 50% of the outstanding capital stock having ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person.
-11-
"Tangible Net Worth" means the net worth of the Borrower and its
------------------
Subsidiaries (determined on a consolidated basis in accordance with GAAP) after
subtracting therefrom the aggregate amount of any intangible assets of the
Borrower and its Subsidiaries (determined on a consolidated basis in accordance
with GAAP), including goodwill, franchises, licenses, patents, trademarks, trade
names, copyrights, service marks and brand names.
"Taxes" has the meaning set forth in Section 4.7.
----- -----------
"Total Commitment Amount" means, on any date, $700,000,000, as such
-----------------------
amount may be reduced from time to time pursuant to Section 2.2 or Section 2.6.
----------- -----------
"type" means, relative to any Loan, the portion thereof, if any, being
----
maintained as a Base Rate Loan or a LIBO Rate Loan.
"United States" or "U.S." means the United States of America, its
------------- ----
fifty States and the District of Columbia.
"Utilization Fee" has the meaning set forth in Section 3.3.2.
--------------- --------------
"Welfare Plan" means a "welfare plan", as such term is defined in
------------
Section 3(1) of ERISA.
"Year 2000 Problem" means any significant risk that computer hardware,
-----------------
software or equipment containing embedded microchips essential to the businesses
or operations of the Loan Parties will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as effectively as in the
case of dates or time periods occurring prior to January 1, 2000.
SECTION 1.2 Use of Defined Terms. Unless otherwise defined or the
--------------------
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in each Note, Borrowing Request,
Continuation/Conversion Notice, Loan Document, notice and other communication
delivered from time to time in connection with any Loan Document.
SECTION 1.3 Cross-References. Unless otherwise specified, references
----------------
in this Agreement to any Article, Section, Annex, Exhibit or Schedule are
references to such Article, Section, Annex, Exhibit or Schedule of or to this
Agreement, and, unless otherwise specified, references in any Article, Section
or definition to any clause are references to such clause of such Article,
Section or definition.
SECTION 1.4 Accounting and Financial Determinations. Unless
---------------------------------------
otherwise specified, all accounting terms used in any Loan Document shall be
interpreted, all accounting determinations and computations hereunder or
thereunder shall be made, and all financial statements required to be delivered
hereunder or thereunder shall be prepared in accordance with, those generally
accepted accounting principles in effect in the United States ("GAAP") applied
----
in
-12-
the preparation of the financial statements referred to in Section 6.5, except
that quarterly financial statements are not required to contain footnotes.
ARTICLE II
COMMITMENTS AND BORROWING PROCEDURES
SECTION 2.1 Commitments. On the terms and subject to the conditions
-----------
of this Agreement, each Lender severally agrees to make Loans pursuant to such
Lender's Commitment as provided in this Section 2.1.
-----------
SECTION 2.1.1 Commitments. From time to time on any Business Day
-----------
occurring prior to the related Commitment Termination Date, each Lender
severally agrees to make Loans (each, a "Loan") to the Borrower equal to such
----
Lender's Percentage of the Borrowing of Loans requested or deemed to be
requested by the Borrower to be made on such day. The commitment of each Lender
described in this Section 2.1.1 is herein referred to as its "Commitment". The
------------- ----------
Borrower may from time to time borrow, prepay, in whole or in part, and reborrow
Loans. Commitments shall terminate automatically on the related Commitment
Termination Date.
SECTION 2.1.2 Lenders Not Required To Make Loans. No Lender shall be
----------------------------------
required to make any Loan if, after giving effect thereto:
(a) the aggregate outstanding principal amount of all Loans of all
Lenders would exceed the Total Commitment Amount; or
(b) the aggregate outstanding principal amount of all Loans of such
Lender would exceed such Lender's Percentage of the Total Commitment
Amount.
SECTION 2.2 Reduction of the Total Commitment Amount. The Borrower
----------------------------------------
may, from time to time on any Business Day occurring after the Effective Date,
voluntarily reduce the Total Commitment Amount without premium or penalty
(subject, however, to Section 4.5); provided, however, that all such reductions
----------- -------- -------
shall require at least one Business Days' prior notice to the Administrative
Agent and be permanent, and any partial reduction of the Total Commitment Amount
shall be in a minimum amount of $10,000,000 and in an integral multiple of
$1,000,000 in excess thereof; and, provided, further, that the Total Commitment
-------- -------
Amount may not be reduced to an amount less than the aggregate amount of
outstanding Loans.
SECTION 2.3 Borrowing Procedure. By delivering a Borrowing Request
-------------------
to the Administrative Agent on or before 12:00 Noon, New York City time, on a
Business Day, the Borrower may from time to time irrevocably request, (i) on not
less than three Business Days' notice, in the case of LIBO Rate Loans, and (ii)
on the same Business Day, in the case of Base Rate Loans, that a Borrowing of
Loans be made in minimum amounts of $10,000,000, or in the unused amount of the
Total Commitment Amount. On the terms and subject to the conditions of this
Agreement, each Borrowing shall be comprised of the same type of Loans, and
shall be made on the Business Day specified in such Borrowing Request. On or
before 2:00 P.M., New York
-13-
City time, on the Business Day such Loans are to be made, each Lender shall
deposit with the Administrative Agent Same Day Funds in an amount equal to such
Lender's Percentage of the requested Borrowing. Such deposit will be made to an
account which the Administrative Agent shall specify from time to time by notice
to the Lenders. To the extent funds are received from the Lenders, the
Administrative Agent shall make such funds available to the Borrower by wire
transfer to the accounts the Borrower shall have specified in its Borrowing
Request. No Lender's obligation to make any Loan shall be affected by any other
Lender's failure to make any Loan.
SECTION 2.4 Continuation and Conversion Elections. By delivering a
-------------------------------------
Continuation/Conversion Notice to the Administrative Agent on or before 12:00
Noon, New York City time on a Business Day, the Borrower may from time to time
irrevocably elect that all, or any portion in an aggregate minimum amount of
$10,000,000 and an integral multiple of $1,000,000 in excess thereof, of any
Loans be (i) on not less than three Business Days' notice, converted into, or
continued as, LIBO Rate Loans, or (ii) on the same Business Day, be converted
into, or continued as a Base Rate Loan. In the absence of delivery of a
Continuation/Conversion Notice with respect to any LIBO Rate Loan, such LIBO
Rate Loan shall automatically be continued as a LIBO Rate Loan with an Interest
Period of the same duration as the then expiring Interest Period; provided,
--------
however, that (x) each such conversion or continuation shall be pro rated among
-------
the applicable outstanding Loans of all Lenders, (y) a LIBO Rate Loan may not be
converted at any time other than the last day of the Interest Period applicable
thereto and (z) no portion of the outstanding principal amount of any Loans may
be continued as, or be converted into, LIBO Rate Loans when any Default or Event
of Default under Section 8.1.1 has occurred and is continuing. Each delivery of
-------------
a Continuation/Conversion Notice shall constitute a certification and warranty
by the Borrower that on the date of delivery of such notice no Default has
occurred and is continuing. If prior to the time of such continuation or
conversion any matter certified to by the Borrower by reason of the immediately
preceding sentence will not be true and correct at such time if then made, the
Borrower will immediately so notify the Administrative Agent. Except to the
extent, if any, that prior to the time of such continuation or conversion the
Administrative Agent shall have received written notice to the contrary from the
Borrower, such certification and warranty shall be deemed to be made at the date
of such continuation or conversion as if then made. Upon the occurrence and
during the continuance of any Event of Default under Section 8.1.1, each LIBO
-------------
Rate Loan shall convert automatically to a Base Rate Loan at the end of the
Interest Period then in effect for such LIBO Rate Loan.
SECTION 2.5 Funding. Each Lender may, if it so elects, fulfill its
-------
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan; provided,
--------
however, that such LIBO Rate Loan shall nonetheless be deemed to have been made
-------
and to be held by such Lender, and the obligation of the Borrower to repay such
LIBO Rate Loan shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility. In addition, the
Borrower hereby consents and agrees that, for purposes of any determination to
be made for purposes of Sections 4.1, 4.2, 4.3, 4.4, or 4.5, it shall be
------------ --- --- --- ---
conclusively assumed that each Lender elected to fund all LIBO Rate Loans by
purchasing deposits in its LIBOR Office's interbank eurodollar markets.
-14-
SECTION 2.6 Renewal of Commitments. The Borrower may request that
----------------------
each Lender's Commitments be renewed by providing notice of such requests to the
Administrative Agent no earlier than 45 days but no later than 30 days prior to
the then existing Commitment Termination Date applicable to such Lenders. If a
Lender agrees, in its individual and sole discretion, to renew its Commitment,
such Lender (an "Extending Lender") will notify the Administrative Agent, in
----------------
writing, of its decision to do so no earlier than 30 days prior to the then
existing Commitment Termination Date applicable to such Lender (but in any event
no later than 20 days prior to the then existing Commitment Termination Date).
Notwithstanding any provision of this Agreement to the contrary, any notice by
any Lender of its willingness to renew its Commitment shall be revocable by such
Lender in its sole and absolute discretion at any time prior to the date which
is 20 days prior to the related Commitment Termination Date then in effect. The
Administrative Agent will notify the Borrower, in writing, of each Lender's
decisions no later than 15 days prior to the then existing Commitment
Termination Date applicable to such Lender. The Extending Lenders' Commitments
will be renewed for an additional 364 days from the then existing Commitment
Termination Date applicable to such Lenders, provided that (i) each extension
--------
of the Commitment Termination Date pursuant to this Section 2.6 shall be for a
-----------
maximum of 364 days and (ii) more than 50% of the Total Commitment Amount as of
the Commitment Termination Date then in effect is extended or otherwise
committed to by Extending Lenders and any new Lenders. Any Lender that declines
the Borrower's request for a Commitment renewal (a "Declining Lender") will have
----------------
its Commitment terminated on the then existing Commitment Termination Date
applicable to such Lender (without regard to any renewals by other Lenders),
unless terminated earlier in accordance with this Agreement. The Borrower will
have the right to accept Commitments from third party financial institutions
acceptable to the Administrative Agent in an amount up to the amount of the pre-
termination Commitments of any Declining Lenders, provided that the Extending
--------
Lenders will have the right to increase their Commitments up to the amount of
the Declining Lenders' Commitments before the Borrower will be permitted to
substitute other financial institutions for the Declining Lenders.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1 Repayments and Prepayments. The Loans of each Lender
--------------------------
shall mature, and the Borrower unconditionally promises to pay in full the
unpaid principal amount of such Loan to the Administrative Agent, for the
account of such Lender, on the Commitment Termination Date for such Lender.
SECTION 3.1.1 Optional Prepayments. (a) At any time, and from
--------------------
time to time, the Borrower may, on any Business Day, make a voluntary
prepayment, in whole or in part, of the outstanding principal amount of the
Loans; provided, however, that:
-------- -------
(i) any such prepayment made shall be applied pro rata among Loans of
--- ----
the same type and, if applicable, having the same Interest Period;
-15-
(ii) any such prepayment of any LIBO Rate Loan made on any day other
than the last day of the Interest Period for such Loan shall be subject to
the provisions of Section 4.5;
-----------
(iii) any such prepayment of LIBO Rate Loans shall require at least
two Business Days' prior written notice to the Administrative Agent and any
such prepayment of Base Rate Loans may be made on same day's written notice
to the Administrative Agent; and
(iv) any such partial prepayment of Loans shall be in an aggregate
minimum amount of $10,000,000 and an integral multiple of $1,000,000 in
excess thereof.
(b) The Borrower shall, immediately upon any acceleration of any
Loans pursuant to Section 8.2 or Section 8.3, repay all Loans, unless,
----------- -----------
pursuant to Section 8.3, only a portion of all Loans is so accelerated.
-----------
(c) Each prepayment of Loans made pursuant to this Section 3.1.1 shall
-------------
be accompanied by accrued interest to the date of such prepayment on the amount
prepaid, but shall be without premium or penalty, except as may be required by
Section 4.5. No prepayment of principal of any Loan pursuant to Section
----------- -------
3.1.1(a) shall cause a reduction in the Total Commitment Amount.
--------
SECTION 3.2 Interest Provisions. Interest on the outstanding
-------------------
principal amount of Loans shall accrue and be payable in accordance with this
Section 3.2.
-----------
SECTION 3.2.1 Rates. (a) Pursuant to an appropriately delivered
-----
Borrowing Request or Continuation/Conversion Notice, the Borrower may elect that
Loans comprising a Borrowing accrue interest at a rate per annum:
(i) on that portion maintained from time to time as a Base Rate Loan,
equal to the sum of the Alternate Base Rate from time to time in effect
plus the Applicable Margin from time to time in effect; and
(ii) on that portion maintained as a LIBO Rate Loan, during each
Interest Period applicable thereto, equal to the sum of the LIBO Rate for
such InterestPeriod plus the Applicable Margin from time to time in effect.
"LIBO Rate" means, for each day during each Interest Period for each
---------
LIBO Rate 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 Telerate Service Page 3750 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 Telerate
Service Page 3750, the "LIBO 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
-16-
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. Notwithstanding
any other provision hereof, at such time as there shall exist for any Lender a
LIBOR Reserve Percentage which is greater than zero, the LIBO Rate used in the
determination of LIBO Rate Loans made by such Lender shall be the LIBO Rate
(Reserve Adjusted).
(b) All LIBO Rate Loans shall bear interest from and including the
first day of the applicable Interest Period to (but not including) the last day
of such Interest Period at the interest rate determined as applicable to such
LIBO Rate Loan.
SECTION 3.2.2 Post-Maturity Rates; Default Rates. (a) After the date
----------------------------------
any principal amount of any Loan is due and payable (whether on the related
Commitment Termination Date, upon acceleration or otherwise), or after any
monetary Obligation of the Borrower shall become due and payable, the Borrower
shall pay, but only to the extent permitted by law, interest (after as well as
before judgment) on such overdue amount at a rate per annum equal to the
Alternate Base Rate plus the Applicable Margin plus 2% until such amount is paid
in full.
(b) Upon the occurrence and during the continuance of any Event of
Default (other than an Event of Default under Section 8.1.1, for which provision
-------------
is made in Section 3.2.2(a) above), the Borrower shall pay, but only to the
----------------
extent permitted by law, in addition to the interest then payable on the Loans,
interest (after as well as before judgment) on the Loans at 2% per annum until
such Event of Default is cured.
SECTION 3.2.3 Payment Dates. Interest accrued on each Loan shall be
-------------
payable, without duplication:
(a) on the related Commitment Termination Date;
(b) on the date of any payment or prepayment, in whole or in part, of
principal outstanding on such Loan;
(c) with respect to Base Rate Loans, on each Quarterly Payment Date
occurring after the date of the initial Borrowing hereunder;
(d) with respect to LIBO Rate Loans, the last day of each applicable
Interest Period; and
(e) on that portion of any Loans which is accelerated pursuant to
Section 8.2 or Section 8.3, immediately upon such acceleration.
----------- -----------
-17-
Interest accrued on Loans or other monetary Obligations arising under or any
Loan Document after the date such amount is due and payable (whether on the
related Commitment Termination Date, upon acceleration or otherwise) shall be
payable upon demand.
SECTION 3.2.4 Interest Rate Determination. The Administrative Agent
---------------------------
shall determine the interest rate applicable to Loans and shall give prompt
notice to the Borrower and the Lenders of such determination, and its
determination thereof shall be conclusive in the absence of manifest
error.
SECTION 3.3 Fees. The Borrower agrees to pay the fees set forth in
----
this Section 3.3.
SECTION 3.3.1 Facility Fee. The Borrower agrees to pay to the
------------
Administrative Agent, for the ratable account of each Lender, a facility fee
(the "Facility Fee") in respect of the Total Commitment Amount (irrespective of
------------
usage) for each day from and after the Effective Date at the rate per annum in
effect for such day based on the Borrower's Debt Rating for such day determined
as provided in the Pricing Grid. Such fee shall be payable in arrears on each
Quarterly Payment Date, commencing with the first such date following the
Effective Date, and on the related Commitment Termination Date.
SECTION 3.3.2 Utilization Fee. The Borrower agrees to pay to the
---------------
Administrative Agent, for the ratable account of each Lender, a utilization fee
(the "Utilization Fee") in respect of the percentage of the Total Commitment
---------------
Amount outstanding on any date of determination at the rate per annum in effect
for such day based on the Borrower's Debt Rating for such day determined as
provided in the Pricing Grid. Such fee shall be payable in arrears on each
Quarterly Payment Date, commencing with the first such date following the
Effective Date, or at the end of each Interest Period, in each case, in
accordance with Section 3.2.3, and on the related Commitment Termination Date.
-------------
SECTION 3.3.3 Administrative Agent's Fee and Miscellaneous Fees. The
-------------------------------------------------
Borrower agrees to pay to the Administrative Agent, for (i) its own account,
(ii) the account of the Lenders and (iii) the account of the Lead Arrangers, the
respective fees as agreed to in the letter dated February 19, 1999, between the
Administrative Agent, the Lead Arrangers, the Initial Lenders and the Borrower.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1 LIBO Rate Lending Unlawful. If any Lender shall
--------------------------
reasonably determine (which determination shall, upon notice thereof to the
Borrower and the Administrative Agent, be conclusive and binding on the Borrower
absent manifest error) that the introduction of or any change in or in the
interpretation of any law, rule or regulation makes it unlawful, or any central
bank or other governmental authority or comparable agency asserts that it is
unlawful, for such Lender to make, continue or maintain any Loan as, or to
convert any Loan into, a LIBO
-18-
Rate Loan, the obligations of such Lender to make, continue, maintain or convert
any such Loans shall, upon such determination, forthwith be suspended until such
Lender shall notify the Administrative Agent that the circumstances causing such
suspension no longer exist, and all LIBO Rate Loans of such Lender shall
automatically convert into Base Rate Loans at the end of the then current
Interest Periods with respect thereto or sooner, if required by such law or
assertion.
SECTION 4.2 Inability to Determine Rates. If the Administrative
----------------------------
Agent shall have determined that by reason of circumstances affecting the
Administrative Agent's relevant market, adequate means do not exist for
ascertaining the interest rate applicable hereunder to LIBO Rate Loans, then,
upon notice from the Administrative Agent to the Borrower and the Lenders, the
obligations of all Lenders under Section 2.3 and Section 2.4 to make or continue
----------- -----------
any Loans as, or to convert any Loans into, LIBO Rate Loans shall forthwith be
suspended until the Administrative Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist.
SECTION 4.3 Increased LIBO Rate Loan Costs. If after the date
------------------------------
hereof, the adoption of any applicable law, rule or regulation, or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or its
LIBOR Office) with any request or directive (whether or not having the force of
law) of any such authority, central bank or comparable agency shall increase the
cost to such Lender of, or result in any reduction in the amount of any sum
receivable by such Lender in respect of, making, continuing or maintaining (or
of its obligation to make, continue or maintain) any Loans as, or of converting
(or of its obligation to convert) any Loans into, LIBO Rate Loans, then the
Borrower agrees to pay to the Administrative Agent for the account of each
Lender the amount of any such increase or reduction. Such Lender shall promptly
notify the Administrative Agent and the Borrower in writing of the occurrence of
any such event, such notice to state, in reasonable detail, the reasons therefor
and the additional amount required fully to compensate such Lender for such
increased cost or reduced amount. Such additional amounts shall be payable by
the Borrower directly to such Lender within ten Business Days of its receipt of
such notice, and such notice shall be binding on the Borrower absent clear and
convincing evidence to the contrary.
SECTION 4.4 Obligation to Mitigate. Each Lender agrees that as
----------------------
promptly as practicable after it becomes aware of the occurrence of an event
that would entitle it to give notice pursuant to Section 4.l, 4.3 or 4.6, and
----------- --- ---
in any event if so requested by the Borrower, each Lender shall use reasonable
efforts to make, fund or maintain its affected Loans through another lending
office if as a result thereof the increased costs would be avoided or materially
reduced or the illegality would thereby cease to exist and if, in the reasonable
opinion of such Lender, the making, funding or maintaining of such Loans through
such other lending office would not in any material respect be disadvantageous
to such Lender, contrary to such Lender's normal banking practices or violate
any applicable law or regulation. No change by a Lender in its Domestic Office
or LIBOR Office made for such Lender's convenience shall result in any increased
cost to
-19-
the Borrower. The Borrower shall not be obligated to compensate any Lender for
the amount of any additional amount pursuant to Section 4.1, 4.3 or 4.6
----------- --- ---
accruing prior to the date which is 90 days before the date on which such Lender
first notifies the Borrower that it intends to claim such compensation; it being
understood that the calculation of the actual amounts may not be possible within
such period and that such Lender may provide such calculation as soon as
reasonably practicable thereafter without affecting or limiting the Borrower's
payment obligation thereunder. If any Lender demands compensation pursuant to
Section 4.1, 4.3 or 4.6 with respect to any LIBO Rate Loan, the Borrower may,
----------- --- ---
at any time upon at least one Business Days prior notice to such Lender through
the Administrative Agent, elect to convert such Loan into a Base Rate Loan.
Thereafter, unless and until such Lender notifies the Borrower that the
circumstances giving rise to such notice no longer apply, all such LIBO Rate
Loans by such Lender shall bear interest as Base Rate Loans, notwithstanding any
prior election by the Borrower to the contrary. If such Lender notifies the
Borrower that the circumstances giving rise to such notice no longer apply, the
Borrower may elect that the principal amount of each such Loan again bear
interest as LIBO Rate Loans in accordance with this Agreement, on the first day
of the next succeeding Interest Period applicable to the related LIBO Rate Loans
of other Lenders. Additionally, the Borrower may, at its option, upon at least
five Business Days' prior notice to such Lender, elect to prepay in full,
without premium or penalty, such Lender's affected LIBO Rate Loans. If the
Borrower elects to prepay any Loans pursuant to this Section 4.4, the Borrower
-----------
shall pay within ten Business Days after written demand any additional increased
costs of such Lender accruing for the period prior to such date of prepayment.
If such conversion or prepayment is made on a day other than the last day of the
current Interest Period for such affected LIBO Rate Loans, such Lender shall be
entitled to make a request for, and the Borrower shall pay, compensation under
Section 4.5.
-----------
SECTION 4.5 Funding Losses. In the event any Lender shall incur any
--------------
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a LIBO
Rate Loan) as a result of:
(a) any conversion or repayment or prepayment of the principal amount
of any LIBO Rate Loans on a date other than the scheduled last day of the
Interest Period applicable thereto, whether pursuant to Section 3.1 or
-----------
otherwise;
(b) Borrower's failure to borrow any LIBO Rate Loans in accordance
with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO Rate
Loans in accordance with the Continuation/Conversion Notice therefor;
then, upon the written notice of such Lender to the Borrower (with a copy to the
Administrative Agent), the Borrower shall, within ten Business Days of its
receipt thereof, pay directly to such Lender such amount as will (in the
reasonable determination of such Lender) reimburse such
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Lender for such loss or expense. Such written notice (which shall include
calculations in reasonable detail) shall be binding on the Borrower absent
manifest error.
SECTION 4.6 Increased Capital Costs. If after the date hereof any
-----------------------
change in, or the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any applicable law or regulation, directive,
guideline, decision or request (whether or not having the force of law) of any
court, central bank, regulator or other governmental authority affects the
amount of capital required to be maintained by any Lender, and such Lender
reasonably determines that the rate of return on its capital as a consequence of
its Commitment or the Loans made by such Lender is reduced in a material amount
to a level below that which such Lender could have achieved but for the
occurrence of any such circumstance, then, in any such case upon notice from
time to time by such Lender to the Borrower, the Borrower shall pay within ten
Business Days after such demand directly to such Lender additional amounts
sufficient to compensate such Lender for such reduction in rate of return. A
statement of such Lender as to any such additional amount or amounts (including
calculations thereof in reasonable detail) shall be binding on the Borrower
absent manifest error.
SECTION 4.7 Taxes. (a) All payments by the Borrower of principal
-----
of, and interest on, the Loans and all other amounts payable hereunder shall be
made free and clear of and without deduction for any present or future income,
excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority, but
excluding franchise taxes or taxes imposed on or measured by any Lender's net
income, in each case, imposed as a result of a connection between the Lender and
the jurisdiction imposing the tax (other than a connection arising solely from
the Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement), and the Lenders will use reasonable
efforts to minimize, to the extent possible, any such applicable taxes;
provided, however, that such taxes does not include franchise taxes receipts,
--------
net worth or shareholders' capital (such non-excluded items being called
"Taxes"). In the event that any withholding or deduction from any payment to be
-----
made by the Borrower hereunder is required in respect of any Taxes pursuant to
any applicable law, rule or regulation, then the Borrower will:
(i) pay directly to the relevant authority the full amount required to
be so withheld or deducted;
(ii) within 30 days after such payment forward to the Administrative
Agent an official receipt or other documentation satisfactory to the
Administrative Agent evidencing such payment to such authority; and
(iii) pay to the Administrative Agent for the account of the Lenders
such additional amount or amounts as is necessary to ensure that the net
amount actually received by each Lender will equal the full amount such
Lender would have received had no such withholding or deduction been
required.
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Moreover, if any Taxes are directly asserted against the Administrative Agent or
any Lender with respect to any payment received by the Administrative Agent or
such Lender hereunder, the Administrative Agent or such Lender may pay such
Taxes and, upon receipt of notice from the Administrative Agent or such Lender
within 30 days after such payment, the Borrower will promptly pay such
additional amounts (including any penalties, interest or expenses ) as is
necessary in order that the net amount received by such person after the payment
of such Taxes (including any Taxes on such additional amount) shall equal the
amount such person would have received had no such Taxes been asserted.
(b) If the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent, for
the account of the respective Lenders, the required receipts or other required
documentary evidence, the Borrower shall indemnify the Lenders for any
incremental Taxes, interest or penalties that may become payable by any Lender
as a result of any such failure. For purposes of this Section 4.7, a
-----------
distribution hereunder by the Administrative Agent or any Lender to or for the
account of any Lender shall be deemed a payment by the Borrower.
(c) Each Lender that is not a United States person as defined in
Section 7701(a)(3) of the Code (a "Non-U.S. Lender") shall deliver to the
---------------
Borrower and the Administrative Agent two copies of either U.S. Internal Revenue
Service Form 1001 or Form 4224, 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 the 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. 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). The
Borrower shall not be required to increase any such amounts payable to any Non-
U.S. Lender with respect to any Non-Excluded Taxes (i) that are attributable to
such Non-U.S. Lender's failure to comply with the requirements of this Section
-------
4.7(C) 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 Section 4.7(a). Notwithstanding any other
--------------
provision of this Section 4.7(c), a Non-U.S. Lender shall not be required to
--------------
deliver any form pursuant to this Section 4.7(C) that such Non-U.S. Lender is
--------------
not legally able to deliver.
SECTION 4.8 Payments, Computations. Unless otherwise expressly
----------------------
provided, all payments by the Borrower pursuant to any Loan Document shall be
made by the Borrower to the Administrative Agent for the pro rata account of the
--------
Lenders entitled to receive such payment. All such payments required to be made
to the Administrative Agent shall be made, without setoff, deduction or
counterclaim, not later than 12:00 Noon, New York City time, on the date due, in
-22-
Same Day Funds, to such account as the Administrative Agent shall specify from
time to time by notice to the Borrower; provided that such payment shall be
--------
deemed made timely if made by wire transfer and by such time as an Authorized
Representative has advised the Administrative Agent of the applicable Federal
Reserve System wire transfer confirmation number. Funds received after that
time shall be deemed to have been received by the Administrative Agent on the
next succeeding Business Day. The Administrative Agent shall promptly remit in
Same Day Funds to each Lender its share, if any, of such payments received by
the Administrative Agent for the account of such Lender. All interest and fees
shall be computed on the basis of the actual number of days (including the first
day but excluding the last day) occurring during the period for which such
interest or fee is payable over a year comprised of 360 days (or, in the case of
interest on a Base Rate Loan, 365 days or, if appropriate, 366 days). Whenever
any payment to be made shall otherwise be due on a day which is not a Business
Day, such payment shall (except as otherwise required by clause (c) of the
----------
definition of the term "Interest Period" with respect to LIBO Rate Loans) be
---------------
made on the next succeeding Business Day and such extension of time shall be
included in computing interest and fees, if any, in connection with such
payment.
SECTION 4.9 Sharing of Payments. If any Lender shall obtain any
-------------------
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Committed Loan (other than pursuant to
the terms of Sections 4.3, 4.4, 4.5, 4.6, and 4.7) in excess of its pro rata
--------------------------- --- --- ----
share of payments then or therewith obtained by all Lenders holding Loans of
such type, such Lender shall purchase from the other Lenders such participations
in Committed Loans made by them as shall be necessary to cause such purchasing
Lender to share the excess payment or other recovery ratably with each of them;
provided, however, that if all or any portion of the excess payment or other
-------- -------
recovery is thereafter recovered from such purchasing Lender, the purchase shall
be rescinded and each Lender which has sold a participation to the purchasing
Lender shall repay to the purchasing Lender the purchase price to the ratable
extent of such recovery together with an amount equal to such selling Lender's
ratable share (according to the proportion of (a) the amount of such selling
Lender's required repayment to the purchasing Lender to (b) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 4.9 may, to the fullest extent permitted by law,
-----------
exercise all its rights of payment (including pursuant to Section 4.10) with
------------
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
If under any applicable bankruptcy, insolvency or other similar law,
any Lender receives a secured claim in lieu of a setoff to which this Section
-------
4.9 applies, such Lender shall, to the extent practicable, exercise its rights
---
in respect of such secured claim in a manner consistent with the rights of the
Lenders entitled under this Section 4.9 to share in the benefits of any recovery
-----------
on such secured claim.
SECTION 4.10 Setoff. Each Lender shall, upon the occurrence of any
------
Event of Default described in clauses (a) or (b) of Section 8.1.9. and, upon the
----------- --- -------------
occurrence of any Default described in clauses (c) through (d) of Section 8.1.9
----------- --- -------------
with respect to the Borrower or, with the
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consent of the Required Lenders, upon the occurrence and continuance beyond the
expiration of the applicable grace period, if any, of any other Event of
Default, have the right to appropriate and apply to the payment of the
Obligations owing to it (whether or not then due), and (as security for such
Obligations) the Borrower hereby grants to each Lender a continuing security
interest in, any and all balances, credits, deposits, accounts or moneys of the
Borrower then or thereafter maintained with such Lender or any bank controlling
such Lender; provided, however, that any such appropriation and application
-------- -------
shall be subject to the provisions of Section 4.9.
-----------
Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such setoff and application made by such Lender;
provided, however, that the failure to give such notice shall not affect the
-------- -------
validity of such setoff and application.
The rights of each Lender under this Section 4.10 are in addition to
------------
other rights and remedies (including other rights of setoff under applicable law
or otherwise) which such Lender may have.
SECTION 4.11 Replacement of Lender. The Borrower shall be permitted
---------------------
to replace (with one or more replacement Lenders) any Lender which requests
reimbursement for amounts owing pursuant to Section 4.1, 4.3, 4.6 or 4.7;
--------------------- ---
provided that (i) such replacement does not conflict with any law, treaty, rule
--------
or regulation or determination of an arbitrator or a court or other governmental
authority, in each case applicable to the Borrower or such Lender or to which
the Borrower or such Lender or any of their respective property is subject, (ii)
no Default or Event of Default shall have occurred and be continuing at the time
of such replacement, (iii) the Borrower shall repay (or the replacement bank or
institution shall purchase, at par) all Loans and other amounts owing to such
replaced Lender prior to the date of replacement, (iv) the Borrower shall be
liable to such replaced Lender under Section 4.5 if any LIBO Rate Loan owing to
-----------
such replaced Lender shall be prepaid (or purchased) other than on the last day
of the Interest Period relating thereto, (v) the replacement bank or
institution, if not already a Lender, shall be reasonably satisfactory to the
Administrative Agent, (vi) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of Section 10.11.1 (provided that
---------------
the Borrower or replacement Lender shall be obligated to pay the registration
and processing fee), (vii) until such time as such replacement shall be
consummated, the Borrower shall pay all additional amounts (if any) required
pursuant to Section 4.1, 4.3, 4.6 or 4.7, as the case may be, (viii) any such
--------------------- ---
replacement shall not be deemed to be a waiver of any rights which the Borrower,
the Administrative Agent or any other Lender shall have against the replaced
Lender, and (ix) if such replacement bank or institution is not already a
Lender, the Borrower shall pay to the Administrative Agent an administrative fee
of $3,500.
ARTICLE V
CONDITIONS TO LOANS
SECTION 5.1 Conditions to Effectiveness. This Agreement shall become
effective upon the satisfaction of each of the conditions precedent set forth in
this Section 5.1.
-----------
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SECTION 5.1.1 Delivery of Loan Documents. The Administrative Agent
--------------------------
shall have received from the Borrower this Agreement, executed and delivered by
an Authorized Representative of the Borrower, with a counterpart for each Lender
and, for the account of each Lender who so requests, its Note duly executed and
delivered by the Borrower.
SECTION 5.1.2 Officer's Certificate. The Administrative Agent shall
---------------------
have received, with a copy for each Lender, a certificate of an Authorized
Representative of the Borrower, substantially in the form of Exhibit E.
---------
SECTION 5.1.3 Resolutions. The Administrative Agent shall have
received from the Borrower a certificate, substantially in the form of Exhibit F
---------
hereto, dated the Effective Date, of its Secretary or Assistant Secretary as to:
(a) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance of each Loan
Document to be executed by it;
(b) the incumbency and signatures of those of its officers and
representatives authorized to act with respect to each Loan Document
executed by it; and
(c) the Borrower's Organic Documents.
The Administrative Agent and each Lender may conclusively rely upon
such certificate until it shall have received a further certificate of the
Secretary, Assistant Secretary or other Authorized Representative of the
Borrower canceling or amending such prior certificate.
SECTION 5.1.4 Opinions of Counsel. The Administrative Agent shall
-------------------
have received opinions, dated the Effective Date and addressed to the
Administrative Agent and the Lenders, from the Assistant General Counsel of the
Borrower, substantially in the form of Exhibit G hereto and given upon the
---------
express instruction of the Borrower.
SECTION 5.1.5 Closing Fees, Expenses. The Administrative Agent shall
----------------------
have received for its own account, or for the account of each Lender or Lead
Arranger, as the case may be, all fees due and payable pursuant to Section 3.3
-----------
and 10.3 , and all costs and expenses for which invoices have been presented.
----
SECTION 5.1.6 Financial Statements. The Administrative Agent shall
--------------------
have received, with a copy for each Lender, the audited consolidated financial
statements of the Borrower for the 1997 Fiscal Year and the audited consolidated
financial statements of the Borrower for the 1998 Fiscal Year.
SECTION 5.1.7 Debt Ratings. The Borrower shall have received short
------------
term debt ratings of A-2 and P-2 or better and maintain long term debt ratings
of at least BBB and Baa2 from S&P and Xxxxx'x, respectively.
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SECTION 5.2 All Loans. The obligation of each Lender to make any
---------
Loan (including the initial Loan) shall be subject to the satisfaction of each
of the conditions precedent set forth in this Section 5.2.
-----------
SECTION 5.2.1 Representations and Warranties; No Default. Both
------------------------------------------
before and after giving effect to any Borrowing (but, if any Default of the
nature referred to in Section 8.1.5 shall have occurred with respect to any
-------------
other Indebtedness, without giving effect to the application, directly or
indirectly, of the proceeds of such Borrowing), the following statements shall
be true and correct:
(a) the representations and warranties set forth in Article VI shall
----------
be true and correct in all material respects with the same effect as if
then made (unless stated to relate solely to an earlier date, in which case
such representations and warranties shall be true and correct as of such
earlier date); and
(b) no Default or Event of Default has occurred and is continuing or
would result from such Borrowing.
SECTION 5.2.2 Borrowing Request. The Administrative Agent shall have
-----------------
received a Borrowing Request for such Borrowing. Each of the delivery of a
Borrowing Request and the acceptance by the Borrower of the proceeds of such
Borrowing shall constitute a representation and warranty by the Borrower that on
the date of such Borrowing (both immediately before and after giving effect to
such Borrowing and the application of the proceeds thereof) the statements made
in Section 5.2.1 are true and correct.
-----
SECTION 5.2.3 Satisfactory Legal Form. All documents executed or
-----------------------
submitted pursuant hereto by or on behalf of the Borrower shall be satisfactory
in form and substance to the Administrative Agent and its counsel.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and each Lender to enter
into this Agreement and to make Loans hereunder, the Borrower represents and
warrants unto the Administrative Agent and each Lender as set forth in this
Article VI.
----------
SECTION 6.1 Organization; Power; Compliance with Law and Contractual
--------------------------------------------------------
Obligations. The Borrower (a) is a corporation validly organized and existing
-----------
and in good standing under the laws of the state of its incorporation, (b) is
duly qualified to do business and is in good standing as a foreign corporation
in each jurisdiction where the nature of its business requires such
qualification, (c) has all requisite corporate power and authority and holds all
material requisite governmental licenses, permits and other approvals to enter
into and perform its Obligations under each Loan Document and to conduct its
business substantially as currently conducted by it and (d) is in compliance
with all laws, governmental regulations, court decrees,
-26-
orders and Contractual Obligations applicable to it, except, with respect to
clauses (b), (c) and (d) to the extent that the failure to comply therewith
------- -------- ---
could not reasonably be expected to have a Material Adverse Effect.
SECTION 6.2 Due Authorization; Non-Contravention. The execution,
------------------------------------
delivery and performance by the Borrower of each Loan Document are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action, and do not:
(a) contravene the Borrower's Organic Documents;
(b) contravene any law, governmental regulation, court decree or order
or material Contractual Obligation binding on or affecting the Borrower;
or
(c) result in, or require the creation or imposition of, any Lien on
any of the Borrower's properties.
SECTION 6.3 Governmental Approval; Regulation. (a) No
---------------------------------
authorization, consent, approval, license, exemption of or filing or
registration with any court or governmental authority or regulatory body
("Governmental Approval") is required for the Borrower to execute and perform
---------------------
its obligations under the Loan Documents, except for those which have been duly
obtained or effected. No material Governmental Approval is required for the
Borrower to carry on its business, except for those which have been duly
obtained or effected.
(b) The Borrower is not subject to any regulation as an "investment
company" subject to the Investment Company Act of 1940, as amended, or as a
"holding company" or a "subsidiary company" or an "affiliate" of a "holding
company" subject to the Public Utility Holding Company Act of 1935, as amended
("PUHCA"), except that the Borrower is a "subsidiary company" of Edison
-----
International which is a "holding company" that is exempt from all regulation
under PUHCA (except Section 9(a)(2) thereof) pursuant to Section 3(a) thereof.
The Borrower is not otherwise subject to any regulation as a "public utility"
under any other applicable law, rule or regulation, which would have a Material
Adverse Effect.
SECTION 6.4 Validity. Each Loan Document constitutes the legal,
--------
valid and binding obligations of the Borrower enforceable in accordance with
their respective terms (except as may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights generally and
general principles of equity).
SECTION 6.5 Financial Information. The consolidated balance sheets
---------------------
of the Borrower as at December 31, 1997, and December 31, 1998, and the related
consolidated statements of income and cash flows of the Borrower, copies of
which have been furnished to the Administrative Agent, have been prepared in
accordance with GAAP consistently applied, and present fairly the consolidated
financial condition of the Borrower and its Subsidiaries as at the dates thereof
and the results of their operations for the periods then ended.
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SECTION 6.6 No Material Adverse Change. There has not occurred any
--------------------------
event or condition having a Material Adverse Effect since December 31, 1998.
SECTION 6.7 Litigation. There is no pending or, to the knowledge of
----------
the Borrower, threatened litigation, action, proceeding, or labor controversy
affecting the Borrower, or any of its properties, businesses, assets or
revenues, which, if adversely determined (taking into account any insurance
proceeds payable under a policy where the insurer has accepted coverage without
any reservations), would have a Material Adverse Effect or which purports to
adversely affect the legality, validity or enforceability of this or any Loan
Document.
SECTION 6.8 Ownership of Properties. The Borrower owns good and
-----------------------
marketable title to, or a valid leasehold interest in or other enforceable
interest in all properties and assets, real and personal, tangible and
intangible, of any nature whatsoever (including patents, trademarks, trade
names, service marks and copyrights) purported to be owned, leased or held by
it, free and clear of all Liens, charges or claims (including infringement
claims with respect to patents, trademarks, copyrights and the like) except as
permitted pursuant to Section 7.2.3.
-------------
SECTION 6.9 Taxes. The Borrower has filed all tax returns and
-----
reports required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such taxes or charges
which are being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP shall have been set
aside on its books.
SECTION 6.10 Pension and Welfare Plans. During the consecutive
-------------------------
twelve-month period prior to the date of the execution and delivery of this
Agreement and prior to the date of any Borrowing hereunder, no steps have been
taken to terminate any Pension Plan, and no contribution failure has occurred
with respect to any Pension Plan sufficient to give rise to a Lien under Section
302(f) of ERISA. No condition exists or event or transaction has occurred with
respect to any Pension Plan which could reasonably be expected to result in the
incurrence by the Borrower or any member of the Controlled Group of any material
liability (other than liabilities incurred in the ordinary course of maintaining
the Pension Plan), fine or penalty. Neither the Borrower nor any member of the
Controlled Group has any contingent liability with respect to any post-
retirement benefit under a Welfare Plan which could reasonably be expected to
have a Material Adverse Effect, other than liability for continuation coverage
described in Part 6 of Title I of ERISA.
SECTION 6.11 Environmental Warranties. (a) All facilities and
------------------------
property owned or leased by the Borrower or any of its Subsidiaries or
Partnerships have been, and continue to be, owned or leased by the Borrower and
its Subsidiaries in compliance with all Environmental Laws, except where the
failure so to comply would not have, or be reasonably expected to have, a
Material Adverse Effect.
(b) There are no pending or, to the knowledge of the Borrower,
threatened:
-28-
(i) material claims, complaints, notices or requests for
information received by the Borrower from governmental authorities
with respect to any alleged violation by the Borrower of any
Environmental Law; or
(ii) material complaints, notices or inquiries to the Borrower
from governmental authorities regarding potential liability under any
Environmental Law.
(c) There have been no Releases (as defined under any Environmental
Law) of Hazardous Materials at, on or under any property now or previously owned
or leased by the Borrower that, singly or in the aggregate, have, or may
reasonably be expected to have, a Material Adverse Effect.
(d) The Borrower has obtained and is in compliance with all permits,
certificates, approvals, licenses and other authorizations relating to
environmental matters and necessary for the Borrower's business, except where
the failure to obtain, maintain or comply with such permits, certificates,
approvals, licenses or other authorizations would not have, or be reasonably
expected to have, a Material Adverse Effect.
(e) No property now or previously owned or leased by the Borrower is
listed or proposed for listing (with respect to owned property only) on the
National Priorities List pursuant to any Environmental Law, on the CERCLIS or on
any similar state list of sites requiring investigation or clean-up.
(f) No conditions exist at, on or under any property now or previously
owned or leased by the Borrower which, with the passage of time, or the giving
of notice or both, would give rise to liability under any Environmental Law
which liability would have, or may reasonably be expected to have, a Material
Adverse Effect.
SECTION 6.12 Regulations T, U and X. The Borrower is not engaged in
----------------------
the business of extending credit for the purpose of purchasing or carrying
margin stock, and no proceeds of any Loans will be used for a purpose which
violates, or would be inconsistent with, F.R.S. Board Regulation T, U or X.
Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or
any regulations substituted therefor, as from time to time in effect, are used
in this Section with such meanings.
SECTION 6.13 Accuracy of Information. All factual information
-----------------------
heretofore or contemporaneously furnished by the Borrower in writing to the
Administrative Agent or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all other such written
factual information hereafter furnished by the Borrower in writing to the
Administrative Agent or any Lender will be, true and materially accurate in
every material respect on the date as of which such information is dated or
certified and as of the date of execution and delivery of this Agreement by the
Administrative Agent and such Lender, and such
-29-
information is not, or shall not be, as the case may be, incomplete by omitting
to state any material fact necessary to make such information not materially
misleading.
SECTION 6.14 The Obligations. The Obligations are senior, unsecured
---------------
Indebtedness of the Borrower ranking at least pari passu with all other senior,
---- -----
unsecured Indebtedness of the Borrower.
SECTION 6.15 Year 2000 Matters. The Borrower has reviewed its
-----------------
operations and those of its Subsidiaries with a view to assessing whether its
businesses or the businesses of any of its Subsidiaries will, in the receipt,
transmission, processing, manipulation, storage, retrieval, retransmission or
other utilization of data, be vulnerable to a Year 2000 Problem or will be
vulnerable to the effects of a Year 2000 Problem suffered by any of the
Borrower's or any of its Subsidiaries' major commercial counter-parties. Based
on such review the Borrower has no reason to believe that a Material Adverse
Effect will occur with respect to its businesses or operations or the businesses
or operations of any of its Subsidiaries resulting from a Year 2000 Problem.
ARTICLE VII
COVENANTS
SECTION 7.1 Affirmative Covenants. The Borrower agrees with the
---------------------
Administrative Agent and each Lender that, until the Commitments have terminated
and all Obligations have been paid and performed in full, the Borrower will
perform the obligations set forth in this Section 7.1.
-----------
SECTION 7.1.1 Financial Information, Reports, Notices. The Borrower
---------------------------------------
will furnish, or will cause to be furnished, to the Administrative Agent copies
of the following financial statements, reports, notices and information:
(a) as soon as available and in any event within 60 days after the end
of each of the first three Fiscal Quarters of each Fiscal Year of the
Borrower, consolidated balance sheets of the Borrower and its Subsidiaries
as of the end of such Fiscal Quarter and consolidated statements of income
and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter
and for the period commencing at the end of the previous Fiscal Year and
ending with the end of such Fiscal Quarter, certified by an Authorized
Representative with responsibility for financial matters;
(b) as soon as available and in any event within 120 days after the
end of each Fiscal Year of the Borrower, a copy of the annual audit report
for such Fiscal Year for the Borrower and its Subsidiaries, including
therein consolidated balance sheets of the Borrower and its Subsidiaries as
of the end of such Fiscal Year and consolidated statements of income and
cash flows of the Borrower and its Subsidiaries for such Fiscal Year, and
accompanied by the unqualified opinion of Xxxxxx Xxxxxxxx & Co. or other
internationally recognized independent auditors selected by the Borrower
which report
-30-
shall state that such consolidated financial statements present fairly in
all material respects the financial position for the periods indicated in
conformity with GAAP applied on a basis consistent with prior periods;
(c) concurrently with the delivery of the financial statements
referred to in Section 7.1.1.(a), a certificate, executed by the
-----------------
controller, treasurer or chief financial officer of the Borrower, showing
(in reasonable detail and with appropriate calculations and computations in
all respects satisfactory to the Administrative Agent) compliance with the
financial covenant set forth in Section 7.2.4;
-------------
(d) as soon as possible and in any event within five Business Days
after any Authorized Representative obtains knowledge of the occurrence of
each Default, a statement of such Authorized Representative setting forth
details of such Default or default and the action which the Borrower has
taken and proposes to take with respect thereto;
(e) as soon as possible and in any event within five Business Days
after (x) the occurrence of any material adverse development with respect
to any litigation, action, proceeding, or labor controversy of the type
described in Section 6.7 or (y) the commencement of any labor controversy,
-----------
litigation, action, proceeding of the type described in Section 6.7, notice
-----------
thereof and, upon request of the Administrative Agent, copies of all non-
privileged documentation relating thereto;
(f) promptly after the sending or filing thereof, copies of all
reports and registration statements which the Borrower files with the
Securities and Exchange Commission or any national securities exchange;
(g) immediately upon becoming aware of the institution of any steps by
the Borrower or any other Person to terminate any Pension Plan (other than
a standard termination under ERISA Section 4041(b)), or the failure to make
a required contribution to any Pension Plan if such failure is sufficient
to give rise to a Lien under Section 302(f) of ERISA, or the taking of any
action with respect to a Pension Plan which could result in the requirement
that the Borrower furnish a bond or other security to the PBGC or such
Pension Plan, or the occurrence of any event with respect to any Pension
Plan which could result in the incurrence by the Borrower or any member of
the Controlled Group of any material liability (other than liabilities
incurred in the ordinary course of maintaining the Pension Plan), fine or
penalty, or any increase in the contingent liability of the Borrower with
respect to any post-retirement Welfare Plan benefit which has a Material
Adverse Effect, notice thereof and copies of all documentation relating
thereto; and
(h) as soon as known, any changes in Borrower's Debt Rating by Xxxxx'x
or S&P or any other rating agency which maintains a Debt Rating on the
Borrower which is used in the Pricing Grid.
-31-
SECTION 7.1.2 Compliance with Laws. The Borrower will comply in all
--------------------
material respects with all applicable law, rules, regulations and orders, such
compliance to include the payment, before the same become delinquent, of all
taxes, assessments and governmental charges imposed upon it or upon its property
(except to the extent such assignments and charges are being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books).
SECTION 7.1.3 Maintenance of Properties. The Borrower will, and will
-------------------------
use reasonable efforts to cause each of its Subsidiaries and Partnerships to,
maintain, preserve, protect and keep its property and equipment in good repair,
working order and condition (ordinary wear and tear excepted), and make
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times unless
the Borrower determines in good faith that the continued maintenance of any of
its properties or equipment is no longer economically desirable and except where
the failure so to do would not have a Material Adverse Effect.
SECTION 7.1.4 Insurance. The Borrower will maintain or cause to be
---------
maintained with responsible insurance companies insurance with respect to its
properties and business against such casualties and contingencies and of such
types and in such amounts as is customary in the case of similar businesses.
SECTION 7.1.5 Books and Records. The Borrower will, and will cause
-----------------
each of its active Subsidiaries to, keep books and records which accurately
reflect all of its business affairs and transactions and permit the
Administrative Agent and each Lender or any of their respective representatives
(at the Administrative Agent's or such Lender's expense), at reasonable times
and intervals upon reasonable prior notice, to visit all of its offices, to
discuss its financial matters with its officers and independent public
accountant. The Borrower will at any reasonable time and from time to time upon
reasonable prior notice, permit the Administrative Agent and the Lenders or any
of their respective agents or representatives to examine and make copies of and
abstracts from the records and books of account of the Borrower; provided that
by virtue of this Section 7.1.5 the Borrower shall not be deemed to have waived
-------------
any right to confidential treatment of the informational obtained, subject to
the provisions of applicable law or court order.
SECTION 7.1.6 Environmental Covenant. The Borrower will, and will
----------------------
use best efforts to cause each of its Subsidiaries and Partnerships to:
(a) use and operate all of its facilities and properties in compliance
with all Environmental Laws, keep all necessary permits, approvals,
certificates, licenses and other authorizations relating to environmental
matters in effect and remain in material compliance therewith, and handle
all Hazardous Materials in material compliance with all applicable
Environmental Laws, in each case where the failure to do so may reasonably
be expected to have a Material Adverse Effect;
-32-
(b) promptly cure and have dismissed with prejudice to the reasonable
satisfaction of the Administrative Agent any actions and proceedings
relating to compliance with Environmental Laws where such action or
proceeding may reasonably be expected to have a Material Adverse Effect;
provided that the Borrower or such Subsidiary or Partnership may postpone
--------
such cure and dismissal during any period in which it is diligently
pursuing any available appeals in such action or proceeding so long as such
postponement would not be reasonably likely to have a Material Adverse
Effect; and
(c) provide such non-privileged information as the Administrative
Agent may reasonably request from time to time to evidence compliance with
this Section 7.1.6.
-------------
SECTION 7.1.7 Conduct of Business and Maintenance of Existence. The
------------------------------------------------
Borrower will continue to engage in business of the same type as now conducted
by it and preserve, renew and keep in full force and effect its corporate
existence and take all reasonable action to maintain all material rights,
privileges and franchises necessary or desirable in the normal conduct of its
business, except, in each case, as otherwise permitted by Section 7.2.6.
-------------
SECTION 7.1.8 Year 2000 Matters. The Borrower will, and will use best
-----------------
efforts to cause each of its Subsidiaries and Partnerships to assure that its
computer based systems are able to effectively process data including dates on
and after January 1, 2000.
SECTION 7.1.9 Use of Proceeds. The Borrower will apply the proceeds
---------------
of the Loans to provide liquidity support for the Borrower's commercial paper
program or for general corporate purposes.
SECTION 7.2 Negative Covenants. The Borrower agrees with the
------------------
Administrative Agent and each Lender that, until all Commitments have terminated
and all Obligations have been paid and performed in full, the Borrower will, and
will cause each of its Subsidiaries and Partnerships, as applicable, to perform
the obligations set forth in this Section 7.2.
-----------
SECTION 7.2.1 Restrictions on Secured Indebtedness. The Borrower
------------------------------------
will not create, incur, assume or suffer to exist any secured Indebtedness other
than:
(a) Capitalized Lease Liabilities and other secured Indebtedness of
any kind whatsoever (including, without limitation, Indebtedness secured by
a pledge of the stock of a Subsidiary not otherwise permitted under clause
------
(b) of this Section 7.2.1) at any time outstanding not exceeding an
--- -------------
aggregate principal amount equal to 10% of Net Tangible Assets; provided
that any Indebtedness exceeding such amount may be secured pursuant to
Section 7.2.3(f); and
----------------
(b) Non-Recourse Debt with respect to which the Borrower has pledged
the stock of a Subsidiary in order to secure initial project financing
obtained or being obtained
-33-
after the Effective Date hereof by such Subsidiary (or the Partnership in
which such Subsidiary is a partner).
SECTION 7.2.2 [Reserved].
--------
SECTION 7.2.3 Liens. The Borrower will not create, incur, assume or
-----
suffer to exist any Lien upon any of its property, revenues or assets, whether
now owned or hereafter acquired, except:
(a) Liens granted to secure payment of Indebtedness of the type
permitted and described in clause (b) of Section 7.2.l;
---------- -------------
(b) Liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without penalty or
which are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall
have been set aside on its books;
(c) Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business for sums not overdue
or which are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall
have been set aside on its books;
(d) Liens incurred in the ordinary course of business in connection
with workmen's compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of tenders,
statutory obligations, leases and contracts (other than for borrowed money)
entered into in the ordinary course of business or to secure obligations on
surety or appeal bonds;
(e) judgment Liens in existence less than 30 days after the entry
thereof or with respect to which execution has been stayed or the payment
of which is covered in full (subject to a customary deductible) by
insurance maintained with responsible insurance companies;
(f) Liens upon any property at any time directly owned by the Borrower
to secure any Indebtedness of the nature described in clause (a) of Section
---------- -------
7.2.1 in excess of the amount otherwise permitted thereby, provided that
----- --------
the Obligations shall be equally and ratably secured with any and all such
Indebtedness and with any other Indebtedness similarly entitled to be
equally and ratably secured; and
(g) any Lien existing on the property of the Borrower on the Effective
Date.
In the event that the Borrower shall propose to create, incur, assume
or suffer to exist any Lien upon any property at any time directly owned by it
to secure any Indebtedness as contemplated by clause (f) above, the Borrower
----------
will give prior written notice thereof to the
-34-
Administrative Agent, who shall give notice to the Lenders, and the Borrower
will, prior to or simultaneously with the creation of such Lien, effectively
secure the Obligations equally and ratably with such Indebtedness.
SECTION 7.2.4 Financial Condition. The Borrower will not permit its
-------------------
Tangible Net Worth to be less than $400,000,000 plus 25% of the Borrower's and
----
its Subsidiaries' consolidated net income earned (without subtracting net
losses) in each Fiscal Quarter commencing with the quarter ending after
September 30, 1992.
SECTION 7.2.5 Investments. The Borrower will not, and will not
-----------
permit any of its Subsidiaries to, make, incur, assume or suffer to exist any
Investment in any other Person, except:
(a) Investments existing on the Effective Date;
(b) Cash Equivalent Investments, provided, however, that any
-------- -------
Investment which when made complies with the requirements of the definition
of the term "Cash Equivalent Investment" may continue to be held
--------------------------
notwithstanding that such Investment if made thereafter would not comply
with such requirements.
(c) without duplication, Investments permitted as Indebtedness
pursuant to Section 7.2.1;
-------------
(d) otherwise in the ordinary course of business; and
(e) Investments permitted pursuant to Section 7.2.6(b).
----------------
SECTION 7.2.6 Consolidation, Merger. The Borrower will not, and will
---------------------
not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with,
or merge into or with, any other corporation, or purchase or otherwise acquire
all or substantially all of the assets of any Person (or of any division
thereof) except:
(a) any such Subsidiary may liquidate or dissolve voluntarily into,
and may merge with and into, the Borrower or any other Subsidiary, and the
assets or stock of any Subsidiary may be purchased or otherwise acquired by
the Borrower or any other Subsidiary;
(b) so long as no Default (by reason of the violation of Section
-------
7.2.4) has occurred and is continuing or would occur after giving effect
-----
thereto, the Borrower or any of its Subsidiaries may purchase all or
substantially all of the assets of any Person, or (in the case of any such
Subsidiary) acquire such person by merger; and
(c) provided that no Default has occurred and is continuing or would
occur after giving effect thereto (including, without limitation, a Change
in Control), the
-35-
Borrower may consolidate with or merge into any other Person, or convey,
transfer or lease its properties and assets substantially as an entirety to
any person, or permit any Person to merge into or consolidate with the
Borrower if the Borrower is the surviving corporation or the surviving
corporation or purchaser or lessee is a corporation incorporated under the
laws of the United States of America or Canada and assumes the Obligations.
SECTION 7.2.7 Asset Dispositions. The Borrower will not, and will
------------------
not permit any of its Subsidiaries to, sell, transfer, lease, contribute or
otherwise convey, or grant options, warrants or other rights with respect to,
all or any substantial part of its assets (including accounts receivable and
capital stock of Subsidiaries) to any Person, unless:
(a) such sale, transfer, lease, contribution or conveyance is the
ordinary course of its business; or
(b) the net book value of such assets, together with the net book
value of all other assets sold, transferred, leased, contributed or
conveyed otherwise than in the ordinary course of business by the Borrower
or any of its Subsidiaries pursuant to this Section 7.2.7(b) during the
----------------
most recent 12-month period since the Effective Date, does not exceed 10%
of Net Tangible Assets computed as of the end of the most recent quarter
preceding such sale; provided, however, that any such sales shall be
-------- -------
disregarded for purposes of the limitation of this Section 7.2.7(b) if the
----------------
proceeds are invested in assets in similar or related lines of business of
the Borrower, and provided further, that the Borrower may sell or otherwise
-------- -------
dispose of assets in excess of such 10% if the proceeds from such sales or
dispositions, which are not so reinvested, are retained by the Borrower as
cash or Cash Equivalent Investments.
SECTION 7.2.8 Transactions with Affiliates. The Borrower will not
----------------------------
enter into, or cause, suffer or permit to exist any arrangement or contract with
any of its Affiliates unless such arrangement or contract is fair and equitable
to the Borrower and is an arrangement or contract of the kind which would be
entered into by a prudent Person in the position of the Borrower with a Person
which is not one of its Affiliates.
SECTION 7.2.9 Restrictive Agreements. The Borrower will not, and
----------------------
will not permit any of its Subsidiaries to, enter into any agreement (excluding
any Loan Document and any agreement governing any Indebtedness permitted by
clause (b) of Section 7.2.1 as to the assets financed with the proceeds of such
---------- -------------
Indebtedness) prohibiting:
(a) the ability of the Borrower to amend or otherwise modify any Loan
Document; or
(b) the ability of any Subsidiary to make any payments, directly or
indirectly, to the Borrower by way of dividend, advances, repayments of
loans or advances, reimbursements of management and other intercompany
charges, expenses and accruals or
-36-
other returns on investments, or any other agreement or arrangement which
restricts the ability of any such Subsidiary to make any payment, directly
or indirectly, to the Borrower where such prohibition or restriction has a
Material Adverse Effect.
SECTION 7.3 ERISA. The Borrower will not engage in any prohibited
-----
transactions under Section 406 of ERISA or under Section 4975 of the Internal
Revenue Code, which would subject the Borrower to any tax, penalty or other
liabilities having a Material Adverse Effect.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1 Listing of Events of Default. Each of the following
----------------------------
events or occurrences described in this Section 8.1 shall constitute an "Event
----------- -----
of Default".
----------
SECTION 8.1.1 Non-Payment of Obligations. The Borrower shall default
--------------------------
in the payment when due of any principal of or interest on any Loan or the
Borrower shall default (and such default shall continue unremedied for a period
of five Business Days) in the payment when due of any Facility Fee, Utilization
Fee or of any other Obligation.
SECTION 8.1.2 Breach of Warranty. Any representation or warranty of
------------------
the Borrower made or deemed to be restated or remade in any Loan Document or any
other writing or certificate furnished by or on behalf of the Borrower to the
Administrative Agent or any Lender for the purposes of or in connection with any
Loan Document (including any certificates delivered pursuant to Article V) is or
shall be incorrect when made or deemed made in any material respect.
SECTION 8.1.3 Non-Performance of Certain Covenants and Obligations.
----------------------------------------------------
The Borrower shall default in the due performance and observance of any of its
obligations under Section 7.2 (other than Sections 7.2.4 and 7.2.8 ).
----------- -------------- -----
SECTION 8.1.4 Non-Performance of Other Covenants and Obligations.
--------------------------------------------------
The Borrower shall default in the due performance and observance of any other
covenant or agreement contained in any Loan Document, and such default shall
continue unremedied for a period of 30 days after written notice thereof shall
have been given to the Borrower by the Administrative Agent.
SECTION 8.1.5 Default on Other Indebtedness. A default shall occur
-----------------------------
in the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness of the Borrower or a default
shall occur in the performance or observance of any obligation or condition with
respect to such Indebtedness if the effect of such default is to accelerate the
maturity of any such Indebtedness or such default shall continue unremedied for
any applicable period of time sufficient to permit the holder or holders of such
Indebtedness, or any trustee or agent for such holders, to cause such
Indebtedness to become due and payable
-37-
prior to its expressed maturity, in either case, such default having a principal
amount, individually or in the aggregate, in excess of $20,000,000 (other than
----------
Indebtedness described in Section 8.1.1 ).
--------------
SECTION 8.1.6 Judgments. Any judgment or order for the payment of
---------
money in excess of $20,000,000 (taking into account any Insurance proceeds
payable under a policy where the insurer has accepted coverage without
reservation) shall be rendered against the Borrower and either:
(a) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order; or
(b) there shall be any period of fifteen (15) consecutive days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect.
SECTION 8.1.7 Pension Plans. Any of the following events shall occur
-------------
with respect to any Pension Plan:
(a) the institution of any steps by the Borrower, any member of its
Controlled Group or any other Person to terminate a Pension Plan if, as a
result of such termination, the Borrower or any such member could be
required to make a contribution to such Pension Plan, or could reasonably
expect to incur a liability or obligation to such Pension Plan, in excess
of $20,000,000; or
(b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA.
SECTION 8.1.8 Control of the Borrower. Any Change in Control shall
-----------------------
occur.
SECTION 8.1.9 Bankruptcy, Insolvency. The Borrower shall:
----------------------
(a) become insolvent or generally fail to pay, or admit in writing its
inability or unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for the Borrower or a
substantial portion of its property, or make a general assignment for the
benefit of creditors;
(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestration or other custodian for the Borrower or for a substantial part
of its property, and such trustee, receiver, sequestration or other
custodian shall not be discharged within 60 days, provided that nothing in
--------
the Loan Documents shall prohibit or restrict any right the Administrative
-38-
Agent or any Lender may have under applicable law to appear in any court
conducting any relevant proceeding during such 60-day period to preserve,
protect and defend its rights under the Loan Documents (and the Borrower
shall not object to any such appearance);
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or liquidation
proceeding, in respect of the Borrower, and, if any such case or proceeding
is not commenced by the Borrower, such case or proceeding shall be
consented to or acquiesced in by the Borrower or shall result in the entry
of an order for relief or shall remain for 60 days undismissed, provided
--------
that nothing in the Loan Documents shall prohibit or restrict any right the
Administrative Agent or any Lender may have under applicable law to appear
in any court conducting any such case or proceeding during such 60-day
period to preserve, protect and defend its rights under the Loan Documents
(and the Borrower shall not object to any such appearance); or
(e) take any corporate action authorizing, or in furtherance of, any
of the foregoing.
SECTION 8.2 Action if Bankruptcy. If any Event of Default described
--------------------
in clauses (a) through (e) of Section 8.1.9 shall occur with respect to the
----------- --- -------------
Borrower, the Commitments (if not theretofore terminated) shall automatically
terminate and the outstanding principal amount of all outstanding Loans and all
other Obligations shall automatically be and become immediately due and payable,
without notice or demand.
SECTION 8.3 Action if Other Event of Default. If any Event of
--------------------------------
Default (other than any Event of Default described in clauses (a) through (e) of
----------- ---
Section 8.1.9) shall occur for any reason, whether voluntary or involuntary, and
--------------
be continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by written notice to the Borrower declare all or any portion of
the outstanding principal amount of the Loans and other Obligations to be due
and payable and/or the Commitments (if not theretofore terminated) to be
terminated, whereupon the full unpaid amount of such Loans and other Obligations
which shall be so declared due and payable shall be and become immediately due
and payable, without further notice, demand or presentment and/or, as the case
may be, the Commitments shall terminate. The rights provided for in the Loan
Documents are cumulative and are not exclusive of any other rights, powers,
privileges or remedies provided by law or in equity, or under any other
instrument, document or agreement now existing or hereafter arising.
SECTION 8.4 Rescission of Declaration. Any declaration made pursuant
-------------------------
to Section 8.3 may, should the Required Lenders in their sole and absolute
-----------
discretion so elect, be rescinded by written notice to the Borrower at any time
after the principal of the Loans and the Notes shall have become due and
payable, but before any judgment or decree for the payment of the monies so due,
or any part thereof, shall have been entered; provided that the Borrower shall
--------
have paid all arrears of interest upon the Loans and all other amounts then owed
to the
-39-
Administrative Agent and the Lenders including all costs, expenses and
liabilities incurred by the Administrative Agent and the Lenders in respect of
such declaration and all consequences thereof (except that principal of the
Loans which by such declaration shall have become payable) and every other Event
of Default shall have been made good, waived or cured; provided that no such
--------
rescission or annulment shall extend to or affect any subsequent Event of
Default or impair any right consequent thereon.
ARTICLE IX
THE AGENT
SECTION 9.1 Actions. (a) Each Lender hereby appoints CUSA as its
-------
Administrative Agent under and for purposes of each Loan Document. Each Lender
authorizes the Administrative Agent to act on behalf of such Lender under each
Loan Document and, in the absence of other written instructions from the
Required Lenders received from time to time by the Administrative Agent (with
respect to which the Administrative Agent agrees that it will comply, except as
otherwise provided in this Section or as otherwise advised by counsel), to
exercise such powers hereunder and thereunder as are specifically delegated to
or required of the Administrative Agent by the terms hereof and thereof,
together with such powers as may be reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in any Loan
Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship with
any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into any Loan Document or otherwise
exist against the Administrative Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" in this Agreement with reference
to the Administrative Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any applicable
law. Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between
independent contracting parties.
(b) Each Lender hereby agrees to indemnify (which indemnity shall
survive any termination of this Agreement) the Agent-Related Persons pro rata
--- ----
according to such Lender's Percentage, from and against any and all liabilities,
obligations, losses, damages, claims, costs or expenses of any kind or nature
whatsoever which may at any time be imposed on, incurred by, or asserted
against, the Agent-Related Persons in any way relating to or arising out of any
Loan Document, including reasonable attorneys' fees, and as to which the
Administrative Agent is not reimbursed by the Borrower; provided, however, that
-------- -------
no Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, claims, costs or expenses which are determined by
a court of competent jurisdiction in a final proceeding to have resulted from
the Agent-Related Person's gross negligence or wilful misconduct. No Agent-
Related Persons shall be required to take any action under any Loan Document, or
to prosecute or defend any suit in respect of or any Loan Document, unless it is
indemnified hereunder to its satisfaction. If any indemnity in favor of the
Administrative Agent shall be or become, in its determination,
-40-
inadequate, the Agent-Related Person may call for additional indemnification
from the Lenders and cease to do the acts indemnified against hereunder until
such additional indemnity is given.
SECTION 9.2 Funding Reliance. Unless the Administrative Agent shall
----------------
have been notified by telephone, confirmed in writing, by any Lender by 12:00
Noon, New York City time, on the Business Day prior to a Borrowing that such
Lender will not make available the amount which would constitute its Percentage
of such Borrowing on the date specified therefor, the Administrative Agent may
assume that such Lender has made such amount available to the Administrative
Agent and, in reliance upon such assumption, may, but shall not be required to,
make available to the Borrower a corresponding amount. If and to the extent
that such Lender shall not have made such amount available to the Administrative
Agent, such Lender and the Borrower severally agree to repay the Administrative
Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date the Administrative Agent made such amount
available to the Borrower to the date such amount is repaid to the
Administrative Agent, at the interest rate applicable at the time to Loans
comprising such Borrowing; provided, that if such Lender makes available the
--------
amount which is its Percentage of such Borrowing on or before the next Business
Day following the day when due, the interest rate payable on such amount shall
be the Federal Funds Rate.
SECTION 9.3 Exculpation. No Agent-Related Person shall be liable to
-----------
any Lender for any action taken or omitted to be taken by it under or any Loan
Document, or in connection therewith, except for its own wilful misconduct or
gross negligence, nor responsible for any recitals or warranties herein or
therein, nor for the effectiveness, enforceability, validity or due execution of
any Loan Document, nor to make any inquiry respecting the performance by the
Borrower of its obligations under any Loan Document. Any such inquiry which
may be made by the Administrative Agent shall not obligate it to make any
further inquiry or to take any action. Each Agent-Related Person shall be
entitled to rely upon advice of counsel concerning legal matters and upon any
notice, consent, certificate, statement or writing which the Administrative
Agent believes to be genuine and to have been presented by a proper Person.
SECTION 9.4 Successor. The Administrative Agent may resign as such
---------
at any time upon at least 30 days' prior notice to the Borrower and all Lenders.
If the Administrative Agent at any time shall resign, the Required Lenders may,
within ten (10) days after such notice and with the consent of the Borrower (not
to be unreasonably withheld), appoint another Lender as a successor
Administrative Agent which shall thereupon become the Administrative Agent
hereunder. If no successor Administrative Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, after notice to and
consultation with the Borrower, appoint a successor Administrative Agent, which
shall be one of the Lenders or an Eligible Assignee, and shall have a combined
capital and surplus of at least $250,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall be entitled to receive from the
retiring Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may reasonably
-41-
request, and shall thereupon succeed to and become vested with all rights,
powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After the effective date of any retiring
Administrative Agents resignation hereunder as the Administrative Agent, the
provisions of (a) this Article IX shall inure to its benefit as to any actions
----------
taken or omitted to be taken by it while it was the Administrative Agent under
this Agreement; and (b) Section 10.3 and Section 10.4 shall continue to inure to
------------ ------------
its benefit.
SECTION 9.5 Loans by CUSA. CUSA shall have the same rights and
-------------
powers with respect to the Loans made by it or any of its Affiliates as any
other Lender and may exercise the same as if it were not the Administrative
Agent. CUSA and its Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Subsidiary or
Affiliate of the Borrower as if CUSA were not the Administrative Agent
hereunder.
SECTION 9.6 Reliance by Administrative Agent. (a) The Administrative
--------------------------------
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any writing, resolution, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, statement 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 Company), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under any
Loan Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under any Loan Document in
accordance with a request or consent of the Required Lenders and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 5.1, each Lender that has executed this Agreement shall be
-----------
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Administrative Agent to such Lender
for consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lender.
SECTION 9.7 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, except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account of the
Lenders, unless the Administrative Agent shall have received written 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". The
Administrative Agent will notify the Lenders of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be requested
-42-
by the Required Lenders in accordance with Article VIII; provided, however, that
-------- -------
unless and until the Administrative Agent has received any such request, 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 or in the best interest of the Lenders.
SECTION 9.8 Credit Decisions. Each Lender acknowledges that it has,
----------------
independently of the Agent-Related Person and each other Lender, and based on
such Lender's review of the financial information of the Borrower, the Loan
Documents (the terms and provisions of which being satisfactory to such Lender)
and such other documents, information and investigations as such Lender has
deemed appropriate, made its own credit decision to extend its Commitments.
Each Lender also acknowledges that it will, independently of the Administrative
Agent and each other Lender, and based on such other documents, information and
investigations as it shall deem appropriate at any time, continue to make its
own credit decisions as to exercising or not exercising from time to time any
rights and privileges available to it under any Loan Document.
SECTION 9.9 Copies. The Administrative Agent shall give prompt
------
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by the Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for its account and copies of all other communications received by the
Administrative Agent from the Borrower for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Waivers, Amendments. (a) The provisions of each Loan
-------------------
Document may from time to time be amended, modified or waived, if such
amendment, modification or waiver is in writing and consented to by the Borrower
and the Required Lenders; provided, however, that no such amendment,
-------- -------
modification or waiver shall (i) 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
Commitment without the consent of each Lender directly affected thereby; (ii)
amend, modify or waive any provision of this Section 10.1 or any percentage
------------
specified in the definition of Required Lenders, or consent to the assignment or
transfer by the Borrower of any of its rights and obligations under the Loan
Documents, in each case without the written consent of all Lenders; (iii) amend,
modify or waive any pro rata provision of Section 4.9, or any provision in the
--- ---- -----------
Loan Documents which provides for amounts paid in respect of the Obligations to
be shared among the Lenders ratably, without the consent of all Lenders. 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 and its Subsidiaries, the Lenders and the
Administrative Agent shall be restored to their
-43-
former position and rights and under the 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.
(b) No failure or delay on the part of the Administrative Agent or any
Lender in exercising any power or right under any Loan Document shall operate as
a waiver thereof, nor shall any single or partial exercise of any such power or
right preclude any other or further exercise thereof or the exercise of any
other power or right. No notice to or demand on the Borrower in any case shall
entitle it to any notice or demand in similar or other circumstances. No waiver
or approval by the Administrative Agent or any Lender under any Loan Document
shall, except as may be otherwise stated in such waiver or approval, be
applicable to subsequent transactions. No waiver or approval hereunder shall
require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
SECTION 10.2 Notices. All notices and other communications provided
-------
to any party hereto under any Loan Document shall be in writing or by facsimile
and addressed, delivered or transmitted to such party at its address or
facsimile number set forth on Schedule 1.1(b) or set forth in the Lender
---------------
Assignment Agreement or at such other address or facsimile number as may be
designated by such party in a written notice to the other parties. Any notice,
if mailed and properly addressed with postage prepaid shall be effective five
Business Days after being sent or if properly addressed and sent by pre-paid
courier service, shall be deemed given when received; any notice, if transmitted
by facsimile, shall be deemed given when transmitted (if confirmed).
SECTION 10.3 Payment of Costs and Expenses. (a) The Borrower agrees
-----------------------------
to pay promptly on demand all reasonable costs and expenses of the Lead
Arrangers and the Administrative Agent (including the reasonable fees and out-
of-pocket costs and expenses of counsel to the Administrative Agent) in
connection with:
(i) the negotiation, preparation, execution and delivery of each
Loan Document, including schedules and exhibits, and any amendments,
waivers, consents, supplements or other modifications to any Loan
Document as may from time to time hereafter be required; and
(ii) the preparation and review of the form of any document or
instrument relevant to any Loan Document; provided, however, that the
-------- -------
Borrower shall have no obligation to pay for the cost of the
documentation of assignments or participations as provided in Section
-------
10.11 (unless such assignment is made pursuant to Section 4.11);
----- -------------
in each case, upon presentation of statement of account, whether or not the
transactions contemplated hereby are consummated.
(b) The Borrower further agrees to pay upon demand, and to save the
Administrative Agent and the Lenders harmless from all liability for, any stamp
or other taxes
-44-
which may be payable in connection with the execution, delivery or enforcement
of any Loan Document or with the Borrowings hereunder. The Borrower also agrees
to reimburse the Administrative Agent and each Lender, as applicable, promptly
upon demand for (x) all reasonable out-of-pocket costs and expenses (including
fees and out-of-pocket expenses of counsel) incurred by the Administrative Agent
and each Lender in connection with the negotiation of any restructuring or work-
out, whether or not consummated, of any Obligations and (y) all out-of-pocket
costs and expenses (including fees and out-of-pocket costs and expenses of
counsel) by the Administrative Agent and each Lender in connection with the
enforcement of any Obligations after an Event of Default; provided that, in
--------
either case, the Borrower shall not be obligated to reimburse such costs and
expenses that are found in a final judgment by a court of competent jurisdiction
to have been incurred in an attempt to enforce such rights and remedies that
were pursued by such Administrative Agent or Lender in bad faith and without any
reasonable basis in fact or law.
SECTION 10.4 Indemnification. (a) In consideration of the execution
---------------
and delivery of this Agreement by each Lender and the extension of the
Commitments, the Borrower hereby indemnifies, exonerates and holds the
Administrative Agent, the Lead Arrangers and each Lender and each of their
respective affiliates, officers, directors and employees (collectively, the
"Indemnified Parties") free and harmless from and against any and all losses,
-------------------
costs, actions, causes of action, suits, liabilities and damages, and expenses
incurred in connection therewith (irrespective of whether any such Indemnified
Party is a party to the action for which indemnification hereunder is sought),
including any amounts paid to any Agent-Related Person pursuant to Section
-------
9.1(b) and reasonable attorneys' fees and disbursements but excluding claims for
------
lost profits (collectively, the "Indemnified Liabilities"), joint or several,
-----------------------
that may be incurred by or asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with or relating to:
(i) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Loan;
(ii) the entering into and performance of any Loan Document by any of
the Indemnified Parties (including any action brought by or on behalf of
the Borrower as the result of any determination by the Required Lenders
pursuant to Article VI not to fund any Borrowing);
----------
(iii) any investigation, litigation, proceeding, or obligation
related to any Environmental Law or other matter in any case arising out of
the relationship of the parties under this Agreement; or
(iv) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission or release from, any real property owned,
leased or operated by any Loan Party thereof of any Hazardous Material
(including any losses, liabilities, damages, injuries, costs, expenses or
claims asserted or arising under any Environmental Law), or at any other
locations regardless of whether caused by, or
-45-
within the control of, such Loan Party, where such claim or liability
arises out of the relationship of the parties under this Agreement;
whether or not such investigation, litigation or proceeding is brought by the
Borrower or its Affiliates, any of their respective shareholders or creditors,
an Indemnified Party or any other person, or an Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated, except for any such Indemnified Liabilities arising for the account
of a particular Indemnified Party by reason of the relevant Indemnified Party's
(i) gross negligence or willful misconduct or (ii) breach of such Indemnified
Party's obligations under this Agreement. If and to the extent that the
foregoing undertaking may be unenforceable for any reason, the Borrower hereby
agrees to make the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities which is permissible under applicable law.
(b) To the extent permitted by applicable law, no Indemnified Party
shall have any liability to the Borrower or its Affiliates or any of their
respective shareholders or creditors under any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement
or any agreement or instrument contemplated hereby, any Loan or the use of the
proceeds thereof.
SECTION 10.5 Survival. The obligations of the Borrower under
--------
Sections 4.3, 4.5 , 4.6 , 4.7 , 10.3 and 10.4 , and the obligations of the
------------ --- --- --- ---- ----
Lenders under Section 9.1, shall in each case survive any termination of this
-----------
Agreement, the payment in full of all Obligations and the termination of all
Commitments. The representations and warranties made by the Borrower in each
Loan Document shall survive the execution and delivery of such Loan Document.
SECTION 10.6 Severability. Any provision of any Loan Document which
------------
is prohibited or unenforceable in any jurisdiction shall, as to such provision
and such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of such Loan
Document or affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION 10.7 Headings. The various headings of each Loan Document
--------
are inserted for convenience only and shall not affect the meaning or
interpretation of such other Loan Document or any provisions hereof or thereof.
SECTION 10.8 Execution in Counterparts. This Agreement may be
-------------------------
executed by the parties hereto in several counterparts, each of which shall be
executed by the Borrower and the Administrative Agent and be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SECTION 10.9 Governing Law; Entire Agreement. This Agreement, the
-------------------------------
Notes 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. The Loan Documents, together with the fee letter referred to
in Section 3.3.3 and the commitment letter of
-------------
-46-
even date therewith, represent the agreement of the Borrower, the Administrative
Agent and the Lenders and supersede any and all prior agreements and
understandings, oral or written, relative or 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 in the Loan Documents.
SECTION 10.10 Successors and Assigns. This Agreement shall be
----------------------
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that:
-------- -------
(a) the Borrower may not assign or transfer its rights or obligations
hereunder without the prior written consent of the Administrative Agent and
all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders are
subject to Section 10.11.
-------------
SECTION 10.11 Sale and Transfer of Loans and Notes; Participations in
-------------------------------------------------------
Loans and Notes. Each Lender may assign, or sell participations in, its Loans
---------------
and Commitments to one or more other Persons in accordance with this Section
-------
10.11.
-----
SECTION 10.11.1 Assignments. (a) Any Lender (an "Assignor") may, in
----------- --------
accordance with applicable law, at any time and from time to time assign to any
Eligible Assignee, with the consent of the Administrative Agent and, except at
any time a Default or Event of Default shall have occurred and be continuing,
the Borrower (which, in each case, shall not be unreasonably withheld or
delayed), all or any part of its rights and obligations under this Agreement
pursuant to a Lender Assignment Agreement, executed by such Eligible 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 Eligible
--------
Assignee (other than any Lender or any affiliate thereof) shall be in an
aggregate principal amount of less than $10,000,000 (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 and; provided,
--------
further, that after giving effect to any such assignment the assigning Lender
-------
shall have a Commitment remaining of at least $10,000,000 in the aggregate
amount (other than in the case of an assignment of all of a Lender's interests
under this Agreement). Upon such execution, delivery, acceptance and recording,
from and after the effective date determined pursuant to such Lender Assignment
Agreement, (x) the Eligible Assignee thereunder shall be a party hereto and, to
the extent provided in such Lender Assignment Agreement, have the rights and
obligations of a Lender hereunder with a Commitment and/or Loans as set forth
therein, and (y) the Assignor thereunder shall, to the extent provided in such
Lender Assignment Agreement, be released from its obligations under this
Agreement (and, in the case of a Lender Assignment Agreement 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
-------
10.11, the consent of the Borrower shall not be
-----
-47-
required for any assignment that occurs when a Default or an Event of Default
pursuant to Section 8.1 shall have occurred and be continuing with respect to
-----------
the Borrower.
(b) The Administrative Agent shall, on behalf of the Borrower,
maintain at its address referred to on Schedule 1.1(b) a copy of each Lender
---------------
Assignment Agreement delivered to it and a register (the "Register") for the
--------
recordation of the names and addresses of the Lenders and the Commitment 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 Lender Assignment
Agreement, and thereupon one or more new Notes shall be issued to the designated
Eligible Assignee.
(c) Upon its receipt of a Lender Assignment Agreement executed by an
Assignor, an Eligible Assignee and any other Person whose consent is required by
Section 10.11.1(a), together with payment to the Administrative Agent of a
------------------
registration and processing fee of $3,000, the Administrative Agent shall (i)
promptly accept such Lender Assignment Agreement and (ii) record the information
contained therein in the Register on the effective date determined pursuant
thereto.
(d) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this Section 10.11.1 concerning assignments of Loans
---------------
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.
(e) 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 (d) of this Section 10.11.1.
------------- ---------------
SECTION 10.11.2 Participations. Any Lender may at any time sell to
--------------
one or more commercial banks or other Persons (each of such commercial banks and
other Persons being herein called a "Participant") participating interests in
-----------
any of the Loans, Commitments, or other interests of such Lender hereunder;
provided, however, that:
-------- -------
(a) no participation contemplated in this Section 10.11.2 shall
---------------
relieve such Lender from its Commitments or its other obligations under any
Loan Document;
-48-
(b) such Lender shall remain solely responsible for the performance of
its Commitments and such other obligations;
(c) 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 each of the Loan Documents;
(d) no Participant, unless such Participant is an Affiliate of such
Lender, or is itself a Lender, shall be entitled to require such Lender to
take or refrain from taking any action under any Loan Document, except as
provided in clause (f) of this Section 10.11.2;
---------- ---------------
(e) the Borrower shall not be required to pay any amount under
Sections 4.3, 4.4 , 4.5 , 4.6 , 4.7 , 4.8 , 4.9 , 10.3 and 10.4 ,
------------ --- --- --- --- --- --- ---- ----
that is greater than the amount which it would have been required to pay
had no participating interest been sold;
(f) 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,
extend the due date of such principal, interest or fee payments or increase
the amount or extend the Commitment Termination Date of such Loans, in each
case to the extent subject to such participation;
(g) 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 4.10 as
------------
fully as if it were a Lender hereunder; and
(h) the Borrower also agrees that each Participant shall be entitled
to the benefits of Sections 4.3, 4.6 and 4.7 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 4.7, 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.
SECTION 10.12 Other Transactions. Nothing contained herein shall
------------------
preclude the Administrative Agent or any other Lender from engaging in any
transaction, in addition to those
-49-
contemplated by any Loan Document, with the Borrower or any of its Affiliates in
which the Borrower or such Affiliate is not restricted hereby from engaging with
any other Person.
SECTION 10.13 Submission To Jurisdiction; Waivers. Each of the
-----------------------------------
Borrower, the Administrative Agent and the Lenders hereby irrevocably and
unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to the Loan Documents to which it is a party, 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 such
Person at its address set forth on Schedule 1.1(b) or at such other address
---------------
of which the Administrative Agent shall have been notified pursuant to
Section 10.2;
------------
(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 xxx 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.
SECTION 10.14 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 ANY LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 10.15 Non-Recourse Persons. The Lenders acknowledge that no
--------------------
Non-Recourse Person shall have any responsibility or liability for the
Obligations.
SECTION 10.16 Acknowledgments. The Borrower hereby acknowledges
---------------
that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of the Loan Documents;
-50-
(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 any of the Loan Documents, and the relationship between Administrative
Agent and 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 by any of the Loan Documents or
otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among the Borrower and the Lenders.
SECTION 10.17 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; 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 or any affiliate
of any Lender, (b) to any transferee or prospective transferee that agrees to
comply with the provisions of this Section 10.17, (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
under any Loan Document.
-51-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers as of the day and year first above
written.
EDISON MISSION ENERGY
By:__________________________________
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
CITICORP USA, INC.,
as Administrative Agent and Initial Lender
By:__________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
as Initial Lender
By:__________________________________
Name:
Title:
XXXXXX COMMERCIAL PAPER INC.,
as Initial Lender
By:__________________________________
Name:
Title:
SOCIETE GENERALE,
as Initial Lender
By:__________________________________
Name:
Title:
[Additional Lenders]
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ANNEX I
Pricing Grid
BASIS FOR PRICING XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 5
Applicable Margin 40.00 bps 50.00 bps 60.00 bps 80.00 bps 160.00 bps
(LIBO Rate Loans
Applicable Margin 0.00 bps 0.00 bps 0.00 bps 0.00 bps 0.00 bps
(Base Rate Loans)
Facility Fee (1) 10.00 bps 12.50 bps 15.00 bps 20.00 bps 40.00 bps
Utilization Fee
(0% less than or equal to 0.00 bps 0.00 bps 0.00 bps 0.00 bps 0.00 bps
n less than 33 1/3%)
(33 1/3% less than or equal 12.50 bps 12.50 bps 12.50 bps 12.50 bps 12.50 bps
to n less than 66 2/3%)
(66 2/3% less than or 12.50 bps 12.50 bps 12.50 bps 12.50 bps 12.50 bps
equal to n less than
or equal to 100%)
n=usage (2)
(1) Paid quarterly in arrears on each bank's commitment irrespective of usage.
(2) The percentage of total outstanding Loans as compared to the total
commitment amount.
bps = basis points per annum
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The Applicable Margin shall be determined at Level 1 so long as the
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Borrower's Debt Rating is A3 or better by Moody's and A- or better by
S&P.
The Applicable Margin shall be determined at Level 2 so long as the
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Borrower's Debt Rating is Baa1 by Moody's and BBB+ by S&P.
The Applicable Margin shall be determined at Level 3 so long as the
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Borrower's Debt Rating is Baa2 by Moody's and BBB by S&P.
The Applicable Margin shall be determined at Level 4 so long as the
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Borrower's Debt Rating is Baa3 by Moody's and BBB- by S&P.
The Applicable Margin shall be determined at Level 5 so long as the
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Borrower's Debt Rating is lower than Baa3 by Moody's and BBB- by S&P,
or if the Borrower has not received a final Debt Rating before June 1,
1999.
In the event that the Debt Rating established by Xxxxx'x is at a
different Level than the Debt Rating established by S&P, the lower
Debt Rating shall apply and the Level associated with such lower
rating shall be the Applicable Margin, except that, in the event that
the difference is greater than one rating Level, the average of the
two Debt Ratings by Moody's and by S&P shall apply to determine the
Applicable Margin.
Changes in the Level for determining the Applicable Margin resulting
from a change in rating(s) shall become effective on the day such
change in the ratings is announced by the relevant rating agency. In
the event that the Borrower does not maintain a Debt Rating with
both Moody's and S&P, the Borrower may, with the reasonable consent of
Required Lenders, select Duff & Xxxxxx, Fitch Investor Services Inc.
or another nationally recognized rating agency to replace Moody's or
S&P, and such replacement agency and the Debt Rating established by
such agency shall be used thereafter in the calculation of Applicable
Margin in the same fashion as the agency which no longer maintains
such Debt Rating. From the date which the Debt Rating of Moody's or
S&P ceases to be current until the date which is 120 days thereafter,
the Applicable Margin shall be determined by reference to the Debt
Ratings of Moody's and S&P most recently in effect. In the event that
such replacement agency has not established a Debt Rating within 120
days after the Debt Rating of Moody's or S&P ceases to be current,
then, until such time as such Debt Rating is established, the
Applicable Margin shall be determined at one Level lower than the
Level otherwise established based on the remaining Debt Rating.
