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EXHIBIT 4(d)-2
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
($120,000,000)
(364 DAY)
among
AVISTA CORPORATION,
THE BANKS NAMED XXXXXX,
XXXXXXX DOMINION (TEXAS), INC.,
BANK OF AMERICA, N.A.
and
THE BANK OF NEW YORK
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Dated as of June 26, 2000
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TABLE OF CONTENTS
Article Section Page
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I. DEFINITIONS
SECTION 1.01. Defined Terms 4
SECTION 1.02. Terms Generally 21
II. THE CREDITS
SECTION 2.01. Commitments 21
SECTION 2.02. Loans 22
SECTION 2.03. Notice of Revolving Borrowings 24
SECTION 2.04. Auction Bid Procedure 24
SECTION 2.05. Repayment of Loans; Evidence of Debt 28
SECTION 2.06. Letters of Credit 28
SECTION 2.07. Fees 33
SECTION 2.08. Interest on Loans 35
SECTION 2.09. Default Interest 35
SECTION 2.10. Alternate Rate of Interest 36
SECTION 2.11. Termination, Extension and Reduction of Commitments 36
SECTION 2.12. Prepayment 37
SECTION 2.13. Reserve Requirements; Change in Circumstances 38
SECTION 2.14. Change in Legality 39
SECTION 2.15. Indemnity 40
SECTION 2.16. Pro Rata Treatment 41
SECTION 2.17. Sharing of Setoffs 41
SECTION 2.18. Payments 42
SECTION 2.19. Taxes 43
SECTION 2.20. Termination or Assignment of Commitments Under
Certain Circumstances 46
III. REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers 47
SECTION 3.02. Authorization 47
SECTION 3.03. Enforceability 48
SECTION 3.04. Governmental Approvals 48
SECTION 3.05. Financial Statements 48
SECTION 3.06. No Material Adverse Change 49
SECTION 3.07. Litigation; Compliance with Laws 49
SECTION 3.08. Federal Reserve Regulations 49
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Article Section Page
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SECTION 3.09. Investment Company Act; Public Utility Holding Company Act 50
SECTION 3.10. Use of Proceeds 50
SECTION 3.11. No Material Misstatements 50
SECTION 3.12. Employee Benefit Plans 50
SECTION 3.13. Environmental and Safety Matters 51
SECTION 3.14. Significant Subsidiaries 51
IV. CONDITIONS OF LENDING
SECTION 4.01. All Borrowings 52
SECTION 4.02. First Borrowing 53
V. AFFIRMATIVE COVENANTS
SECTION 5.01. Existence; Businesses and Properties 55
SECTION 5.02. Insurance 56
SECTION 5.03. Taxes and Obligations 56
SECTION 5.04. Financial Statements, Reports, etc 57
SECTION 5.05. Litigation and Other Notices 58
SECTION 5.06. ERISA 58
SECTION 5.07. Maintaining Records; Access to Properties and Inspections 59
SECTION 5.08. Use of Proceeds and Letters of Credit 59
SECTION 5.09. Further Assurance 59
VI. NEGATIVE COVENANTS
SECTION 6.01. Liens 60
SECTION 6.02. Mergers, Consolidations and Acquisitions 64
SECTION 6.03. Disposition of Assets 65
SECTION 6.04. Consolidated Total Debt to
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Article Section Page
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Consolidated Total Capitalization Ratio 65
SECTION 6.05. Public Utility Regulatory Borrowing Limits 65
SECTION 6.06. Guarantees 65
VII. EVENTS OF DEFAULT
VIII. THE AGENT
IX. MISCELLANEOUS
SECTION 9.01. Notices 73
SECTION 9.02. Survival of Agreement 73
SECTION 9.03. Binding Effect 74
SECTION 9.04. Successors and Assigns 74
SECTION 9.05. Expenses; Indemnity 78
SECTION 9.06. Right of Setoff 80
SECTION 9.07. Applicable Law 80
SECTION 9.08. Waivers; Amendment 80
SECTION 9.09. Interest Rate Limitation 81
SECTION 9.10. Entire Agreement 82
SECTION 9.11. Waiver of Jury Trial 82
SECTION 9.12. Severability 82
SECTION 9.13. Counterparts 82
SECTION 9.14. Headings 83
SECTION 9.15. Jurisdiction; Consent to Service of Process 83
References
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Exhibit A Form of Note
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Administrative Questionnaire
Exhibit D-1 Form of Opinion of Counsel for the
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Borrower
Exhibit D-2 Form of Opinion of Special Counsel for the Borrower
Schedule 2.01 Banks
Schedule 3.14 Significant Subsidiaries
Schedule 4.02(b) Statutes and Orders of Governmental Authorities
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AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
dated as of June 26, 2000, among AVISTA CORPORATION, a
Washington corporation (herein called the "Borrower"), the
banks listed in Schedule 2.01 (the "Banks"), TORONTO
DOMINION (TEXAS), INC., as agent for the Banks (in such
capacity, the "Agent"), BANK OF AMERICA, N.A. (formerly
known as "Bank of America National Trust and Savings
Association"), as syndication agent (the "Syndication
Agent") and THE BANK OF NEW YORK, as documentation agent
(the "Documentation Agent").
Pursuant to the Pre-Restatement Credit Agreement (as defined
herein), certain banks have extended credit to, and/or issued letters of credit
on behalf of, the Borrower. The Borrower has requested that the Pre-Restatement
Credit Agreement be amended and restated in the form of this Agreement and that
the Banks extend credit to the Borrower in order to enable the Borrower to
borrow on a standby revolving credit basis and obtain letters of credit on and
after the date hereof, at any time prior to the Expiration Date (as defined
herein) in a principal amount not in excess of $108,825,000 at any time
outstanding (subject to a possible increase to $120,000,000, as provided in
Section 2.01(b) below). The proceeds of such borrowings and such letters of
credit are to be used for general corporate purposes. In consideration of the
mutual covenants and agreements contained herein, the parties agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
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"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit C.
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the
person specified.
"Agency Fees" shall have the meaning assigned to such term in
Section 2.07(c).
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the nearest 1/16 of 1%) equal to the greater
of (a) the Prime Rate (computed on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be) in effect on such
day and (b) the sum of (i) the Federal Funds Effective Rate in effect for such
day plus (ii) 1/2 of 1%. If for any reason the Agent shall have determined
(which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Federal Funds Effective Rate for any reason, the
Alternate Base Rate shall be determined without regard to clause (b) of the
first sentence of this definition until the circumstances giving rise to such
inability no longer exist.
"Applicable Percentage" shall mean, with respect to any Bank, the
percentage of the total Commitments represented by such Bank's Commitment. If
the Commitments have terminated or expired, the Applicable Percentage shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" shall mean on any date, with respect to any ABR
Loan or Eurodollar Revolving Loan, or with respect to the Commitment Fees, the
Letter of Credit fees or the Utilization Fees payable hereunder, as the case may
be, the applicable rate per annum set forth below under the caption "ABR
Spread," "Eurodollar Spread," "Commitment Fee", "Letter of Credit Participation
Fees" or "Utilization Fees", as the case may be, based upon the Ratings or the
Utilization Level, as the case may be:
(a) Loan Spreads, Commitment Fee and Letters of Credit
Participation Fees
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Letter of
Credit
ABR Eurodollar Commitment Participation
Ratings Spread Spread Fee Fees
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Xxxxx 0 0.00% .625% .125% .625%
A- or higher by
S&P; and A3 or
higher by
Xxxxx'x
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Xxxxx 0 0.00% .75% .15% .75%
BBB+ by S&P;
and Baa1 by
Xxxxx'x
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Xxxxx 0 0.00% .875% .20% .875%
BBB by S&P; and
Baa2 by Xxxxx'x
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Xxxxx 0 0.00% 1.00% .25% 1.00%
BBB- by S&P;
and Baa3 by
Xxxxx'x
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Xxxxx 0 .25% 1.25% .375% 1.25%
BB+ by S&P; and
Ba1 by Xxxxx'x
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Xxxxx 0 .50% 1.50% .50% 1.50%
Lower than BB+
by S&P; and
lower than Ba1
by Xxxxx'x
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For purposes of the foregoing, (i) if the Ratings in effect on any date fall in
different Levels, the Applicable Rate shall be determined on such date by
reference to the inferior (numerically higher) Level, unless the Ratings differ
by more than one Level, in which case the applicable Level shall be the Level
next below the superior (numerically lower) of the two; (ii) if either Xxxxx'x
or S&P shall not have in effect a Rating (other than because such rating agency
shall no longer be in the business of rating corporate debt obligations), then
such rating agency
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will be deemed to have established a Rating in Level 5; and (iii) if any
rating established or deemed to have been established by Xxxxx'x or S&P shall be
changed (other than as a result of a change in the rating system of either
Xxxxx'x or S&P), such change shall be effective as of the day after the date on
which such change is first announced by the rating agency making such change.
Each change in the Applicable Rate shall apply during the period commencing on
the effective date of such change and ending on the date immediately preceding
the effective date of the next such change. If the rating system of either
Xxxxx'x or S&P shall change, or if either such rating agency shall cease to be
in the business of rating corporate debt obligations, the Borrower and the Banks
shall negotiate in good faith to amend the references to specific ratings in
this definition to reflect such changed rating system or the non- availability
of ratings from such rating agency.
(b) Utilization Fees
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Utilization Level Utilization Fee
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Level 1 .15%
>.33 and less than/equal to .50
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Xxxxx 0 .30%
>.50 and less than/equal to .75
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Xxxxx 0 .50%
>.75
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"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Bank and an assignee, and accepted by the Agent and
the Borrower, in the form of Exhibit B or such other form as shall be approved
by the Agent.
"Auction Bid" shall mean an offer by a Bank to
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make an Auction Loan in accordance with Section 2.04.
"Auction Bid Rate" shall mean, with respect to any Auction Bid,
the Margin for Eurodollar Auction Loans, the Fixed Rate for Fixed Rate Loans or
the Delayed Fixed Rate for Delayed Fixed Rate Loans, as applicable, offered by
the Bank in making such Auction Bid.
"Auction Bid Request" shall mean a request by the Borrower for
Auction Bids in accordance with Section 2.04.
"Auction Facility" shall mean the facility described in Section
2.04.
"Auction Loan" shall mean a Loan made pursuant to Section 2.04.
"Availability Period" shall mean the period from and including the
Effective Date to but excluding the earlier of the Expiration Date and the date
of the termination of the Commitments.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Borrowing" shall mean (a) a group of Revolving Loans of the same
Type, made, converted or continued on the same date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in effect or (b) an
Auction Loan or group of Auction Loans of the same Type made on the same date
and as to which a single Interest Period is in effect.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City.
"Capital Lease Obligations" of any person shall mean the
obligations of such person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time
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shall be the capitalized amount thereof at such time determined in accordance
with GAAP.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof),
of shares representing more than 30% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Borrower; or (b)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Borrower by Persons who were neither (i) nominated by the board
of directors of the Borrower nor (ii) appointed by directors so nominated;
provided, that no event described in clause (a) or clause (b) shall constitute a
"Change in Control" if the senior secured long-term debt rating of the Borrower
shall be at least BBB or higher by S&P and Baa2 or higher by Xxxxx'x immediately
after giving effect to the transaction that would otherwise constitute a Change
in Control.
"Class", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are Revolving
Loans or Auction Loans.
"Closing Date" shall mean the date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as the same
may be amended from time to time.
"Commitment" shall mean, with respect to each Bank, the commitment
of such Bank to make Revolving Loans and to acquire participations in Letters of
Credit hereunder as set forth in Sections 2.01 and 2.06, as the same may be
reduced from time to time pursuant to Section 2.11.
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.07(a).
"Consolidated Total Capitalization" on any date means the sum,
without duplication, of the following with respect to the Borrower and its
consolidated subsidiaries: (a) total capitalization as of such date, as
determined in accordance with GAAP, (b) the current portion of liabilities which
as of such date would be classified in whole or part
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as long-term debt in accordance with GAAP (it being understood that the
noncurrent portion of such liabilities is included in the total capitalization
referred to in clause (a)), (c) all obligations as lessee which, in accordance
with GAAP, are capitalized as liabilities (including the current portion
thereof), and (d) all other liabilities which would be classified as short-term
debt in accordance with GAAP.
"Consolidated Total Debt" on any date means the sum, without
duplication, of the following with respect to the Borrower and its consolidated
subsidiaries: (a) all liabilities which as of such date would be classified in
whole or in part as long-term debt in accordance with GAAP (including the
current portion thereof), (b) all obligations as lessee which, in accordance
with GAAP, are capitalized as liabilities (including the current portion
thereof), (c) all other liabilities which would be classified as short-term debt
in accordance with GAAP, and (d) all Guarantees of or by the Borrower.
"Control" shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Default" shall mean any event or condition which upon notice,
lapse of time or both would constitute an Event of Default.
"Delayed Fixed Rate" shall mean, with respect to any Auction Loan
(other than a Eurodollar Auction Loan or a Fixed Rate Loan), the fixed rate of
interest per annum specified by the Bank in making such Auction Loan in its
related Auction Bid.
"Delayed Fixed Rate Loan" shall mean an Auction Loan bearing
interest at a Delayed Fixed Rate for which an Auction Bid Request is made two
Business Days before the proposed date of borrowing.
"dollars" or "$" shall mean lawful money of the United States of
America.
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"Environmental Law" shall mean any and all applicable present and
future treaties, laws, regulations, enforceable requirements, binding
determinations, orders, decrees, judgments, injunctions, permits, approvals,
authorizations, licenses, permissions, notices or binding agreements issued,
promulgated or entered by any Governmental Authority, relating to the
environment, preservation or reclamation of natural resources, or to the
management, release or threatened release of contaminants or noxious odor,
including the Hazardous Materials Transportation Act, Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, Solid Waste Disposal
Act, as amended by the Resource Conservation and Recovery Act of 1976 and
Hazardous and Solid Waste Amendments of 1984, Federal Water Pollution Control
Act, as amended by the Clean Water Act of 1977, Clean Air Act of 1970, as
amended, Toxic Substances Control Act of 1976, Occupational Safety and Health
Act of 1970, as amended, Emergency Planning and Community Right-to-Know Act of
1986, Safe Drinking Water Act of 1974, as amended, and any similar or
implementing state law, and all amendments or regulations promulgated
thereunder.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that is a member of a group of which the Borrower is a member and
which is treated as a single employer under Section 414 of the Code.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Eurodollar Rate.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate in accordance with the provisions
of Article II.
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"Eurodollar Rate" shall mean, with respect to any Eurodollar Loan
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to the product of (i) the arithmetic
average of rates at which dollar deposits approximately equal to the principal
amount of the portion of such Eurodollar Loan to be made by The Toronto-Dominion
Bank, and for a maturity equal to the applicable Interest Period, are offered to
The Toronto-Dominion Bank for Eurodollars at approximately 10:00 a.m., New York
City time, two Business Days prior to the commencement of such Interest Period
and (ii) Statutory Reserves. In the event that such rate is not available at
such time for any reason, then the "Eurodollar Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Agent in immediately available
funds in the London interbank market at approximately 10:00 a.m., New York City
time, two Business Days prior to the commencement of such Interest Period.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Expiration Date" shall mean June 25, 2001.
"Federal Funds Effective Rate" shall mean, for any day, the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
reported on such Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so reported for any day that is a Business Day, the average of
the quotations for the day of such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by it.
"Fees" shall mean the Commitment Fee and the Agency Fees.
"Financial Officer" of any corporation shall mean the chief
financial officer or Treasurer of such corporation.
"First Mortgage" shall mean the Mortgage and Deed of Trust dated
as of June 1, 1939, made by the Borrower in
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favor of Citibank, N.A., as successor Trustee, as the same has been amended,
modified or supplemented to date and as the same may be further amended,
modified or supplemented from time to time hereafter.
"Fixed Rate" shall mean, with respect to any Auction Loan (other
than a Eurodollar Auction Loan or a Delayed Fixed Rate Loan), the fixed rate of
interest per annum specified by the Bank making such Auction Loan in its related
Auction Bid.
"Fixed Rate Loan" shall mean an Auction Loan bearing interest at a
Fixed Rate for which an Auction Bid Request is made on the day of the proposed
borrowing.
"GAAP" shall mean generally accepted accounting principles,
applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantee" of or by any person shall mean any obligation,
contingent or otherwise, of such person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of such person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (b) to purchase property, securities or
services for the purpose of assuring the owner of such Indebtedness of the
payment of such Indebtedness or (c) to maintain working capital, equity capital
or other financial statement condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such Indebtedness; provided, however, that
the term Guarantee shall not include endorsements for collection or deposit, in
either case in the ordinary course of business.
"Indebtedness" of any person shall mean, without duplication, (a)
all obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
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debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid, (d) all obligations of such
person under conditional sale or other title retention agreements relating to
property or assets purchased by such person, (e) all obligations of such person
issued or assumed as the deferred purchase price of property or services (other
than trade payables incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such person, whether or not the obligations
secured thereby have been assumed, but limited, if such obligations are without
recourse to such person, to the lesser of the principal amount of such
Indebtedness or the fair market value of such property, (g) all Guarantees by
such person of Indebtedness of others, (h) all Capital Lease Obligations of such
person, (i) all obligations of such person in respect of interest rate
protection agreements, foreign currency exchange agreements or other interest or
exchange rate hedging arrangements (the amount of any such obligation to be the
amount that would be payable upon the acceleration, termination or liquidation
thereof) and (j) all obligations of such person as an account party in respect
of letters of credit and bankers' acceptances. The Indebtedness of any person
shall include the Indebtedness of any partnership in which such person is a
general partner.
"Interest Payment Date" shall mean, with respect to any Loan, the
last day of the Interest Period applicable to the Borrowing of which such Loan
is a part and, in the case of a Eurodollar Borrowing with an Interest Period of
more than three months' duration, each day that would have been an Interest
Payment Date had successive Interest Periods of three months' duration been
applicable to such Borrowing and, in addition, the date of any refinancing or
conversion of such Borrowing with or to a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day (or, if there is no numerically corresponding day,
on the last day) in the calendar month that is 1, 2, 3 or 6
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months thereafter, as the Borrower may elect, (b) as to any ABR Borrowing, the
period commencing on the date of such Borrowing and ending on the earliest of
(i) the next succeeding March 31, June 30, September 30 or December 31, (ii) the
Expiration Date, and (iii) the date such Borrowing shall be repaid or prepaid in
accordance with Section 2.12 and (c) with respect to any Fixed Rate Borrowing or
Delayed Fixed Rate Borrowing, the period (which shall not be less than 7 days or
more than 360 days) commencing on the date of such Borrowing and ending on the
date specified in the applicable Auction Bid Request; provided, however, that if
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurodollar Borrowing only, such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day. Interest shall accrue from and including the first
day of an Interest Period to but excluding the last day of such Interest Period.
"Issuing Bank" shall mean The Toronto-Dominion Bank in its
capacity as the issuer of Letters of Credit hereunder, and its successors in
such capacity as provided in Section 2.06(i). The Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by Affiliates
of the Issuing Bank, in which case the term "Issuing Bank" shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate.
"LC Disbursement" shall mean a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Exposure" shall mean, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at such time plus
(b) the aggregate amount of all LC Disbursements that have not yet been
reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any
Bank at any time shall be its Applicable Percentage of the total LC Exposure at
such time.
"Letter of Credit" shall mean any letter of credit issued pursuant
to this Agreement.
"Lien" shall mean, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, encumbrance, charge or security interest in or on
such asset, (b) the interest of a vendor or a lessor under any conditional sale
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agreement, capital lease or title retention agreement relating to such asset and
(c) in the case of securities, any purchase option, call or similar right of a
third party with respect to such securities.
"Loans" shall mean loans made by the Banks to the Borrower
pursuant to this Agreement.
"Loan Documents" shall mean this Agreement and any Notes and any
Letter of Credit applications referred to in Section 2.06(a).
"Margin" shall mean, with respect to any Auction Loan bearing
interest at a rate based on the Eurodollar Rate, the marginal rate of interest,
if any, to be added to or subtracted from the Eurodollar Rate to determine the
rate of interest applicable to such Loan, as specified by the Bank making such
Loan in its related Auction Bid.
"Margin Stock" shall have the meaning given such term under
Regulation U.
"Material Adverse Effect" shall mean an effect on the business,
assets, operations or financial condition of the Borrower and the Subsidiaries
taken as a whole which could reasonably be expected to have a material adverse
effect on the creditworthiness of the Borrower.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Notes" shall mean any promissory notes of the Borrower,
substantially in the form of Exhibit A, evidencing Loans, as may be delivered
pursuant to Section 2.05.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
"person" shall mean a corporation, association, partnership,
trust, organization, business, individual or government or governmental agency
or political subdivision thereof.
"Plan" shall mean any pension plan subject to the provisions of
Title IV of ERISA or Section 412 or the Code which is maintained for employees
of the Borrower or any
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ERISA Affiliate.
"Pre-Restatement Credit Agreement" shall mean the Revolving Credit
Agreement (3 Year) among the Borrower, the banks named therein, Toronto Dominion
(Texas), Inc., Bank of America National Trust and Savings Association and The
Bank of New York, dated as of June 30, 1998, and as in effect prior to its
amendment and restatement hereby.
"Prime Rate" shall mean the rate of interest per annum adopted
from time to time by The Toronto-Dominion Bank at its principal office in New
York City as its prime rate. For purposes of this Agreement, any change in the
Alternate Base Rate due to a change in the Prime Rate shall be effective on the
date such change in the Prime Rate is adopted.
"Ratings" shall refer to the ratings of Moody's and S&P applicable
to the Borrower's senior unsecured long-term debt obligations.
"Register" shall have the meaning given to such term in Section
9.04(d).
"Regulation D" shall mean Regulation D of the Board as from time
to time in effect and all official rulings and interpretations thereunder or
thereof and shall include any successor or other regulation or official
interpretation of the Board relating to reserve requirements applicable to
member banks of the Federal Reserve System.
"Regulation U" shall mean Regulation U of the Board as from time
to time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time
to time in effect and all official rulings and interpretations thereunder or
thereof.
"Related Parties" shall mean, with respect to any specified
Person, such Person's Affiliates and the respective directors, officers,
employees, agents and advisors of such Person and such Person's Affiliates.
"Reportable Event" shall mean any reportable event
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as defined in Section 4043(b) of ERISA or the regulations issued thereunder with
respect to a Plan (other than a Plan maintained by an ERISA Affiliate which is
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section
414 of the Code).
"Required Banks" shall mean, at any time, Banks having Revolving
Credit Exposures representing at least 66-2/3% of the aggregate Revolving
Exposures or, if there shall be no Revolving Credit Exposure, Banks having
Commitments representing at least 66-2/3% of the aggregate Commitments. For
purposes of declaring the Loans to be due and payable pursuant to Article VII
and of demanding the deposit of cash collateral pursuant to Section 2.06(i), and
for all purposes after the Loans become due and payable pursuant to Article VII
or the Commitments expire or terminate, the outstanding Auction Loans of the
Banks shall be included in their respective Revolving Credit Exposure in
determining the Required Banks.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Revolving Credit Exposure" shall mean, with respect to any Bank
at any time, the sum of the outstanding principal amount of such Bank's
Revolving Loans and its LC Exposure at such time.
"Revolving Loan" shall mean a Loan made pursuant to Section 2.03.
"S&P" shall mean Standard & Poor's Ratings Services.
"Significant Subsidiary" shall mean a Subsidiary meeting any one
of the following conditions: (a) the investments in and advances to such
Subsidiary by the Borrower and the other Subsidiaries, if any, as at the end of
the Borrower's latest fiscal quarter exceeded 10% of the total assets of the
Borrower and its Subsidiaries at such date, computed and consolidated in
accordance with GAAP; or (b) the Borrower's and the other Subsidiaries'
proportionate share of the total assets (after intercompany eliminations) of
such Subsidiary as at the end of the Borrower's latest
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fiscal quarter exceeded 10% of the total assets of the Borrower and its
Subsidiaries at such date, computed and consolidated in accordance with GAAP; or
(c) the equity in the income from continuing operations before income taxes,
extraordinary items and cumulative effect of a change in accounting principle of
such Subsidiary for the period of four consecutive fiscal quarters ending at the
end of the Borrower's latest fiscal quarter exceeded 10% of such income of the
Borrower and its Subsidiaries for such period, computed and consolidated in
accordance with GAAP; or (d) such Subsidiary is the parent of one or more
Subsidiaries and, together with such Subsidiaries would, if considered in the
aggregate, constitute a Significant Subsidiary.
"Statutory Reserves" shall mean a fraction (expressed as a
decimal) the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including, without limitation, any marginal, special, emergency or supplemental
reserves) with respect to Euro dollar funding (including with respect to
Eurocurrency Liabilities as defined in Regulation D) in an amount approximately
equal to the respective Eurodollar Loan and with a term approximately equal to
the Interest Period for such Eurodollar Loan expressed as a decimal established
by the Board or by any other United States banking authority to which the Agent
is subject. Such reserve percentages shall include, without limitation, those
imposed under Regula tion D. Statutory Reserves shall be adjusted automatically
on and as of the effective date of any change in any reserve percentage.
"Structuring Fee" shall have the meaning assigned to such term in
Section 2.07(c).
"subsidiary" shall mean, for any person (the "Parent"), any
corporation, partnership or other entity of which securities or other ownership
interests having by the terms thereof ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions of such
corporation, partnership or other entity (irrespective of whether or not at the
time securities or other ownership interests of any other class or classes of
such corporation, partnership or other entity shall have or
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might have voting power by reason of the happening of any contingency) are at
the time directly or indirectly owned or controlled by the Parent or one or more
of its subsidiaries or by the Parent and one or more of its subsidiaries.
"Subsidiary" shall mean a subsidiary of the Borrower.
A "Subsidiary Event" shall mean the following; provided, however,
that a Subsidiary Event shall not be deemed to have occurred if the Banks have
previously consented thereto:
(a) any Significant Subsidiary shall fail to observe or perform
any covenant, condition or agreement contained in Section 5.01(a) as if
such section applied to such Significant Subsidiary, with all references
therein to the Borrower being deemed references to such Significant
Subsidiary;
(b) any Significant Subsidiary shall fail to observe or perform
any covenant, condition or agreement in Sections 5.01(b), 5.02, 5.03 or
5.07 as if such sections applied to such Significant Subsidiary, with all
references therein to the Borrower being deemed references to such
Significant Subsidiary, and such default shall continue unremedied for a
period of 30 days after notice thereof from the Agent or any Bank to the
Borrower;
(c) any Significant Subsidiary shall:
(i) merge into or consolidate with any other person, or
permit any other person to merge into or consolidate with it, or
purchase, lease or otherwise acquire (in one transaction or a
series of transactions) all or substantially all of the assets of
any other person (whether directly by purchase, lease or other
acquisition of all or substantially all of the assets of such
person or indirectly by purchase or other acquisition of all or
substantially all of the capital stock of such other person) other
than acquisitions in the ordinary course of such Significant
Subsidiary's business, except that if, at the time thereof and
immediately after giving effect thereto no Event
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of Default or Default shall have occurred and be continuing, then
(A) such Significant Subsidiary may (i) merge with or into, or
consolidate with, any Subsidiary or (ii) merge with or into, or
consolidate with, the Borrower in a transaction in which the
Borrower is the surviving corporation, (B) such Significant
Subsidiary may purchase, lease or otherwise acquire from any
Subsidiary all or substantially all of its assets and may purchase
or otherwise acquire all or substantially all of the capital stock
of any person who immediately thereafter is a Subsidiary, (C) such
Significant Subsidiary may merge with or into, or consolidate
with, any other person so long as the assets of such person at the
time of such consolidation or merger, do not exceed 10% of the
total assets of the Borrower and its Subsidiaries, after giving
effect to such merger or consolidation, computed and consolidated
in accordance with GAAP consistently applied, and (D) such
Significant Subsidiary may purchase, lease or otherwise acquire
any or all of the assets of any other person (and may purchase or
otherwise acquire the capital stock of any other person) so long
as the assets being purchased, leased or acquired (or the
Significant Subsidiary's proportionate share of the assets of the
person whose capital stock is being acquired) do not exceed 10% of
the total assets of the Borrower and its Subsidiaries, after
giving effect to such acquisition, computed and consolidated in
accordance with GAAP consistently applied, or
(ii) sell, lease, transfer, assign or other wise dispose of
(in one transaction or in a series of transactions), in any fiscal
year, assets (whether now owned or hereafter acquired) which,
together with the amount of all sales, leases, transfers,
assignments or dispositions by the Borrower permitted under
Section 6.03 (other than sales, leases, transfers, assignments or
other dispositions permitted under clauses (i) through (iv) of
such Section), are in excess of 10% of the assets of the Borrower
and its Subsidiaries as of the end of the most recent fiscal year,
computed
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and consolidated in accordance with GAAP consistently applied,
except (A) a Significant Subsidiary may sell, lease, transfer,
assign or otherwise dispose of, in any fiscal year, assets in the
ordinary course of business which, together with the amount of all
sales, leases, transfers, assignments or dispositions in the
ordinary course permitted under Section 6.03(i), do not exceed 5%
of the assets of the Borrower and its Subsidiaries as of the end
of the most recent fiscal year, computed and consolidated in
accordance with GAAP consistently applied, (B) to the extent
permitted in clause (c)(i) above and (C) any Significant
Subsidiary may sell, lease, transfer, assign or otherwise dispose
of, or create, incur, assume or permit to exist Liens on,
receivables and related properties or interests therein;
provided, however, that, notwithstanding anything in this clause (c) to the
contrary, a Subsidiary Event shall not be deemed to have occurred and shall not
constitute an Event of Default under paragraph (k) of Article VII if, after
giving effect to the consummation of any transaction contemplated by clause
(c)(i) or (c)(ii) hereof, such Significant Subsidiary shall have or shall be
deemed to have a ratio of total long-term Indebtedness to total stockholders'
equity equal to or less than 1.5 to 1.0.
"Transactions" shall have the meaning assigned to such term in
Section 3.02.
"Type", when used in respect of any Loan or Borrowing, shall refer
to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, "Rate" shall mean,
in the case of a Revolving Loan or Borrowing, the Eurodollar Rate and the
Alternate Base Rate or, in the case of an Auction Loan or Borrowing, the
Eurodollar Rate, Fixed Rate or Delayed Fixed Rate.
"Utilization Fee" shall have the meaning assigned to such term in
Section 2.07.
"Utilization Level" shall mean the ratio of the outstanding
principal amount of Loans and the LC Exposure to
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the total Commitments.
SECTION 1.02. Terms Generally. The definitions in Section 1.01
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided,
however, that, for purposes of determining compliance with any covenant set
forth in Article VI, such terms shall be construed in accordance with GAAP as in
effect on the date of this Agreement applied on a basis consistent with the
application used in preparing the Borrower's audited financial statements
referred to in Section 3.05.
ARTICLE II. THE CREDITS
SECTION 2.01. (a) Commitments. Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, each Bank
agrees, severally and not jointly, to make Revolving Loans to the Borrower, at
any time and from time to time on or after the date of this Agreement, and until
the earlier of the Expiration Date and the termination of the Commitment of such
Bank in accordance with the terms hereof, in an aggregate principal amount at
any time outstanding that will not result in (i) the Revolving Credit Exposure
of any Bank exceeding the Commitment set forth opposite its name in Schedule
2.01 hereto, as the same may be reduced from time to time pursuant to Section
2.11 or (ii) the sum of the total Revolving Credit Exposure plus the aggregate
principal amount of outstanding Auction Loans exceeding the total Commitments.
Within the limits set forth in the preceding sentence, the
Borrower may borrow, pay or prepay and
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reborrow Revolving Loans on or after the date of this Agreement and prior to the
Expiration Date, subject to the terms, conditions and limitations set forth
herein.
(b) On not more than two occasions the Borrower may by written
notice to the Administrative Agent cause New Banks (as defined below) to assume
Commitments by an aggregate amount not in excess of $11,175,000 in the aggregate
(the "New Commitments"). Each such notice shall specify (i) the date (each a
"Transition Date") on which the Borrower proposes that New Commitments shall
become effective, which shall be not less than ten Business Days
after the date on which such notice is delivered to the Administrative Agent and
(ii) the identity of each person that has agreed to assume any portion of such
New Commitments (each a "New Bank") and the amount of such New Commitments
allocated to such New Bank. Subject only to there not existing any Default or
Event of Default on such Transition Date before or after giving effect to such
New Commitments, such New Commitments shall become effective as of such
Transition Date and, if any Revolving Loans are outstanding on such Transition
Date, each Bank shall assign to the New Banks, and each of the New Banks shall
purchase from the Banks, at the principal amount thereof, such interests in the
Revolving Loans outstanding on such Transition Date as shall be necessary in
order that, after giving effect to all such assignments and purchases, such
Revolving Loans will be held by Banks and New Banks ratably in accordance with
their Commitments after giving effect to the addition of such New Commitments to
the Commitments. The Administrative Agent shall notify the Banks promptly upon
receipt of the Borrower's notice thereof of each Transition Date and in respect
thereof the New Commitments, the New Banks and, in the case of each notice to
any Bank, the respective interests in such Bank's Revolving Loans subject to the
assignments contemplated by the immediately preceding sentence. In the event
that any Bank shall incur any breakage cost as a result of making any such
assignment, or that any New Bank shall incur any reverse breakage cost as a
result of taking any such assignment, the Borrower shall indemnify it for such
cost, calculated as contemplated by Section 2.15 in the case of breakage costs
and calculated based upon the difference between the Eurodollar Rate applicable
to each assigned Revolving Loan and the cost to the New Bank of funding its
assigned interests in the case
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of reverse breakage costs. It is expressly understood that no Bank shall have
any obligation to agree to an increase in the amount of the Commitment pursuant
to this Section.
SECTION 2.02. Loans. (a) Each Revolving Loan shall be made as part
of a Borrowing consisting of Revolving Loans made by the Banks ratably in
accordance with their Commitments. Each Auction Loan shall be made in accordance
with the procedures set forth in Section 2.04. The failure of any Bank to make
any Loan required to be made hereunder shall not in itself relieve any other
Bank of its obligation to lend hereunder (it being understood, however, that no
Bank shall be responsible for the failure of any other Bank to make any Loan
required to be made by such other Bank). The Loans comprising each Borrowing
shall be in an aggregate principal amount which is an integral multiple of
$1,000,000.
(b) Subject to Section 2.10, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans, as the Borrower may request
pursuant to Section 2.03, and (ii) each Auction Borrowing shall be comprised
entirely of Eurodollar Loans, Fixed Rate Loans or Delayed Fixed Rate Loans as
the Borrower may request in accordance with Section 2.04. Each Bank may at its
option fulfill its Commitment with respect to any Eurodollar Loan by causing any
domestic or foreign branch or Affiliate of such Bank to make such Loan; provided
that any exercise of such option shall not affect the obligation of the Borrower
to repay such Loan in accordance with the terms of this Agreement or any
applicable Note. Borrowings of more than one Type or Class may be outstanding at
the same time; provided, however, that the Borrower shall not be entitled to
request any Borrowing which, if made, would result in an aggregate of more than
five separate Eurodollar Loans of any Bank being outstanding hereunder at any
one time. For purposes of the foregoing, Loans having different Interest
Periods, regardless of whether they commence on the same date, shall be
considered separate Loans.
(c) Subject to paragraph (e) below, each Bank shall make a
Revolving Loan in the amount of its pro rata portion, as determined under
Section 2.16, or, if an Auction Loan, in the relevant amount as determined under
Section 2.04, of each Borrowing hereunder on the proposed date
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thereof by wire transfer of immediately available funds to the Agent in Houston,
Texas, not later than 2:00 p.m., New York City time, and the Agent shall by 3:00
p.m., New York City time, make available to the Borrower in immediately
available funds the amounts so received (i) by wire transfer for credit to the
account of the Borrower with Bank of America, N.A., Account Number 12332-29152;
ABA # 12100358, or (ii) as otherwise specified by the Borrower in its notice of
Borrowing or, if a Borrowing shall not occur on such date because any condition
precedent herein specified shall not have been met, return the amounts so
received to the respective Banks. Unless the Agent shall have received notice
from a Bank prior to the date of any Borrowing that such Bank will not make
available to the Agent such Bank's portion of such Borrowing, the Agent may
assume that such Bank has made such portion available to the Agent on the date
of such Borrowing in accordance with this paragraph (c) and the Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have made
such portion available to the Agent, such Bank and the Borrower severally agree
to repay to the Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available
to the Borrower until the date such amount is repaid to the Agent at (i) in the
case of the Borrower the interest rate applicable at the time to the Loans
comprising such Borrowing and (ii) in the case of such Bank, the Federal Funds
Effective Rate. If such Bank shall repay to the Agent such corresponding amount,
such amount shall constitute such Bank's Loan as part of such Borrowing for
purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Expiration Date.
(e) The Borrower may refinance all or any part of any Borrowing
with a Borrowing of the same or a different Type or Class, subject to the
conditions and limitations set forth in this Agreement. Any Borrowing or part
thereof so refinanced shall be deemed to be repaid or prepaid in accordance with
Section 2.05 or 2.12, as applicable, with the proceeds of a new
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Borrowing, and the proceeds of the new Borrowing, to the extent they do not
exceed the principal amount of the Borrowing being refinanced, shall not be paid
by the Banks to the Agent or by the Agent to the Borrower pursuant to paragraph
(c) above.
SECTION 2.03. Notice of Revolving Borrowings. To request a
Revolving Borrowing, the Borrower shall give the Agent written or telecopy
notice (or telephone notice promptly confirmed in writing or by telecopy) (a) in
the case of a Eurodollar Borrowing, not later than 10:00 a.m., New York City
time, three Business Days before a proposed borrowing and (b) in the case of an
ABR Borrowing, not later than 12:00 (noon), New York City time, the day of a
proposed borrowing. Such notice shall be irrevocable and shall in each case
refer to this Agreement and specify (i) whether the Borrowing then being
requested is to be a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of
such Borrowing (which shall be a Business Day) and the amount thereof; and (iii)
if such Borrowing is to be a Eurodollar Borrowing, the Interest Period with
respect thereto. If no election as to the Type of Borrowing is specified in any
such notice, then the requested Borrowing shall be an ABR Borrowing. If no
Interest Period with respect to any Eurodollar Borrowing is specified in any
such notice, then the Borrower shall be deemed to have selected an Interest
Period of one month's duration. If the Borrower shall not have given notice in
accordance with this Section 2.03 of its election to refinance a Borrowing prior
to the end of the Interest Period in effect for such Borrowing, then the
Borrower shall (unless such Borrowing is repaid at the end of such Interest
Period) be deemed to have given notice of an election to refinance such
Borrowing with an ABR Borrowing. The Agent shall promptly advise the Banks of
any notice given pursuant to this Section 2.03 and of each Bank's portion of the
requested Borrowing.
SECTION 2.04. Auction Bid Procedure. (a) Subject to the terms and
conditions set forth herein, from time to time during the Availability Period
the Borrower may request Auction Bids and may (but shall not have any obligation
to) accept Auction Bids and borrow Auction Loans; provided that the sum of the
total Revolving Credit Exposure plus the aggregate principal amount of
outstanding Auction Loans at any time shall not exceed the total Commitments.
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To request Auction Bids, the Borrower shall notify the Agent of such request by
telephone, in the case of a Eurodollar Borrowing, not later than 1:00 p.m., New
York City time, four Business Days before the date of the proposed Borrowing, in
the case of a Fixed Rate Borrowing, not later than 1:00 p.m., New York City
time, one Business Day before the date of the proposed Borrowing, or, in the
case of a Delayed Fixed Rate Borrowing, not later than 2:00 p.m., New York City
time, two Business Days before the date for the proposed Borrowing; provided
that the Borrower may submit up to (but not more than) (i) 1 Eurodollar Auction
Bid Request and (ii) 1 Fixed Rate Auction Bid Request or 1 Delayed Fixed Rate
Auction Bid Request on the same day. Each such telephonic Auction Bid Request
shall be confirmed promptly by hand delivery or telecopy to the Agent of a
written Auction Bid Request in a form approved by the Agent and signed by the
Borrower. Each such telephonic and written Auction Bid Request shall specify the
following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing, a Fixed
Rate Borrowing, or a Delayed Fixed Rate Borrowing;
(iv) the Interest Period (or Interest Periods) to be applicable to such
Borrowing, which shall be a period contemplated by the definition of the
term "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.02.
(b) Following receipt of an Auction Bid Request in accordance with
this Section, the Agent shall notify the Banks of the details thereof by
telecopy, inviting the Banks to submit Auction Bids in the case of a Eurodollar
Auction Bid Request, no later than 2:00 p.m., New York City time, four Business
Days before the proposed date
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of the Borrowing, in the case of a Fixed Rate Auction Bid Request, no later than
2:00 p.m., one Business Day before the proposed date of the Borrowing, and, in
the case of a Delayed Fixed Rate Bid Request, not later than 3:00 p.m., New York
City time, two Business Days before the proposed date of the Borrowing.
(c) Each Bank may (but shall not have any obligation to) make one
or more Auction Bids to the Borrower in response to an Auction Bid Request. Each
Auction Bid by a Bank must be in a form approved by the Agent and must be
received by the Agent by telecopy, in the case of a Eurodollar Auction
Borrowing, not later than 12:00 (noon), New York City time, three Business Days
before the proposed date of such Auction Borrowing, in the case of a Fixed Rate
Borrowing, not later than 10:30 a.m., New York City time, on the proposed date
of such Auction Borrowing, and, in the case of a Delayed Fixed Rate Bid, not
later than 12:00 (noon), New York City time, one Business Day before the
proposed date of such Auction Borrowing. Auction Bids that do not conform
substantially to the form approved by the Agent may be rejected by the Agent,
and the Agent shall notify the applicable Bank as promptly as practicable. Each
Auction Bid shall specify (i) the principal amount (which shall be an integral
multiple of $1,000,000 and which may equal the entire principal amount of the
Auction Borrowing requested by the Borrower) of the Auction Loan or Loans that
the Bank is willing to make, (ii) the Auction Bid Rate or Rates at which the
Bank is prepared to make such Loan or Loans (expressed as a percentage rate per
annum in the form of a decimal to no more than four decimal places) and (iii)
the Interest Period applicable to each such Loan and the last day thereof in
accordance with the Auction Bid Request.
(d) The Agent shall promptly notify the Borrower by telecopy of
the Auction Bid Rate and the principal amount specified in each Auction Bid and
the identity of the Bank that shall have made such Auction Bid.
(e) Subject only to the provisions of this paragraph, the Borrower
may accept or reject any Auction Bid. The Borrower shall notify the Agent by
telephone, confirmed by telecopy in a form approved by the Agent, whether and to
what extent it has decided to accept or
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reject each Auction Bid, in the case of a Eurodollar Auction Borrowing, not
later than 2:00 p.m., New York City time, three Business Days before the date of
the proposed Auction Borrowing, in the case of a Fixed Rate Borrowing, not later
than 11:30 a.m., New York City time, on the proposed date of the Auction
Borrowing, and, in the case of a Delayed Fixed Rate Borrowing, not later than
1:00 p.m., New York City time, one Business day before the date of the proposed
Auction Borrowing; provided that (i) the failure of the Borrower to give such
notice shall be deemed to be a rejection of each Auction Bid, (ii) the Borrower
shall not accept an Auction Bid made at a particular Auction Bid Rate if the
Borrower rejects an Auction Bid made at a lower Auction Bid Rate, (iii) the
aggregate amount of the Auction Bids accepted by the Borrower shall not exceed
the aggregate amount of the requested Auction Borrowing specified in the related
Auction Bid Request, (iv) to the extent necessary to comply with clause (iii)
above, the Borrower may accept Auction Bids at the same Auction Bid Rate in
part, which acceptance, in the case of multiple Auction Bids at such Auction Bid
Rate, shall be made pro rata in accordance with the amount of each such Auction
Bid, and (v) except pursuant to clause (iv) above, no Auction Bid shall be
accepted for an Auction Loan unless such Auction Loan is in an integral multiple
of $1,000,000. A notice given by the Borrower pursuant to this paragraph shall
be irrevocable.
(f) The Agent shall notify each bidding Bank by telephone and
telecopy whether or not its Auction Bid has been accepted (and, if so, the
amount and Auction Bid Rate so accepted) in the case of Eurodollar Auction
Loans, by 3:00 p.m., New York City time, three Business Days before the
borrowing date, in the case of Fixed Rate Loans, by 12:00 (noon), New York City
time, on the borrowing date, and, in the case of Delayed Fixed Rate Loans, by
3:00 p.m., New York City time, one Business Day before the Borrowing Date. Each
successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Auction Loan in respect of which its Auction Bid
has been accepted.
(g) If the Agent shall elect to submit an Auction Bid in its
capacity as a Bank, it shall submit such Auction Bid directly to the Borrower at
least one quarter of an hour earlier than the time by which the other Banks are
required
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to submit their Auction Bids to the Agent pursuant to paragraph (b) of this
Section.
SECTION 2.05. Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay each Bank the then unpaid
principal amount of each Loan of such Bank on the last day of the Interest
Period applicable to such Loan and on the Expiration Date. Each Loan shall bear
interest on the outstanding principal balance thereof as set forth in Section
2.08.
(b) Each Bank shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such Bank
resulting from each Loan made by such Bank, including the amounts of principal
and interest payable and paid to such Bank from time to time hereunder.
(c) The Agent shall maintain accounts in which it shall record (i)
the amount and date of each Loan made hereunder, the Class and Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal,
interest or fees due and payable or to become due and payable from the Borrower
to each Bank hereunder and (iii) the amount of any principal, interest or fees
received by the Agent hereunder for the account of the Banks and each Bank's
share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Bank or the Agent to maintain such accounts or any error therein
shall not in any manner affect the obligation of the Borrower to repay the Loans
in accordance with the terms of this Agreement.
(e) Any Bank may request that Loans of any Class made by it be
evidenced by a Note. In such event, the Borrower shall prepare, execute and
deliver to such Bank a Note payable to the order of such Bank (or, if requested
by such Bank, to such Bank and its registered assigns). Thereafter, the Loans
evidenced by such Note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more
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Notes in such form payable to the order of the payee named therein (or, if such
Note is a registered Note, to such payee and its registered assigns).
SECTION 2.06. Letters of Credit. (a) General. Subject to the terms
and conditions set forth herein, the Borrower may request the issuance of
Letters of Credit for its own account, in a form reasonably acceptable to the
Agent and the Issuing Bank, at any time and from time to time during the
Availability Period. In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of letter
of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
and specifying the date of issuance, amendment, renewal or extension (which
shall be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount of such
Letter of Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the Issuing Bank, the Borrower also shall submit a
letter of credit application on the Issuing Bank's standard form in connection
with any request for a Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the LC Exposure shall not exceed $25,000,000 and (ii) the sum of
the total Revolving Credit Exposure plus
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the aggregate principal amount of outstanding Auction Loans shall not exceed the
total Commitments.
(c) Expiration Date. Each Letter of Credit shall expire not later
than the close of business on the date that is five Business Days prior to the
Expiration Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Banks, the Issuing Bank
hereby grants to each Bank, and each Bank hereby acquires from the Issuing Bank,
a participation in such Letter of Credit equal to such Bank's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Bank hereby
absolutely and unconditionally agrees to pay to the Agent, for the account of
the Issuing Bank, such Bank's Applicable Percentage of each LC Disbursement made
by the Issuing Bank and not reimbursed by the Borrower on the date due as
provided in paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to the Borrower for any reason to the extent received by
such Bank. Each Bank acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
LC Disbursement by paying to the Agent an amount equal to such LC Disbursement
not later than 12:00 (noon), New York City time, on (i) the Business Day that
the Borrower receives notice of such LC Disbursement, if such notice is received
prior to 10:00 a.m., New York City time, on the day of receipt, or (ii) the
Business Day immediately following the day that the Borrower receives such
notice, if such notice is not received prior to such time on the day of receipt;
provided that ,if such LC Disbursement is not less than $1,000,000, the Borrower
may, subject to the conditions to borrowing set forth herein, request in
accordance with Section 2.03 that such payment be financed with an ABR Revolving
Borrowing in an equivalent amount and, to the extent so financed, the Borrower's
obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Borrowing. If the Borrower fails to make such payment
when due, the Agent shall notify each Bank of the applicable LC Disbursement,
the payment then due from the Borrower in respect thereof and such Bank's
Applicable Percentage thereof. Promptly following receipt of such notice, each
Bank shall pay to the Agent its Applicable Percentage of the
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payment then due from the Borrower, in the same manner as provided in Section
2.02 with respect to Loans made by such Bank (and Section 2.02 shall apply,
mutatis mutandis, to the payment obligations of the Banks), and the Agent shall
promptly pay to the Issuing Bank the amounts so received by it from the Banks.
Promptly following receipt by the Agent of any payment from the Borrower
pursuant to this paragraph, the Agent shall distribute such payment to the
Issuing Bank or, to the extent that Banks have made payments pursuant to this
paragraph to reimburse the Issuing Bank, then to such Banks and the Issuing Bank
as their interests may appear. Any payment made by a Bank pursuant to this
paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the
funding of ABR Revolving Loans as contemplated above) shall not constitute a
Loan and shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse
LC Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. Neither
the Agent, the Banks nor the Issuing Bank, nor any of their Related Parties,
shall have any liability or responsibility by reason of or in connection with
the issuance or transfer of any Letter of Credit or any payment or failure to
make any payment thereunder (irrespective of any of the circumstances referred
to in the preceding sentence), or any error, omission, interruption, loss or
delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Issuing Bank;
provided that the foregoing shall not be construed to excuse the Issuing Bank
from liability to the Borrower to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the Issuing Bank's gross negligence or wilful misconduct. The
parties hereto expressly agree that, in the absence of gross negligence or
wilful misconduct on the part of the Issuing Bank (as finally determined by a
court of competent jurisdiction), the Issuing Bank shall be deemed to have
exercised care in each such determination. In furtherance of
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the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Agent and the Borrower by telephone (confirmed by telecopy) of such
demand for payment and whether the Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure to give or delay in giving
such notice shall not relieve the Borrower of its obligation to reimburse the
Issuing Bank and the Banks with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.09 shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by
any Bank pursuant to paragraph (e) of this Section to reimburse the Issuing Bank
shall be for the account of such Bank to the extent of such payment.
(i) Cash Collateralization. If any Event of Default shall occur
and be continuing, on the Business Day that the Borrower receives notice from
the Agent, at the request of the Required Banks, demanding the deposit of cash
collateral pursuant to this paragraph, the Borrower shall deposit in an account
with the Agent, in the name of the Agent and for the benefit of the Banks, an
amount in cash equal to the LC Exposure as of such date plus any accrued and
unpaid interest thereon; provided that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become
immediately due and payable, without demand or other notice of any kind, upon
the occurrence of any Event of Default with respect to the Borrower described in
clause (g) or (h) of Article VII. Such deposit shall be held by the Agent as
collateral for the payment and performance of the obligations of the Borrower
under this Agreement. The Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any
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interest earned on the investment of such deposits, which investments shall be
made at the option and sole discretion of the Agent and at the Borrower's risk
and expense, such deposits shall not bear interest. Interest or profits, if any,
on such investments shall accumulate in such account. Moneys in such account
shall be applied by the Agent to reimburse the Issuing Bank for LC Disbursements
for which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrower for
the LC Exposure at such time or be applied to satisfy other obligations of the
Borrower under this Agreement. If the Borrower is required to provide an amount
of cash collateral hereunder as a result of the occurrence of an Event of
Default, such amount (to the extent not applied as aforesaid) shall be returned
to the Borrower within three Business Days after all Events of Default have been
cured or waived.
SECTION 2.07. Fees. (a) The Borrower agrees to pay to each Bank,
through the Agent, on the first Business Day of January, April, July and
October, in each year, and on the date on which the Commitment of such Bank
shall be terminated as provided herein, a commitment fee (a "Commitment Fee") on
the average daily unused amount of the Commitment of such Bank during the
preceding quarter (or shorter period commencing with the date hereof or ending
with the Expiration Date or the date on which the Commitment of such Bank shall
be terminated); provided, that, for purposes of determining the Commitment Fee,
the undrawn portion of the Commitments shall not be deemed to be reduced by the
amount of any borrowing under the Auction Facility. The Commitment Fees shall
accrue on each day at a rate per annum equal to the Applicable Rate in effect on
such day. All Commitment Fees shall be computed on the basis of the actual
number of days elapsed in a year of 365 or 366 days, as appropriate. The
Commitment Fee due to each Bank shall commence to accrue on the date of this
Agreement and shall cease to accrue on the date on which the Commitment of such
Bank shall be terminated as provided herein.
(b) The Borrower agrees to pay (i) to the Agent for the account of
each Bank a participation fee with respect to its participations in Letters of
Credit, which shall accrue at the Applicable Rate on the average daily amount of
such Bank's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Bank's
Commitment terminates and the date on which such Bank ceases to have any LC
Exposure, and (ii) to the Issuing Bank a fronting fee for Letters of Credit,
which shall accrue at the rate per annum of .125% on the average daily amount of
the LC Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the
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period from and including the Effective Date to but excluding the later of the
date of termination of the Commitments and the date on which there ceases to be
any LC Exposure. Participation fees and fronting fees accrued through and
including the last day of March, June, September and December of each year shall
be payable on the first Business Day following such last day, commencing on the
first such date to occur after the Effective Date; provided that all such fees
shall be payable on the date on which the Commitments terminate and any such
fees accruing after the date on which the Commitments terminate shall be payable
on demand. Any other fees payable to the Issuing Bank pursuant to this paragraph
shall be payable within 10 days after demand. All participation fees and
fronting fees shall be computed on the basis of a year of 365 or 366 days, as
appropriate and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) The Borrower agrees to pay to the Agent, for its own account,
the fees separately agreed between the Agent and the Borrower (the "Agency Fees"
and the "Structuring Fee").
(d) The Borrower agrees to pay the Agent, for its own account,
$100 for each Auction Bid Request the Borrower makes, payable the day on which
the Auction Bid Request is made.
(e) For any day on which the outstanding principal amount of Loans
and the LC Exposure shall be greater than 33% of the total Commitments (or,
following the Expiration Date, 33% of the total Commitments on the Expiration
Date), the Borrower shall pay to the Administrative Agent for the account of
each Bank a utilization fee (a "Utilization Fee") at a rate per annum equal to
the Applicable Rate in effect for such day on such Bank's Applicable Percentage
of the aggregate amount of the outstanding Loans and the LC Exposure on such
day. The Utilization Fees, if any, in respect of any fiscal quarter shall be
payable in arrears on each March 31, June 30, September 30 and December 31, on
the date on which the Commitments terminate and on any later date on which the
Loans are repaid in full or on which the LC Exposure is terminated; provided,
however, that if the Utilization Fee should be payable on a day other than a
Business Day, such date of payment shall be extended to the next succeeding
Business Day. All Utilization Fees shall be computed on the basis of a year of
365 or 366 days, as appropriate, and shall be payable for the actual number of
days elapsed
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(including the first day but excluding the last day).
(f) All Fees shall be paid on the dates due, in immediately
available funds, to the Agent (or to the Issuing Bank, in the case of fees
payable to it) for distribution, if and as appropriate, among the Banks. Once
paid, none of the Fees shall be refundable under any circumstances.
SECTION 2.08. Interest on Loans. (a) Subject to the provisions of
Section 2.09, the Loans comprising each ABR Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 365
or 366 days, as the case may be) at a rate per annum equal to the Alternate Base
Rate plus the Applicable Rate.
(b) Subject to the provisions of Section 2.09, the Loans
comprising each Eurodollar Borrowing shall bear interest (computed on the basis
of the actual number of days elapsed over a year of 360 days) (i) in the case of
a Eurodollar Revolving Loan at a rate per annum equal to the Eurodollar Rate for
the Interest Period in effect for such Borrowing plus the Applicable Rate or
(ii) in the case of a Eurodollar Auction Loan, at the Eurodollar Rate for the
Interest Period in effect for such Borrowing plus the Margin applicable to such
Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan. Each Delayed Fixed Rate Loan shall bear interest at the
Delayed Fixed Rate applicable to such Loan.
(d) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Alternate Base Rate or Eurodollar Rate for each Interest Period
or day within an Interest Period, as the case may be, shall be determined by the
Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.09. Default Interest. If the Borrower shall default in
the payment of the principal of or interest on any Loan or any other amount
becoming due hereunder, by acceleration or otherwise, the Borrower shall on
demand from time to time pay interest, to the extent permitted by law, on such
defaulted amount up to (but not including) the date
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of actual payment (after as well as before judgment) at a rate per annum
(computed on the basis of the actual number of days elapsed over a year of 360
days) equal to the Alternate Base Rate plus the Applicable Rate plus 2%.
SECTION 2.10. Alternate Rate of Interest. In the event, and on
each occasion, that on the day two Business Days prior to the commencement of
any Interest Period for a Eurodollar Borrowing the Agent shall have in good
faith determined that dollar deposits in the principal amounts of the Loans
comprising such Borrowing are not generally available in the London interbank
market, or that the rates at which such dollar deposits are being offered will
not adequately and fairly reflect the cost to the majority in interest of the
Banks of making or maintaining their Eurodollar Loans during such Interest
Period, or that reasonable means do not exist for ascertaining the Eurodollar
Rate, the Agent shall, as soon as practicable thereafter, give written or
telecopy notice of such determination to the Borrower and the Banks. In the
event of any such determination, (i) any request by the Borrower for a
Eurodollar Borrowing pursuant to Section 2.03 shall, until the Agent shall have
advised the Borrower and the Banks that the circumstances giving rise to such
notice no longer exist, be deemed to be a request for an ABR Borrowing and (ii)
any request by the Borrower for a Eurodollar Auction Borrowing shall be
ineffective; provided that (A) if the circumstances giving rise to such notice
do not affect all the Banks, then requests by Borrower for Eurodollar Auction
Borrowings may be made to Banks that are not affected thereby and (B) if the
circumstances giving rise to such notice affect only one Type of Borrowings,
then the other Type of Borrowings shall be permitted. Each determination by the
Agent hereunder shall be conclusive absent manifest error.
SECTION 2.11. Termination, Reduction and Extension of Commitments.
(a) The Commitments shall be automatically terminated on the Expiration Date.
(b) Upon at least three Business Days' prior irrevocable written
or telecopy notice to the Agent, the Borrower may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
unused portion of the Commitments; provided, however, that (i) each
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partial reduction of the Commitments shall be in an integral multiple of
$1,000,000 and (ii) the Borrower shall not terminate or reduce the Commitments
if, after giving effect to any concurrent prepayment of the Loans in accordance
with Section 2.12, the sum of the Revolving Credit Exposure plus the aggregate
principal amount of outstanding Auction Loans would exceed the total
Commitments.
(c) Each reduction in the Commitments hereunder shall be made
ratably among the Banks in accordance with their respective applicable
Commitments. The Borrower shall pay to the Agent for the account of the Banks,
on the date of each termination or reduction, the Commitment Fees on the amount
of the Commitments so terminated or reduced accrued through the date of such
termination or reduction.
(d) The Borrower may request an extension of this Agreement upon
60 days' prior written notice to the Agent; provided, that, such extension will
be at the sole option of the Banks and will require the written agreement of
each Bank in order to become effective.
SECTION 2.12. Prepayment. (a) The Borrower shall have the right at
any time and from time to time to prepay any Borrowing, in whole or in part,
upon at least three Business Days' prior written or telecopy notice (or
telephone notice promptly confirmed by written or telecopy notice) to the Agent;
provided, however, that each partial prepayment shall be in an amount which is
an integral multiple of $1,000,000, and that the Borrower shall not have the
right to prepay any Auction Loan without the prior consent of the Bank thereof.
(b) On the date of any termination or reduction of the Commitments
pursuant to Section 2.11, the Borrower shall pay or prepay so much of the
Borrowings as shall be necessary in order that the aggregate principal amount of
the Revolving Credit Exposure plus the aggregate principal amount of Auction
Loans outstanding will not exceed the aggregate Commitments after giving effect
to such termination or reduction.
(c) Each notice of prepayment shall specify the prepayment date and
the principal amount of each Borrowing (or portion thereof) to be prepaid, shall
be irrevocable and shall commit the Borrower to prepay such Borrowing by the
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amount stated therein on the date stated therein. All prepayments under this
Section 2.12 shall be subject to Section 2.15 but otherwise without premium or
penalty. All prepayments under this Section 2.12 shall be accompanied by accrued
interest on the principal amount being prepaid to the date of payment.
SECTION 2.13. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, if after the date of this Agreement
there is adopted any new law, rule or regulation or any change in applicable law
or regulation or in the interpretation or administration thereof by any
governmental authority charged with the interpretation or administration thereof
(whether or not having the force of law) which shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of or credit extended by such Bank (except
any such reserve requirement which is reflected in the Eurodollar Rate) or shall
impose on such Bank or the London interbank market any other condition affecting
this Agreement or Eurodollar Loans made by such Bank, and the result of any of
the foregoing shall be to increase the cost to such Bank of making or
maintaining any Eurodollar Loan or to reduce the amount of any sum received or
receivable by such Bank hereunder or under any Notes (whether of principal,
interest or otherwise) in respect of Eurodollar Loans by an amount deemed by
such Bank to be material, then the Borrower will pay to such Bank upon demand
such additional amount or amounts as will compensate such Bank for such
additional costs incurred or reduction suffered.
(b) If any Bank shall have determined that the applicability of
any law, rule, regulation, agreement or guideline adopted after the date hereof
regarding capital adequacy, or any change in any of the foregoing or the
adoption after the date hereof of any change in any law, rule, regulation,
agreement or guideline existing on the date hereof or in the interpretation or
administration of any of the foregoing by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or any lending office of such Bank) or any
Bank's holding company with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such
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author ity, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Bank's capital or on the capital of such
Bank's holding company, if any, as a consequence of this Agreement or the Loans
made by such Bank pursuant hereto to a level below that which such Bank or such
Bank's holding company could have achieved but for such applicability, adoption,
change or compliance (taking into consideration such Bank's policies and the
policies of such Bank's holding company with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time the Borrower
shall pay to such Bank such additional amount or amounts as will compensate such
Bank or such Bank's holding company for any such reduction suffered.
(c) A certificate of each Bank setting forth in reasonable detail
such amount or amounts as shall be necessary to compensate such Bank or its
holding company as specified in paragraph (a) or (b) above, as the case may be,
and the manner in which such Bank has determined the same, shall be delivered to
the Borrower and shall be conclusive absent manifest error. The Borrower shall
pay each Bank the amount shown as due on any such certificate delivered by it
within 10 days after its receipt of the same.
(d) Failure on the part of any Bank to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital with respect to any period shall not constitute a waiver of
such Bank's right to demand compensation with respect to such period or any
other period. The protection of this Section shall be available to each Bank
regardless of any possible contention of the invalidity or inapplicability of
the law, rule, regulation, guideline or other change or condition which shall
have occurred or been imposed.
SECTION 2.14. Change in Legality. (a) Notwithstanding any other
provision herein, if any change in, or adoption of, any law or regulation or in
the interpretation thereof by any governmental authority charged with the
administration or interpretation thereof shall make it unlawful for any Bank to
make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written notice
to the Borrower and to the Agent, such Bank may:
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(i) declare that Eurodollar Loans will not thereafter be made by
such Bank hereunder, whereupon any request by the Borrower for a
Eurodollar Borrowing shall, as to such Bank only, be deemed a request for
an ABR Loan unless such declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be
automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Bank shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Bank or the
converted Eurodollar Loans of such Bank shall instead be applied to repay the
ABR Loans made by such Bank in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the Borrower by
any Bank shall be effective as to each Eurodollar Loan, if lawful, on the last
day of the Interest Period currently applicable to such Eurodollar Loan.
SECTION 2.15. Indemnity. The Borrower shall indemnify each Bank
against any loss or expense which such Bank may sustain or incur as a
consequence of (a) any failure by the Borrower to fulfill on the date of any
Eurodollar Borrowing hereunder the applicable conditions set forth in Article
IV, (b) any failure by the Borrower to borrow or to refinance any Eurodollar
Loan hereunder after irrevocable notice of such borrowing or refinancing has
been given pursuant to Sections 2.03 and 2.04, (c) any payment or prepayment of
a Eurodollar Loan required by any other provision of this Agreement or otherwise
made or deemed made on a date other than the last day of the Interest Period
applicable thereto or (d) any default in payment or prepay ment of the principal
amount of any Eurodollar Loan or any part thereof or interest accrued thereon,
as and when due and payable (at the due date thereof, whether by scheduled
maturity, acceleration, irrevocable notice of prepayment or otherwise)
including, in each such case, any
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loss or reasonable expense sustained or incurred or to be sustained or incurred
in liquidating or employing deposits from third parties acquired to effect or
maintain such Loan or any part thereof as a Eurodollar Loan. Such loss or
reasonable expense shall include an amount equal to the excess, if any, as
reasonably determined by such Bank, of (i) its cost of obtaining the funds for
the Eurodollar Loan being paid, prepaid, converted or not borrowed (assumed to
be the Eurodollar Rate applicable thereto) for the period from the date of such
payment, prepayment, conversion or failure to borrow to the last day of the
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Eurodollar Loan which would have commenced on the date
of such failure) over (ii) the amount of interest (as reasonably determined by
such Bank) that would be realized by such Bank in reemploying the funds so paid,
prepaid or not borrowed for such period or Interest Period, as the case may be.
A certificate of any Bank setting forth any amount or amounts which such Bank is
entitled to receive pursuant to this Section, and the manner in which such Bank
has determined the same, shall be delivered to the Borrower and shall be
conclusive absent manifest error.
SECTION 2.16. Pro Rata Treatment. Except as required under
Sections 2.04 and 2.14, each Borrowing, each payment or prepayment of principal
of any Borrowing, each payment of interest on the Loans, each payment of the
Commitment Fees, each reduction of the Commitments and each refinancing of any
Borrowing with a Borrowing of any Type shall be allocated pro rata among the
Banks in accordance with their respective applicable Commitments (or, if such
Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their outstanding Loans). Each Bank agrees that
in computing such Bank's portion of any Borrowing to be made hereunder, the
Agent may, in its discretion, round each Bank's percentage of such Borrowing,
computed in accordance with Section 2.01, to the next higher or lower whole
dollar amount.
SECTION 2.17. Sharing of Setoffs. Each Bank agrees that if it
shall, through the exercise of a right of banker's lien, setoff or counterclaim
against the Borrower, or pursuant to a secured claim under Section 506 of Title
11 of the United States Code or other security or interest
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arising from, or in lieu of, such secured claim, received by such Bank under any
applicable bankruptcy, insolvency or other similar law or otherwise, or by any
other means, obtain payment (voluntary or involuntary) in respect of any
Revolving Loan or Revolving Loans or participations in LC Disbursements as a
result of which the unpaid principal portion of its Revolving Loans or
participations in LC Disbursements shall be proportionately less than the unpaid
principal portion of the Revolving Loans or participations in LC Disbursements
of any other Bank, it shall be deemed simultaneously to have purchased from such
other Bank at face value, and shall promptly pay to such other Bank the purchase
price for, a participation in the Revolving Loans or participations in LC
Disbursements of such other Bank, so that the aggregate unpaid principal amount
of the Revolving Loans and participations in Revolving Loans and in LC
Disbursements held by each Bank shall be in the same proportion to the aggregate
unpaid principal amount of all Revolving Loans and participations in LC
Disbursements then outstanding as the principal amount of its Revolving Loans
and participations in LC Disbursements prior to such exercise of banker's lien,
setoff or counterclaim or other event was to the principal amount of all
Revolving Loans and participations in LC Disbursements outstanding prior to such
exercise of banker's lien, setoff or counter-claim or other event; provided,
however, that, if any such purchase or purchases or adjustments shall be made
pursuant to this Section and the payment giving rise thereto shall thereafter be
recovered, such purchase or purchases or adjustments shall be rescinded to the
extent of such recovery and the purchase price or prices or adjustment restored
without interest. The Borrower expressly consents to the foregoing arrangements
and agrees that any Bank holding a participation in a Revolving Loan or in an LC
Disbursement deemed to have been so purchased may exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any and all moneys owing
by the Borrower to such Bank by reason thereof as fully as if such Bank had made
a Loan directly to the Borrower in the amount of such participation.
SECTION 2.18. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or reimbursements of LC
Disbursements or any Fees or other amounts) hereunder and under any other Loan
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Document not later than 12:00 (noon), New York City time, on the date when due
in dollars to the Agent at its offices at 000 Xxxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxx, in immediately
available funds.
(b) Whenever any payment (including principal of or interest on
any Borrowing or reimbursements of LC Disbursements or any Fees or other
amounts) hereunder or under any other Loan Document shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest or Fees, if applicable.
SECTION 2.19. Taxes. (a) Any and all payments by the Borrower
hereunder shall be made, in accordance with Section 2.18, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding taxes imposed on the net income of the Agent, any Bank or the Issuing
Bank (or any transferee or assignee thereof, including a participation holder
(any such entity being called a "Transferee")) and franchise taxes imposed on
the Agent, any Bank or the Issuing Bank (or Transferee) by the United States or
any jurisdiction under the laws of which the Agent, any such Bank or the Issuing
Bank (or such Transferee) or the applicable lending office, is organized or any
political subdivision thereof (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder to the Banks or the Issuing Bank (or
any Transferee) or the Agent, (i) the sum payable shall be increased by the
amount necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.19) such
Bank or the Issuing Bank (or such Transferee) or the Agent (as the case may be)
shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxing authority or
other Governmental Authority in accordance with applicable law; provided,
however, that no Transferee of any Bank shall be
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entitled to receive any greater payment under this paragraph (a) than such Bank
would have been entitled to receive with respect to the rights assigned,
participated or other wise transferred unless such assignment, participation or
transfer shall have been made at a time when the circumstances giving rise to
such greater payment did not exist.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Bank (or Transferee), the
Issuing Bank (or Transferee) and the Agent for the full amount of Taxes and
Other Taxes paid by such Bank (or such Transferee), the Issuing Bank (or such
Transferee) or the Agent, as the case may be, and any liability (including
penalties, interest and reasonable expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted by the relevant taxing authority or other Governmental Authority. Such
indemnification shall be made within 30 days after the date any Bank or the
Issuing Bank (or Transferee) or the Agent, as the case may be, makes written
demand therefor. If a Bank or the Issuing Bank (or Transferee) or the Agent
shall become aware that it is entitled to receive a refund in respect of Taxes
or Other Taxes as to which it has been indemnified by the Borrower pursuant to
this Section 2.19, it shall promptly notify the Borrower of the availability of
such refund and shall, within 30 days after receipt of a request by the
Borrower, apply for such refund at the Borrower's expense. If any Bank or the
Issuing Bank (or Transferee) or the Agent receives a refund in respect of any
Taxes or Other Taxes as to which it has been indemnified by the Borrower
pursuant to this Section 2.19, it shall promptly notify the Borrower of such
refund and shall repay such refund to the Borrower (to the extent of amounts
that have been paid by the Borrower under this Section 2.19 with respect to such
refund) within 30 days (or promptly upon receipt, if the Borrower has requested
application for such refund pursuant hereto), net
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of all reasonable out-of-pocket expenses of such Bank and without interest;
provided that the Borrower, upon the request of such Bank or the Issuing Bank
(or such Transferee) or the Agent, agrees to return such refund (plus penalties,
interest or other charges) to such Bank or the Issuing Bank (or such Transferee)
or the Agent in the event such Bank or the Issuing Bank (or such Transferee) or
the Agent is required to repay such refund. Nothing contained in this paragraph
(c) shall require any Bank or the Issuing Bank (or Transferee) or the Agent to
make available any of its tax returns (or any other information relating to its
taxes which it deems to be confidential); provided that Borrower, at its
expense, shall have the right to receive an opinion from a firm of independent
public accountants of recognized national standing acceptable to the Borrower
that the amount due hereunder is correctly calculated.
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes withheld by the Borrower in respect of any payment to any Bank or
the Issuing Bank (or Transferee) or the Agent, the Borrower will furnish to the
Agent, at its address referred to in Section 9.01, the original or a certified
copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.19
shall survive the payment in full of the principal of and interest on all Loans
made hereunder.
(f) On or prior to the execution of this Agreement and on or
before the transfer to a Transferee, the Agent shall notify the Borrower of each
Bank's or the Issuing Bank's (or Transferee's) address. On or prior to the
Banks' or the Issuing Bank's (or Transferee's) first Interest Payment Date, and
from time to time as required by law, each Bank or the Issuing Bank (or
Transferee) that is organized under the laws of a jurisdiction outside the
United States shall, if legally able to do so, deliver to the Borrower and the
Agent such certificates, documents or other evidence, as required by the Code or
Treasury Regulations issued pursuant thereto, including Internal Revenue Service
Form 1001 or Form 4224 and any other certificate or statement of exemption
required by Treasury
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Regulation Section 1.1441-1, 1.1441-4 or 1.1441-6(c) or any subsequent version
thereof or successors thereto, properly completed and duly executed by such Bank
or such Issuing Bank (or Transferee) establishing that such payment is (i) not
subject to United States Federal withholding tax under the Code because such
payment is effectively connected with the conduct by such Bank or such Issuing
Bank (or Transferee) of a trade or business in the United States or (ii) totally
exempt from United States Federal withholding tax, or subject to a reduced rate
of such tax under a provision of an applicable tax treaty. Unless the Borrower
and the Agent have received forms or other documents satisfactory to them
indicating that such payments hereunder or under any Notes are not subject to
United States Federal withholding tax or are subject to such tax at a rate
reduced by an applicable tax treaty, the Borrower shall withhold taxes from such
payments at the applicable statutory rate.
(g) The Borrower shall not be required to pay any additional
amounts to any Bank or the Issuing Bank (or Transferee) in respect of United
States Federal withholding tax pursuant to paragraph (a) above if the obligation
to pay such additional amounts would not have arisen but for a failure by such
Bank or such Issuing Bank (or Transferee) to comply with the provisions of
paragraph (f) above; provided, however, that the Borrower shall be required to
pay those amounts to any Bank or the Issuing Bank (or Transferee) that it was
required to pay hereunder prior to the failure of such Bank or such Issuing Bank
(or Transferee) to comply with the provisions of such paragraph (f).
SECTION 2.20. Termination or Assignment of Commitments Under
Certain Circumstances. (a) Any Bank or the Issuing Bank (or Transferee) claiming
any additional amounts payable pursuant to Section 2.13 or Section 2.19 or
exercising its rights under Section 2.14 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate or
document requested by the Borrower or to change the jurisdiction of its
applicable lending office if the making of such a filing or change would avoid
the need for or reduce the amount of any such additional amounts which may
thereafter accrue or avoid the circumstances giving rise to such exercise and
would not, in the sole determination of such Bank or such Issuing Bank, be
otherwise disadvantageous to such Bank or such
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Issuing Bank (or Transferee).
(b) In the event that any Bank shall have delivered a notice or
certificate pursuant to Section 2.13 or 2.14, or the Borrower shall be required
to make additional payments under Section 2.19 to any Bank or the Issuing Bank
(or Transferee) or to the Agent with respect to any Bank or the Issuing Bank (or
Transferee), the Borrower shall have the right, at its own expense, upon notice
to such Bank or the Issuing Bank (or Transferee) and the Agent (and, if a
Commitment is being assigned, the Issuing Bank), (a) to terminate the Commitment
of such Bank or such Issuing Bank (or Transferee) or (b) to require such Bank or
the Issuing Bank (or Transferee) to transfer and assign without recourse (in
accordance with and subject to the restrictions contained in Section 9.04) all
its interests, rights and obligations under this Agreement (other than any
outstanding Auction Loans) to another financial institution which shall assume
such obligations; provided that (i) no such termination or assignment shall
conflict with any law, rule or regulation or order of any Governmental Authority
and (ii) the Borrower or the assignee, as the case may be, shall pay to the
affected Bank or the Issuing Bank (or Transferee) in immediately available funds
on the date of such termination or assignment the principal of and interest
accrued to the date of payment on the Loans made by it hereunder and all other
amounts accrued for its account or owed to it hereunder and, in the case of a
termination or assignment by the Issuing Bank, shall cause all Letters of Credit
to be surrendered for cancelation on or prior to the date of such termination or
assignment.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Banks that:
SECTION 3.01. Organization; Powers. Each of the Borrower and the
Significant Subsidiaries (a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, (b)
has all requisite power and authority to own its property and assets and to
carry on its business as now conducted and as proposed to be conducted, (c) is
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qualified to do business in every jurisdiction where such qualification is
required, except where the failure so to qualify would not result in a Material
Adverse Effect, and (d) in the case of the Borrower, has the corporate power and
authority to execute, deliver and perform its obligations under each of the Loan
Documents and each other agreement or instrument contemplated thereby to which
it is or will be a party and to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and
performance by the Borrower of each of the Loan Documents and the borrowings
hereunder (collectively, the "Transactions") (a) have been duly authorized by
all requisite corporate and, if required, stockholder action and (b) will not
(i) violate (A) any provision of law, statute, rule or regulation the violation
of which could reasonably be expected to impair the validity and enforceability
of this Agreement or any other Loan Document or materially impair the rights of
or benefits available to the Banks under the Loan Documents, or of the
certificate or articles of incorporation or other constitutive documents or
by-laws of the Borrower or any Significant Subsidiary, (B) any order of any
Governmental Authority the violation of which could reasonably be expected to
impair the validity or enforce ability of this Agreement or any other Loan
Document, or materially impair the rights of or benefits available to the Banks
under the Loan Documents, or (C) any provision of any indenture or other
material agreement or instrument evidencing or relating to borrowed money to
which the Borrower or any Significant Subsidiary is a party or by which any of
them or any of their property is or may be bound in a manner which could
reasonably be expected to impair the validity and enforceability of this
Agreement or any other Loan Document or materially impair the rights of or
benefits available to the Banks under the Loan Documents, (ii) be in conflict
with, result in a breach of or constitute (alone or with notice or lapse of time
or both) a default under any such indenture, agreement or other instru ment in a
manner which could reasonably be expected to impair the validity and
enforceability of this Agreement or any other Loan Document or materially impair
the rights of or benefits available to the Banks under the Loan Documents or
(iii) result in the creation or imposition under any such indenture, agreement
or other instrument of any Lien upon or with respect to any property or assets
now owned or
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hereafter acquired by the Borrower.
SECTION 3.03. Enforceability. This Agreement has been duly
executed and delivered by the Borrower and constitutes, and each other Loan
Document when executed and delivered by the Borrower will constitute, a legal,
valid and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms.
SECTION 3.04. Governmental Approvals. No action, consent or
approval of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except
such as have been made or obtained and are in full force and effect.
SECTION 3.05. Financial Statements. The Borrower has heretofore
furnished to the Banks its consolidated balance sheets and statements of income
and statements of cash flow as of and for the fiscal year ended December 31,
1999, audited by and accompanied by the opinion of Deloitte & Touche,
independent public accountants. Such financial statements present fairly the
financial condition and results of operations of the Borrower and its
consolidated subsidiaries as of such dates and for such periods. Such balance
sheets and the notes thereto, together with the Borrower's Annual Report on Form
10-K for the fiscal year ended December 31, 1999, reflect all liabilities,
direct or contingent, of the Borrower and its consolidated Subsidiaries as of
the dates thereof which are material on a consolidated basis. Such financial
statements were prepared in accordance with GAAP applied (except as noted
therein) on a consistent basis.
SECTION 3.06. No Material Adverse Change. Except as disclosed in
the Borrower's Annual Report on Form 10-K for the fiscal year ended December 31,
1999, in the Borrower's Form 10-Q for the fiscal quarter ended March 31, 2000
and in any document filed prior to the date of this Agreement pursuant to
Sections 13(a), 14 or 15(d) of the Securities Exchange Act of 1934, there has
been no change in the business, assets, operations or financial condition of the
Borrower and the Subsidiaries, taken as a whole, since December 31, 1999, which
could reasonably be expected to have a material adverse effect on the
creditworthiness of the Borrower.
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SECTION 3.07. Litigation; Compliance with Laws. (a) Except as set
forth in the Annual Report of the Borrower on Form 10-K for the year ended
December 31, 1999, in the Borrower's Form 10-Q for the fiscal quarter ended
March 31, 2000 or in any document filed prior to the date of this Agreement
pursuant to Sections 13(a), 14 or 15(d) of the Securities Exchange Act of 1934,
there are not any actions, suits or proceedings at law or in equity or by or
before any Governmental Authority now pending or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any Subsidiary or any
business, property or rights of any such person (i) which involve any Loan Docu
ment or the Transactions or (ii) which could reasonably be anticipated,
individually or in the aggregate, to result in a Material Adverse Effect.
(b) Neither the Borrower nor any of the Subsidiaries is in
violation of any law, rule or regulation, or in default with respect to any
judgment, writ, injunction or decree of any Governmental Authority, where such
violation or default would be reasonably likely to result in a Material Adverse
Effect.
SECTION 3.08. Federal Reserve Regulations. (a) Neither the
Borrower nor any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Loan or Letter of Credit will
be used, whether directly or indirectly, and whether immediately, incidentally
or ultimately, (i) to purchase or carry Margin Stock or to extend credit to
others for the purpose of purchasing or carrying Margin Stock or to refund
indebtedness originally incurred for such purpose, or (ii) for any purpose which
entails a violation of, or which is inconsistent with, the provisions of the
Regulations of the Board, including Regulation U or X.
SECTION 3.09. Investment Company Act; Public Utility Holding
Company Act. The Borrower is not (a) an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940 or (b) subject
to regulation as a "holding company" under the Public Utility
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Holding Company Act of 1935.
SECTION 3.10. Use of Proceeds and Letters of Credit. The Borrower
will use the proceeds of the Loans and the Letters of Credit only for the
purposes specified in the preamble to this Agreement.
SECTION 3.11. No Material Misstatements. No information, report,
financial statement, exhibit or schedule furnished by or on behalf of the
Borrower to the Agent, the Issuing Bank or any Bank in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto contained, contains or will contain any material misstatement of fact
or, when considered together with all reports theretofore filed with the
Securities and Exchange Commission, omitted, omits or will omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were, are or will be made, not misleading.
SECTION 3.12. Employee Benefit Plans. Each of the Borrower and
its ERISA Affiliates is in compliance in all material respects with the
applicable provisions of ERISA and the regulations and published interpretations
thereunder. No Reportable Event has occurred as to which the Borrower or any
ERISA Affiliate was required to file a report with the PBGC, and the present
value of all benefit liabilities under each Plan (based on those assumptions
used to fund such Plan) did not, as of the last annual valuation date applicable
thereto, exceed by more than $10,000,000 the value of the assets of such Plan.
SECTION 3.13. Environmental and Safety Matters. Each of the
Borrower and each Subsidiary has complied with all Federal, state, local and
other statutes, ordinances, orders, judgments, rulings and regulations relating
to environmental pollution or to environmental or nuclear regulation or control
or to employee health or safety, except where noncompliance would not be
reasonably likely to result in a Material Adverse Effect. Neither the Borrower
nor any Subsidiary has received notice of any failure so to comply, except where
noncompliance would not be reasonably likely to result in a Material Adverse
Effect. The Borrower's and the Subsidiaries' plants do not manage any hazardous
wastes, hazardous substances, hazardous materials,
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toxic substances, toxic pollutants or substances similarly denominated, as those
terms or similar terms are used in the Resource Conservation and Recovery Act,
the Comprehensive Environmental Response Compensation and Liability Act, the
Hazardous Materials Transportation Act, the Toxic Substance Control Act, the
Clean Air Act, the Clean Water Act or any other applicable law relating to
environmental pollution or employee health and safety, or any nuclear fuel or
other radioactive materials, in violation of any law or any regulations
promulgated pursuant thereto, where such violation would be reasonably likely to
result in a Material Adverse Effect. The Borrower is aware of no events,
conditions or circumstances involving environmental pollution or contamination
or employee health or safety that could reasonably be expected to result in a
Material Adverse Effect. The representations and warranties set forth in this
Section 3.13 are, however, subject to any matters, circumstances or events set
forth in the Borrower's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, in the Borrower's Form 10-Q for the fiscal quarter ended
March 31, 2000 and in any document filed prior to the date of this Agreement
pursuant to Sections 13(a), 14 or 15(d) of the Securities Exchange Act of 1934;
provided, however, that the inclusion of such matters, circumstances or events
as exceptions (or any other exceptions contained in the representations and
warranties which refer to the Borrower's Annual Report on Form 10-K for the
fiscal year ended December 31, 1999, the Borrower's Form 10-Q for the fiscal
quarter ended March 31, 2000 or in any document filed prior to the date of this
Agreement pursuant to Sections 13(a), 14 or 15(d) of the Securities Exchange Act
of 1934) shall not be construed to mean that the Borrower has concluded that any
such matter, circumstance or effect is likely to result in a Material Adverse
Effect.
SECTION 3.14. Significant Subsidiaries. Schedule 3.14 sets forth
as of the date hereof a list of all Significant Subsidiaries of the Borrower and
the percentage ownership interest of the Borrower therein.
ARTICLE IV. CONDITIONS OF LENDING
The obligations of the Banks to make Loans and of the Issuing
Bank to issue, amend, renew, or extend Letters
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of Credit, hereunder are subject to the satisfaction of the following
conditions:
SECTION 4.01. All Borrowings. On the date of each Borrowing or
issuance, renewal, extension or amending of a Letter of Credit, including each
Borrowing in which Loans are refinanced with new Loans as contemplated by
Section 2.02(e):
(a) The Agent shall have received a notice of such Borrowing as
required by Section 2.03.
(b) The representations and warranties set forth in Article III
hereof (except, in the case of a refinancing of Loans or the issuance,
amendment, renewal or extension of a Letter of Credit or the refinancing
of a LC Disbursement that does not increase the sum of the Revolving
Credit Exposure, LC Disbursements and the Auction Loans of any Bank
outstanding, the representations set forth in Sections 3.06 and 3.07)
shall be true and correct in all material respects on and as of the date
of such Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit with the same effect as though made
on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date.
(c) The Borrower shall be in compliance with all the terms and
provisions set forth herein and in each other Loan Document on its part
to be observed or performed, and at the time of and immediately after
such Borrowing or the date of issuance, amendment, renewal or extension
of such Letter of Credit no Event of Default or Default shall have
occurred and be continuing.
Each Borrowing and issuance, amendment, renewal or extension of such Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date of such Borrowing as to the matters specified in paragraphs
(b) and (c) of this Section 4.01.
SECTION 4.02. First Borrowing. On the date of this Agreement:
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(a) The Agent shall have received favorable written opinions of
(i) Paine, Hamblen, Xxxxxx, Xxxxxx & Xxxxxx, counsel for the Borrower,
and (ii) Xxxxxx, Xxxx & Priest, special counsel to the Borrower, each
dated the date of this Agreement and addressed to the Banks, to the
effect set forth in Exhibits D-1 and D-2 hereto, and the Borrower hereby
instructs such counsel to deliver such opinions to the Agent.
(b) The Agent shall have received evidence satisfactory to it and
set forth on Schedule 4.02(b) that the Borrower shall have obtained all
consents and approvals of, and shall have made all filings and
registrations with, any Governmental Authority required in order to
consummate the Transactions, in each case without the imposition of any
condition which, in the judgment of the Banks, could adversely affect
their rights or interests hereunder.
(c) All legal matters incident to this Agreement and the
borrowings hereunder shall be satisfactory to the Banks and their
counsel and to Cravath, Swaine & Xxxxx, counsel for the Agent.
(d) The Agent shall have received (i) a copy of the certificate
or articles of incorporation, including all amendments thereto, of the
Borrower, certified as of a recent date by the Secretary of State of the
state of its organization, and a certificate as to the good standing of
the Borrower as of a recent date, from such Secretary of State; (ii) a
certificate of the Secretary or Assistant Secretary of the Borrower
dated the Closing Date and certifying (A) that attached thereto is a
true and complete copy of the by-laws of the Borrower as in effect on
the Closing Date and at all times since a date prior to the date of the
resolutions described in clause (B) below, (B) that attached thereto is
a true and complete copy of resolutions duly adopted by the board of
directors of the Borrower authorizing the execution, delivery and
performance of the Loan Documents and the borrowings hereunder, and that
such resolutions have not been modified, rescinded or amended and are in
full force and effect, (C) that the certificate or articles of
incorporation of the
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Borrower have not been amended since the date of the last amendment
thereto shown on the certificate of good standing furnished pursuant to
clause (i) above, and (D) as to the incumbency and specimen signature of
each officer executing any Loan Document or any other document delivered
in connection herewith on behalf of the Borrower; (iii) a certificate of
another officer as to the incumbency and specimen signature of the
Secretary or Assistant Secretary executing the certificate pursuant to
(ii) above; and (iv) such other documents as the Banks or their counsel
or Cravath, Swaine & Xxxxx, counsel for the Agent, may reasonably
request.
(e) The Agent shall have received a certificate, dated the
Closing Date and signed by a Financial Officer of the Borrower,
confirming compliance with the conditions precedent set forth in
paragraphs (b) and (c) of Section 4.01.
(f) The Agent shall have received all Fees and other amounts due
and payable on or prior to the date of this Agreement, including all
Fees accrued to the date hereof under the Pre-Restatement Credit
Agreement, this Agreement or the fee schedule set forth in the
invitation schedule and fee schedule dated May 12, 2000.
ARTICLE V. AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Bank and with the
Issuing Bank that so long as this Agreement shall remain in effect or the
principal of or interest on any Loan, any Fees or any other expenses, any LC
Disbursement or amounts payable under any Loan Document shall be unpaid or any
Letter of Credit remains outstanding, unless the Required Banks shall otherwise
consent in writing, the Borrower will:
SECTION 5.01. Existence; Businesses and Proper ties. (a) Do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect its legal existence, except as otherwise expressly permitted under
Section 6.02.
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(b) Do or cause to be done all things necessary to obtain,
preserve, renew, extend and keep in full force and effect the rights, licenses,
permits, franchises, authorizations, patents, copyrights, trademarks and trade
names utilized in the conduct of the Borrower's business except where the
failure so to obtain, preserve, renew, extend or maintain any of the foregoing
would not result in a Material Adverse Effect; maintain and operate such
business in substantially the manner in which it is presently conducted and
operated, except as otherwise expressly permitted under this Agreement; comply
in all material respects with all applicable laws, rules, regulations and orders
of any Governmental Authority, whether now in effect or hereafter enacted if
failure to comply with such requirements would result in a Material Adverse
Effect; and at all times maintain and preserve all property material to the
conduct of such business and keep such property in good repair, working order
and condition and from time to time make, or cause to be made, all needful and
proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may be
properly conducted at all times; provided, however, that the Borrower may cause
the discontinuance of the operation or a reduction in the capacity of any of its
facilities, or any element or unit thereof including, without limitation, real
and personal properties, facilities, machinery and equipment, (i) if, in the
judgment of the Borrower, it is no longer advisable to operate the same, or to
operate the same at its former capacity, and such discontinuance or reduction
would not result in a Material Adverse Effect, or (ii) if the Borrower intends
to sell and dispose of its interest in the same in accordance with the terms of
this Agreement and within a reasonable time shall endeavor to effectuate the
same.
SECTION 5.02. Insurance. (a) Maintain insurance, to such extent
and against such risks, as is customary with companies in the same or similar
businesses and owning similar properties in the same general area in which the
Borrower operates and (b) maintain such other insurance as may be required by
law. All insurance required by this Section 5.02 shall be maintained with
financially sound and reputable insurers or through self-insurance; provided,
however, that the portion of such insurance constituting
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self-insurance shall be comparable to that usually maintained by companies
engaged in the same or similar businesses and owning similar properties in the
same general area in which the Borrower operates and the reserves maintained
with respect to such self-insured amounts are deemed adequate by the officer or
officers of the Borrower responsible for insurance matters.
SECTION 5.03. Taxes and Obligations. Pay and discharge promptly
when due all taxes, assessments and governmental charges or levies imposed upon
it or upon its income or profits or in respect of its property, before the same
shall become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise which, if unpaid, might give rise to a Lien
upon such properties or any part thereof; provided, however, that such payment
and discharge shall not be required with respect to any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and the Borrower shall, to
the extent required by GAAP, have set aside on its books adequate reserves with
respect thereto.
SECTION 5.04. Financial Statements, Reports, etc. Furnish to the
Agent and each Bank:
(a) within 105 days after the end of each fiscal year, its
consolidated and consolidating balance sheets and related statements of
income and statements of cash flow, showing the financial condition of
the Borrower and its consolidated Subsidiaries as of the close of such
fiscal year and the results of its operations and the operations of such
Subsidiaries during such year, all audited by Deloitte & Touche or other
independent public accountants of recognized national standing
acceptable to the Required Banks and accompanied by an opinion of such
accountants (which shall not be qualified in any material respect) to
the effect that such consolidated financial statements fairly present
the financial condition and results of operations of the Borrower on a
consolidated basis (except as noted therein) in accordance with GAAP
consistently applied;
(b) within 50 days after the end of each of the first three
fiscal quarters of each fiscal year, its
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consolidated and, to the extent otherwise available, consolidating
balance sheets and related statements of income and statements of cash
flow, showing the financial condition of the Borrower and its
consolidated subsidiaries as of the close of such fiscal quarter and the
results of its operations and the operations of such subsidiaries during
such fiscal quarter and the then elapsed portion of the fiscal year, all
certified by one of its Financial Officers as fairly presenting the
financial condition and results of operations of the Borrower on a
consolidated basis in accordance with GAAP consistently applied, subject
to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under
(a) or (b) above, a certificate of the relevant accounting firm opining
on or certifying such statements or Financial Officer (which
certificate, when furnished by an accounting firm, may be limited to
accounting matters and disclaim responsibility for legal
interpretations) certifying that to the knowledge of the accounting firm
or the Financial Officer, as the case may be, no Event of Default or
Default has occurred or, if such an Event of Default or Default has
occurred, specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto;
(d) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials
filed by it with the Securities and Exchange Commission, or any
governmental authority succeeding to any of or all the functions of said
Commission, or with any national securities exchange, or distributed to
its share holders, as the case may be; and
(e) promptly, from time to time, such other information regarding
the operations, business affairs and financial condition of the Borrower
or any Significant Subsidiary, or compliance with the terms of any Loan
Document, as the Agent or any Bank may reasonably request.
SECTION 5.05. Litigation and Other Notices.
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Furnish to the Agent and each Bank prompt written notice of the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) proposed to be taken
with respect thereto;
(b) the filing or commencement of, or any written threat or
notice of intention of any person to file or commence, any action, suit
or proceeding, whether at law or in equity or by or before any
Governmental Authority, against the Borrower or any Subsidiary thereof
which could reasonably be anticipated to result in a Material Adverse
Effect; and
(c) any development that has resulted in, or could reasonably be
anticipated to result in, a Material Adverse Effect.
SECTION 5.06. ERISA. (a) Comply in all material respects with the
applicable provisions of ERISA and (b) furnish to the Agent and each Bank (i) as
soon as possible, and in any event within 30 days after any Responsible Officer
of the Borrower or any ERISA Affiliate either knows or has reason to know that
any Reportable Event has occurred that alone or together with any other
Reportable Event could reasonably be expected to result in liability of the
Borrower to the PBGC in an aggregate amount exceeding $10,000,000, a statement
of a Financial Officer setting forth details as to such Reportable Event and the
action proposed to be taken with respect thereto, together with a copy of the
notice, if any, of such Reportable Event given to the PBGC, (ii) promptly after
receipt thereof, a copy of any notice the Borrower or any ERISA Affiliate may
receive from the PBGC relating to the intention of the PBGC to terminate any
Plan or Plans (other than a Plan maintained by an ERISA Affiliate which is
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section
414 of the Code) or to appoint a trustee to administer any Plan or Plans and
(iii) within 10 days after the due date for filing with the PBGC pursuant to
Section 412(n) of the Code of a notice of failure to make a required installment
or other payment with respect to a Plan, a statement of a Financial Officer
setting forth details as to such failure and the action proposed to be taken
with respect thereto, together
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with a copy of such notice given to the PBGC.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Maintain all financial records in accordance with GAAP and permit
any representatives designated by any Bank to visit and inspect the financial
records and the properties of the Borrower at reasonable times and as often as
requested and to make extracts from and copies of such financial records, and
permit any representatives designated by any Bank to discuss the affairs,
finances and condition of the Borrower with the chief financial officer of the
Borrower, or other person designated by the chief financial officer, and
independent accountants therefor.
SECTION 5.08. Use of Proceeds and Letters of Credit. Use the
proceeds of the Loans and the Letters of Credit only for the purposes set forth
in the preamble to this Agreement.
SECTION 5.09. Further Assurance. Pledge all the capital stock
(including any warrants, options or other rights entitling the Borrower to
purchase or acquire such capital stock) of Avista Capital, Inc. to the Agent for
the benefit of the Banks by August 15, 2000. Such pledge shall be made pursuant
to a pledge agreement in a form reasonably satisfactory to the Agent. Such
pledge shall not restrict, limit or encumber the Borrower's ability to conduct
any business activities of Avista Capital, Inc. or any of its affiliates
(subject to any restrictions on Avista Capital, Inc. under this Agreement as a
result of it being a Significant Subsidiary), including, but not limited to, its
decisions related to disposition of assets in whole or in part, mergers,
acquisitions, inter-company loans, dividends or other commitments.
ARTICLE VI. NEGATIVE COVENANTS
The Borrower covenants and agrees with each Bank that, so long as
this Agreement shall remain in effect or the principal of or interest on any
Loan shall be unpaid, any LC Disbursement, any Fees or any other expenses or
amounts payable under any Loan Document shall be unpaid or any Letter of Credit
remains outstanding, unless the Required Banks shall otherwise consent in
writing, the Borrower will not:
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SECTION 6.01. Liens. Create, incur, assume or permit to exist any
Lien on any property or assets (including stock or other securities of any
person, including any Subsidiary) now owned or hereafter acquired by it or on
any income or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower created by the
documents, instruments or agreements existing on the date hereof and
which are listed as exhibits to the Borrower's Annual Report on Form
10-K for the fiscal year ended December 31, 1999, to the extent that
such Liens secure only obligations arising under such existing
documents, agreements or instruments;
(b) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower; provided that (i) such Lien is not
created in contemplation of or in connection with such acquisition and
(ii) such Lien does not apply to any other property or assets of the
Borrower;
(c) the Lien of the First Mortgage;
(d) Liens permitted under the First Mortgage (whether or not such
permitted Liens cover properties or assets subject to the Lien of the
First Mortgage) and any other Liens to which the Lien of the First
Mortgage is expressly made subject;
(e) the Lien of any collateral trust mortgage or similar
instrument which would be intended to eventually replace (in one
transaction or a series of transactions) the First Mortgage (as amended,
modified or supplemented from time to time, "Collateral Trust Mortgage")
on properties or assets of the Borrower to secure bonds, notes and other
obligations of the Borrower; provided that, so long as the First
Mortgage shall constitute a Lien on properties or assets of the
Borrower, the bonds, notes or other obligations issued under the
Collateral Trust Mortgage (i) shall also be secured by an equal
principal amount of bonds issued under the First Mortgage or (ii) shall
be issued against property additions not subject to the Lien of
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the First Mortgage;
(f) Liens permitted under the Collateral Trust Mortgage (whether
or not such permitted Liens cover properties or assets subject to the
Lien of the Collateral Trust Mortgage) and any other Liens to which the
Lien of the Collateral Trust Mortgage is subject;
(g) Liens for taxes, assessments or governmental charges not yet
due or which are being contested in compliance with Section 5.03;
(h) carriers', warehousemen's, mechanic's, materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business and securing obligations that are not due or which are being
contested in compliance with Section 5.03;
(i) pledges and deposits made in the ordinary course of business
in compliance with workmen's compen sation, unemployment insurance and
other social secur ity laws or regulations;
(j) Liens incurred or created in connection with or to secure the
performance of bids, tenders, trade contracts (other than for
Indebtedness), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(k) zoning restrictions, easements, rights-of-way, restrictions
on use of real property and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial
in amount and do not materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the business
of the Borrower or any of its Subsidiaries;
(l) Liens (i) which secure obligations not assumed by the
Borrower, (ii) on account of which the Borrower has not and does not
expect to pay interest directly or indirectly and (iii) which exist upon
real estate or rights in or relating to real estate in respect of which
the Borrower has a right-of-way or other easement
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for purposes of substations or transmission or distribution facilities;
(m) rights reserved to or vested in any federal, state or local
governmental body or agency by the terms of any right, power, franchise,
grant, license, contract or permit, or by any provision of law, to
recapture or to purchase, or designate a purchase of or order the sale
of, any property of the Borrower or to terminate any such right, power,
franchise, grant, license, contract or permit before the expiration
thereof;
(n) Liens of judgments covered by insurance, or upon appeal and
covered by bond, or to the extent not so covered not exceeding at one
time $10,000,000 in aggregate amount;
(o) any Liens, moneys sufficient for the discharge of which shall
have been deposited in trust with the trustee or mortgagee under the
instrument evidencing such Lien, with irrevocable authority of such
trustee or mortgagee to apply such moneys to the discharge of such Lien
to the extent required for such purpose;
(p) rights reserved to or vested in any federal, state or local
governmental body or agency or other public authority to control or
regulate the business or property of the Borrower;
(q) any obligations or duties, affecting the property of the
Borrower to any federal, state or local governmental body or agency or
other public authority with respect to any authorization, permit,
consent or license of such body, agency or authority, given in
connection with the purchase, construction, equipping, testing and
operation of the Borrower's utility property;
(r) with respect to any property which the Borrower may hereafter
acquire, any exceptions or reservations therefrom existing at the time
of such acquisition or any terms, conditions, agreements, covenants,
exceptions and reservations expressed or provided in the deeds of other
instruments,
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respectively, under and by virtue of which the Borrower shall hereafter
acquire the same, none of which materially impairs the use of such
property for the purposes for which it is acquired by the Borrower;
(s) leases and subleases entered into in the ordinary course of
business;
(t) banker's Liens and other Liens in the nature of a right of
setoff;
(u) Liens resulting from any transaction permitted under Section
6.03(v);
(v) renewals, replacements, amendments, modifications,
supplements, refinancings or extensions of Liens set forth above to the
extent that the principal amount of Indebtedness secured by such Lien
immediately prior thereto is not increased and such Lien is not extended
to other property (it being understood that such limitation does not
apply to the Liens described in subsection (c), (e) or (u) above);
(w) security deposits or amounts paid into trust funds for the
reclamation of mining properties;
(x) restrictions on transfer or use of properties and assets,
first rights of refusal, and rights to acquire properties and assets
granted to others;
(y) non-consensual equitable Liens on the Borrower's
tenant-in-common or other interest in joint projects;
(z) Liens on the Borrower's tenant-in-common or other interest in
joint projects incurred by the project sponsor without the express
consent of the Borrower to such incurrence;
(aa) cash collateral contemplated under Section 2.06(i) and the
pledge of Avista Capital, Inc. stock contemplated under Section 5.09 of
this Agreement and under Section 5.09 of the $140,000,000 Amended and
Restated Credit Agreement dated as of June 26, 2000 among the Borrower,
the banks named therein and
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Toronto-Dominion (Texas), Inc., as agent; and
(ab) Liens not expressly permitted in clauses (a) through (aa) of
this Section 6.01 to secure Indebtedness of the Borrower, provided that
the aggregate outstanding principal amount of the Indebtedness so
secured does not at any one time exceed 5% of the total assets of the
Borrower and its Subsidiaries, computed and consolidated in accordance
with GAAP consistently applied.
SECTION 6.02. Mergers, Consolidations and Acquisitions. Merge
into or consolidate with any other person, or permit any other person to merge
into or consolidate with it, or purchase, lease or otherwise acquire (in one
transaction or a series of transactions) all or substantially all of the assets
of any other person (whether directly by purchase, lease or other acquisition of
all or substantially all of the assets of such person or indirectly by purchase
or other acquisition of all or substantially all of the capital stock of such
other person) other than acquisitions in the ordinary course of the Borrower's
business, except that if (A) at the time thereof and immediately after giving
effect thereto no Event of Default or Default shall have occurred and be
continuing and (B) in the case of any merger or consolidation involving the
Borrower in which the Borrower is not the surviving corporation, the surviving
corporation shall assume in writing the obligations of the Borrower under this
Agreement and any other Loan Documents, then (a) the Borrower may merge or
consolidate with any Subsidiary in a transaction in which the Borrower is the
surviving corporation, (b) the Borrower may purchase, lease or otherwise acquire
from any Subsidiary all or substantially all of its assets and may purchase or
otherwise acquire all or substantially all of the capital stock of any person
who immediately thereafter is a Subsidiary, (c) the Borrower may merge with or
into, or consolidate with, any other person so long as (i) in the case where the
business of such other person, or an Affiliate of such other person, entirely or
primarily consists of an electric or gas utility business, the senior secured
long-term debt rating of the Borrower shall be at least BBB or higher by S&P and
Baa2 or higher by Xxxxx'x immediately after such merger or consolidation, or in
the case of a merger or consolidation in which the Borrower is
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not the surviving entity, the senior secured long-term debt rating of the
surviving entity or an Affiliate thereof shall be at least BBB+ or higher by S&P
and Baa1 or higher by Xxxxx'x immediately after such merger or consolidation, or
(ii) in the case where such other person's business does not entirely or
primarily consist of an electric or gas utility business, the assets of such
person at the time of such consolidation or merger do not exceed 10% of the
total assets of the Borrower and its Subsidiaries after giving effect to such
merger or consolidation, computed and consolidated in accordance with GAAP
consistently applied, and (d) the Borrower may purchase, lease or otherwise
acquire any or all of the assets of any other person (and may purchase or
otherwise acquire the capital stock of any other person) so long as (i) the
assets being purchased, leased or acquired (or the assets of the person whose
capital stock is being acquired) entirely or primarily consist of electric or
gas utility assets or (ii) in the case where the assets being purchased, leased
or acquired (or the assets of the person whose capital stock is being acquired)
do not entirely or primarily consist of electric or gas utility assets, the
assets being acquired (or the Borrower's proportionate share of the assets of
the person whose capital stock is being acquired) do not exceed 10% of the total
assets of the Borrower and its Subsidiaries, after giving effect to such
acquisition, computed and consolidated in accordance with GAAP consistently
applied.
SECTION 6.03. Disposition of Assets. Sell, lease, transfer,
assign or otherwise dispose of (in one transaction or in a series of
transactions), in any fiscal year, assets (whether now owned or hereafter
acquired) which, together with the amount of all sales, leases, transfers,
assignments or other dispositions permitted under clause (c)(ii) of the
definition of Subsidiary Event in Article I (other than sales, leases,
transfers, assignments or other dispositions permitted under clauses (c)(ii) (A)
through (C) in such definition), exceed 10% of the assets of the Borrower and
its Subsidiaries as of the end of the most recent fiscal year, computed and
consolidated in accordance with GAAP consistently applied, except (i) the
Borrower may, in any fiscal year, sell, lease, transfer, assign or otherwise
dispose of assets in the ordinary course of business which, together with the
amount of all sales, leases, transfers, assignments or other dispositions in the
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ordinary course permitted under clause (c)(ii)(A) of the definition of
Subsidiary Event in Article I, do not exceed 5% of the assets of the Borrower
and its Subsidiaries as of the end of the most recent fiscal year, computed and
consolidated in accordance with GAAP consistently applied, (ii) to the extent
permitted under Section 5.03, 6.01 or Section 6.02, (iii) the Borrower may sell,
lease, transfer, assign or otherwise dispose of its interest in the Washington
Public Power Supply System Nuclear Project No. 3 in accordance with the
settlement agreement among the Borrower, the Washington Public Power Supply
System and Bonneville Power Administration, as the same may be amended, modified
or supplemented from time to time, (iv) the Borrower may sell, lease, transfer,
assign or otherwise dispose of its interests in the Colstrip and Centralia
Projects and related assets and (v) the Borrower may sell, lease, transfer,
assign or otherwise dispose (including by way of capital contribution) of, or
create, incur, assume or permit to exist Liens on, receivables and related
properties or interests therein.
SECTION 6.04. Consolidated Total Debt to Consolidated Total
Capitalization Ratio. Permit the ratio of Consolidated Total Debt to
Consolidated Total Capitalization to be, at the end of any fiscal quarter,
greater than 0.60 to 1.00 for the preceding twelve-month period, and to remain
greater than 0.60 to 1.00 for a period of 30 days.
SECTION 6.05. Public Utility Regulatory Borrowing Limits. Incur
actual borrowings or commitments or issued and outstanding debt of the Borrower
in excess of the amount authorized (i) by statute without necessity of public
utility commission approval and/or (ii) by orders of public utility commissions,
as in effect from time to time.
SECTION 6.06. Guarantees. Incur Guarantees of or by the Borrower
with respect to Avista Energy, Inc. in excess of $50,000,000 in the aggregate or
Guarantees of or by the Borrower with respect to Avista Energy, Inc. with a
duration of one year or longer.
ARTICLE VII. EVENTS OF DEFAULT
In case of the happening (and during the
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continuance) of any of the following events ("Events of Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings hereunder, or any
representation, warranty, statement or information contained in any
report, certificate, financial statement or other instrument furnished
in connection with or pursuant to any Loan Document, shall prove to have
been false or misleading in any material respect when so made, deemed
made or furnished;
(b) default shall be made in the payment of any principal of any
Loan or any reimbursement obligation in respect of any LC Disbursement
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any
Loan or any Fee or any other amount (other than an amount referred to in
(b) above) due under any Loan Document, when and as the same shall
become due and payable, and such default shall continue unremedied for a
period of five Business Days;
(d) default shall be made in the due observance or performance by
the Borrower of any covenant, condition or agreement contained in
Section 5.01(a) or 5.05 or in Article VI;
(e) default shall be made in the due observance or performance by
the Borrower of any covenant, condition or agreement contained in any
Loan Document (other than those specified in (b), (c) or (d) above) and
such default shall continue unremedied for a period of 30 days after
notice thereof from the Agent or any Bank to the Borrower;
(f) the Borrower or any Significant Subsidiary shall (i) fail to
pay any principal or interest, regardless of amount, due in respect of
any Indebtedness when the aggregate unpaid principal amount is in excess
of $25,000,000, when and as the same shall
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become due and payable (after expiration of any applicable grace
period), or (ii) fail to observe or perform any other term, covenant,
condition or agreement (after expiration of any applicable grace period)
contained in any agreement or instrument evidencing or governing any
such Indebtedness if the effect of any failure referred to in this
clause (ii) is to cause, or to permit the holder or holders of such
Indebtedness or a trustee on its or their behalf (with or without the
giving of notice, the lapse of time or both) to cause, such Indebtedness
to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent jurisdiction
seeking (i) relief in respect of the Borrower or any Significant
Subsidiary, or of a substantial part of the property or assets of the
Borrower or a Significant Subsidiary, under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other
Federal or state bankruptcy, insolvency, receivership or similar law,
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Significant
Subsidiary or for a substantial part of the property or assets of the
Borrower or a Significant Subsidiary or (iii) the winding-up or
liquidation of the Borrower or any Significant Subsidiary; and such
proceeding or petition shall continue undismissed, or an order or decree
approving or ordering any of the foregoing shall be entered and continue
unstayed and in effect, for a period of 60 or more days;
(h) the Borrower or any Significant Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking relief
under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal or state bankruptcy, insolvency,
receivership or similar law, (ii) consent to the institution of, or fail
to contest in a timely and appropriate manner, any proceeding or the
filing of any petition described in (g) above, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar
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official for the Borrower or any Significant Subsidiary or for a
substantial part of the property or assets of the Borrower or any
Significant Subsidiary, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors, (vi) become
unable, admit in writing its inability or fail generally to pay its
debts as they become due or (vii) take any action for the purpose of
effecting any of the foregoing;
(i) a final judgment or judgments shall be rendered against the
Borrower, any Significant Subsidiary or any combination thereof for the
payment of money with respect to which an aggregate amount in excess of
$25,000,000 is not covered by insurance and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by
a judgment creditor to levy upon assets or properties of the Borrower or
any Significant Subsidiary to enforce any such judgment;
(j) a Reportable Event or Reportable Events, or a failure to make
a required installment or other payment (within the meaning of Section
412(n)(l) of the Code), shall have occurred with respect to any Plan or
Plans that reasonably could be expected to result in liability of the
Borrower to the PBGC or to a Plan in an aggregate amount exceeding
$25,000,000 and, within 30 days after the reporting of any such
Reportable Event to the Agent or after the receipt by the Agent of the
statement required pursuant to Section 5.06, the Agent shall have
notified the Borrower in writing that (i) the Required Banks have made a
determination that, on the basis of such Reportable Event or Reportable
Events or the failure to make a required payment, there are reasonable
grounds (A) for the termination of such Plan or Plans by the PBGC, (B)
for the appointment by the appropriate United States District Court of a
trustee to administer such Plan or Plans or (C) for the imposition of a
lien in favor of a Plan and (ii) as a result thereof an Event of Default
exists hereunder; or a trustee shall be appointed by a United States
District Court to administer any such Plan or Plans; or
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the PBGC shall institute proceedings to terminate any Plan or Plans;
(k) there shall occur a Subsidiary Event; or
(l) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Agent, at the request of the Required Banks,
shall, by notice to the Borrower, take either or both of the following actions,
at the same or different times: (i) terminate forthwith the Commitments and (ii)
declare the Loans then outstanding to be forthwith due and payable in whole or
in part, whereupon (A) the Commitments will automatically be terminated and (B)
the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and any unpaid accrued Fees and all other liabilities
of the Borrower accrued hereunder and under any other Loan Document, shall
become forthwith due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding; and in any event with respect to the Borrower
described in para graph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
ARTICLE VIII. THE AGENT
In order to expedite the various transactions contemplated by
this Agreement, Toronto Dominion (Texas), Inc. is hereby appointed to act as
Agent on behalf of the Banks and the Issuing Bank. Each of the Banks and the
Issuing Bank hereby irrevocably authorizes and directs the
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Agent to take such action on behalf of such Bank under the terms and provisions
of this Agreement, and to exercise such powers hereunder as are specifically
delegated to or required of the Agent by the terms and provisions hereof,
together with such powers as are reasonably incidental thereto. The Agent is
hereby expressly authorized on behalf of the Banks and the Issuing Bank, without
hereby limiting any implied authority, (a) to receive on behalf of each of the
Banks any payment of principal of or interest on the Loans outstanding
hereunder, LC Reimbursements and all other amounts accrued hereunder paid to the
Agent, and to distribute to each Bank its proper share of all payments so
received as soon as practicable; (b) to give notice promptly on behalf of each
of the Banks to the Borrower of any event of default specified in this Agreement
of which the Agent has actual knowledge acquired in connection with its agency
hereunder; and (c) to distribute promptly to each Bank copies of all notices,
agreements and other material as provided for in this Agreement as received by
such Agent.
Neither the Agent nor any of its directors, officers, employees
or agents shall be liable to any Bank as such for any action taken or omitted by
any of them hereunder except for its or his own gross negligence or wilful
misconduct, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in connection herewith or be
required to ascertain or to make any inquiry concerning the performance or
observance by the Borrower of any of the terms, conditions, covenants or
agreements of this Agreement. The Agent shall not be responsible to the Banks
and the Issuing Bank for the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement or any other instrument to
which reference is made herein. The Agent shall in all cases be fully protected
in acting, or refraining from acting, in accordance with written instructions
signed by the Required Banks, and, except as otherwise specifically provided
herein, such instructions and any action taken or failure to act pursuant
thereto shall be binding on all the Banks. The Agent shall, in the absence of
knowledge to the contrary, be entitled to rely on any paper or document believed
by it in good faith to be genuine and correct and to have been signed or sent by
the proper person or persons. Neither the Agent nor any of its directors,
officers, employees or agents shall have any
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responsibility to the Borrower on account of the failure or delay in performance
or breach by any Bank or the Issuing Bank of any of its obligations hereunder or
to any Bank or the Issuing Bank on account of the failure of or delay in
performance or breach by any other Bank or the Borrower of any of their
respective obligations hereunder or in connection herewith. The Agent may
execute any and all duties hereunder by or through agents or employees and shall
be entitled to advice of legal counsel selected by it with respect to all
matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Agent and its affiliates may accept deposits from, lend money
to and generally engage in any kind of business with the Borrower or other
affiliate thereof as if it were not the Agent.
Each Bank recognizes that applicable laws, rules, regulations or
guidelines of governmental authorities may require the Agent to determine
whether the transactions contemplated hereby should be classified as "highly
lever aged" or assigned any similar or successor classification, and that such
determination may be binding upon the other Banks. Each Bank understands that
any such determination shall be made solely by the Agent based upon such factors
(which may include, without limitation, the Agent's internal policies and
prevailing market practices) as the Agent shall deem relevant and agrees that
the Agent shall have no liability for the consequences of any such
determination.
Each Bank agrees (i) to reimburse the Agent in the amount of such
Bank's pro rata share (based on its Commitment hereunder) of any expenses
incurred for the benefit of the Banks by the Agent, including reasonable counsel
fees and compensation of agents and employees paid for services rendered on
behalf of the Banks, not reimbursed by the Borrower and (ii) to indemnify and
hold harmless the Agent and any of its directors, officers, employees or agents,
on demand, in the amount of its pro rata share, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against it in its capacity as the Agent or
any of them in any way
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relating to or arising out of this Agreement or any action taken or omitted by
it or any of them under this Agreement, to the extent not reimbursed by the
Borrower; provided, however, that no Bank shall be liable to the Agent for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or wilful misconduct of the Agent or any of its directors, officers,
employees or agents.
Each Bank acknowledges that it has, independently and without
reliance upon the Agent or any other Bank and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Agent or any other Bank based on
such documents and information as it shall deem appropriate at the time,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder.
The Agent may execute any of its duties under this Agreement by
or through agents or attorneys selected by them using reasonable care and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or misconduct of
any agents or attorneys selected and authorized to act by it with reasonable
care unless the damage complained of directly results from an act or failure to
act on part of the Agent which constitutes gross negligence or wilful
misconduct. Delegation to an attorney or agent shall not release the Agent from
its obligation to perform or cause to be performed the delegated duty.
The Documentation Agent and the Syndication Agent shall not have
any rights, powers, obligations, liabilities, responsibilities or duties under
this Agreement other than those applicable to all Banks as such. Without
limiting the foregoing, none of the Banks identified as "Documentation Agent" or
"Syndication Agent" shall have or be deemed to have any fiduciary relationship
with any Bank. Each Bank acknowledges that it has not relied, and will not rely,
on any of the Banks so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
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ARTICLE IX. MISCELLANEOUS
SECTION 9.01. Notices. Notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed or sent by telecopy, graphic scanning or other tele
graphic communications equipment of the sending party, as follows:
(a) if to the Borrower, to it at East 0000 Xxxxxxx Xxxxxx
(99202), X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxxx 00000, Attention of the
Senior Vice President and Chief Financial Officer (Telecopy No.
509-482-4879);
(b) if to the Agent, to it at 000 Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxx 00000, Attention of Xxxxxxxx Xxxxxxxx (Telecopy No. 713-951-9921);
(c) if to the Issuing Bank, to it at 000 Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, Attention of Xxxxxxxx Xxxxxxxx (Telecopy No.
713-951- 0021); and
(d) if to a Bank, to it at its address (or telecopy number) set
forth in Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Bank shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or other telegraphic communications equipment of the sender, or on the
date five Business Days after dispatch by certified or registered mail if
mailed, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 9.01 or in accordance with the latest
unrevoked direction from such party given in accordance with this Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties, including, without limitation, any indemnities
and
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reimbursement obligations, made by the Borrower herein and in the certificates
or other instruments prepared or delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the Banks and shall survive the making by the Banks of the Loans
and issuance of any Letters of Credit, and the execution and delivery to the
Banks of any Notes evidencing such Loans, regardless of any investigation made
by the Banks, or on their behalf, or by the Issuing Bank and shall continue in
full force and effect as long as the principal of or any accrued interest on any
Loan or any Fee or any other amount payable under this Agreement or any other
Loan Document is outstanding and unpaid or any Letter of Credit is outstanding
and so long as the Commitments have not been terminated.
SECTION 9.03. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and the Agent and
when the Agent shall have received copies hereof which, when taken together,
bear the signatures of each Bank and the Issuing Bank, and thereafter shall be
binding upon and inure to the benefit of the Borrower, the Agent, the Issuing
Bank and each Bank and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder or any interest
herein without the prior consent of all the Banks and the Issuing Bank.
SECTION 9.04. Successors and Assigns. (a) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and permitted assigns of such party; and all
covenants, promises and agreements by or on behalf of the Borrower, the Agent,
the Issuing Bank or the Banks that are contained in this Agreement shall bind
and inure to the benefit of their respective successors and permitted assigns.
(b) Each Bank (including the Agent when acting as a Bank) may
assign to one or more assignees all or a portion of its interests, rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Revolving Credit Commitment and the same portion of the
applicable Loan or Loans at the time owing to it other than any Auction Loans,
which may, but need not, be
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assigned); provided, however, that (i) except in the case of an assignment to a
Bank or an Affiliate of such Bank, the Borrower and the Agent (and, in the case
of an assignment of all or a portion of a Commitment or any Bank's obligation in
respect of its LC Exposure, the Issuing Bank) must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld),
(ii) that no assignee of any Bank shall be entitled to receive any greater
payment or protection under Sections 2.13, 2.14(a), 2.15 or 2.19 than such Bank
would have been entitled to receive with respect to the rights assigned or
otherwise transferred unless such assignment or transfer shall have been made at
a time when the circumstances giving rise to such greater payment did not exist,
(iii) each such assignment shall be of a constant, and not a varying, percentage
of all the assigning Bank's rights and obligations under this Agreement, except
that this clause (iii) shall not apply to rights in respect of outstanding
Auction Loans, (iv) the amount of the Commitment of the assigning Bank subject
to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Agent) shall not be less
than $5,000,000 (or, if less, the total amount of their Commitments), (v) the
parties to each such assignment shall execute and deliver to the Agent an
Assignment and Acceptance and a processing and recordation fee of $5,000 and
(vi) the assignee, if it shall not be a Bank, shall deliver to the Agent an
Administrative Questionnaire. Upon acceptance and recording pursuant to
paragraph (e) of this Section 9.04, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least five
Business Days after the execution thereof, (A) the assignee thereunder shall be
a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Bank under this Agreement
and (B) the assigning Bank thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Bank's rights and obligations under
this Agreement, such Bank shall cease to be a party hereto but shall continue to
be entitled to the benefits of Sections 2.13, 2.15, 2.19 and 9.05, as well as to
any Fees accrued for its account and not yet paid).
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(c) By executing and delivering an Assignment and Acceptance, the
assigning Bank thereunder and the assignee thereunder shall be deemed to confirm
to and agree with each other and the other parties hereto as follows: (i) such
assigning Bank warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and that its
Commitment, and the outstanding balances of its Loans, in each case without
giving effect to assignments thereof which have not become effective, are as set
forth in such Assignment and Accep tance; (ii) except as set forth in (i) above,
such assigning Bank makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of the Borrower or any Subsidiary or the
performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 5.04 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (v) such assignee will independently and
without reliance upon the Agent, such assigning Bank or any other Bank and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (vi) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Agent by the terms hereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees that
it will perform in accordance with their terms all the obligations which by the
terms of this Agreement are required to be performed by it as a Bank.
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(d) The Agent shall maintain a copy of each Assignment and
Acceptance delivered to it including the recordation of the names and addresses
of the Banks, and the Commitment of, and principal amount of the Loans and LC
Disbursements owing to, each Bank pursuant to the terms hereof from time to time
(the "Register"). The Agent, the Issuing Bank and the Banks may treat each
person whose name is recorded in the Register pursuant to the terms hereof as a
Bank hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower, the Issuing Bank and any Bank, at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Bank and an assignee, an Administrative
Questionnaire completed in respect of the assignee (unless the assignee shall
already be a Bank hereunder), the processing and recordation fee referred to in
paragraph (b) above and, if required, the written consent of the Borrower and
the Agent to such assignment, the Agent shall (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Banks. Upon the request of the assignee,
the Borrower, at its own expense, shall execute and deliver to the Agent, a new
Note or Notes to the order of such assignee in a principal amount equal to the
applicable Commitment assumed by it pursuant to such Assignment and Acceptance
and, if the assigning Bank has retained a Commitment, upon the request of the
assigning bank, the Borrower shall execute and deliver a new Note to the order
of such assigning Bank in a principal amount equal to the applicable Commitment
retained by it. Canceled Notes shall be returned to the Borrower.
(f) Each Bank may without the consent of the Borrower, the
Issuing Bank or the Agent sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it and any
Notes held by it); provided, however, that (i) such Bank's obligations under
this Agreement shall remain unchanged, (ii) such Bank shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participating banks or other entities shall be entitled to the benefit
of the cost
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protection provisions contained in Sections 2.13, 2.15 and 2.19 to the same
extent as if they were Banks (provided, that the amount of such benefit shall be
limited to the amount in respect of the interest sold to which the seller of
such participation would have been entitled had it not sold such interest) and
(iv) the Borrower, the Agent, the Issuing Bank and the other Banks shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement, and such Bank shall retain
the sole right to enforce the obligations of the Borrower relating to the Loans
and to approve any amendment, modification or waiver of any provision of this
Agreement (other than amendments, modifications or waivers decreasing any fees
payable hereunder or the amount of principal of or the rate at which interest is
payable on the Loans, extending any scheduled principal payment date or date
fixed for the payment of interest on the Loans or changing or extending the
Commitments).
(g) Any Bank or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 9.04, disclose to the assignee or participant or proposed assignee
or participant any information relating to the Borrower furnished to such Bank
by or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information.
(h) Notwithstanding anything to the contrary contained herein,
any Bank (a "Granting Bank") may grant to a special purpose funding vehicle (an
"SPC") the option to fund all or any part of any Loan that such Granting Bank
would otherwise be obligated to fund pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to fund any Loan,
and (ii) if an SPC elects not to exercise such option or otherwise fails to fund
all or any part of such Loan, the Granting Bank shall be obligated to fund such
Loan pursuant to the terms hereof. The funding of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Bank to the same extent, and as
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if, such Loan were funded by such Granting Bank. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or payment under this Agreement
for which a Bank would otherwise be liable for so long as, and to the extent,
the Granting Bank provides such indemnity or makes such payment. Notwithstanding
anything to the contrary contained in this Agreement, any SPC may disclose on a
confidential basis any non-public information relating to its funding of Loans
to any rating agency, commercial paper dealer or provider of any surety or
guarantee to such SPC. This paragraph may not be amended without the prior
written consent of each Granting Bank, all or any part of whose Loan is being
funded by an SPC at the time of such amendment.
(i) Any Bank may at any time assign for security purposes all or
any portion of its rights under this Agreement and any Notes issued to it to a
Federal Reserve Bank; provided that no such assignment shall release a Bank from
any of its obligations hereunder.
(j) Subject to Section 6.02, the Borrower shall not assign or
delegate any of its rights or duties hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to pay
(i) all reasonable out-of-pocket expenses incurred by the Agent in connection
with the preparation of this Agreement and the other Loan Documents or in
connection with any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions hereby contemplated shall be
consummated) or incurred by the Agent or any Bank in connection with the
enforcement or protection of their rights in connection with this Agreement and
the other Loan Documents or in connection with the Loans made or the Notes
issued hereunder, including the fees, charges and disbursements of Cravath,
Swaine & Xxxxx, counsel for the Agent, and, in connection with any such
amendment, modification or waiver or any such enforcement or protection, the
fees, charges and disbursements of any other internal or external counsel for
the Agent, the Issuing Bank or any Bank and (ii) all reasonable out-of-pocket
expenses incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder. The Borrower further agrees that it shall indemnify the
Banks from and hold them harmless
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against any documentary taxes, assessments or charges made by any Governmental
Authority by reason of the execution and delivery of this Agreement or any of
the other Loan Documents.
(b) The Borrower agrees to indemnify the Agent, the Issuing Bank
and each Bank and each of their respective directors, officers, employees and
agents (each such person being called an "Indemnitee") against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees, charges and disbursements,
incurred by or asserted against any Indemnitee arising out of, in any way
connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their respective obligations
thereunder or the consummation of the Transactions and the other transactions
contemplated thereby, (ii) the use of the proceeds of the Loans and of the
Letters of Credit (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of Credit)
or (iii) any claim, litigation, investigation or proceeding relating to any of
the foregoing, whether or not any Indemnitee is a party thereto; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses are determined by
a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative
and in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Agent, the Issuing Bank or any Bank. All amounts due
under this Section 9.05 shall be payable on written demand therefor.
SECTION 9.06. Right of Setoff. If an Event of
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Default shall have occurred and be continuing and the Loans shall have been
accelerated as set forth in Article VII, each Bank is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such Bank
(or bank Controlling such Bank) to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement and other Loan Documents held by such Bank. The
rights of each Bank under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Bank may have. Any Bank
shall provide the Borrower with written notice promptly after exercising its
rights under this Section.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Agent, the Issuing Bank or any Bank in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the Agent,
the Issuing Bank and the Banks hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies which they would
otherwise have. No waiver of any provision of this Agreement or any other Loan
Document or consent to any departure by the Borrower therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) below,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice or demand on the Borrower in any
case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to
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an agreement or agreements in writing entered into by the Borrower and the
Required Banks; provided, however, that no such agreement shall (i) decrease the
principal amount of, or extend the maturity of or any scheduled principal
payment date or date for the payment of any interest on any Loan or LC
Disbursement, or waive or excuse any such payment or any part thereof, or
decrease the rate of interest on any Loan, without the prior written consent of
each Bank affected thereby, (ii) change or extend the Commitment or decrease the
Commitment Fees of any Bank without the prior written consent of such Bank, or
(iii) amend or modify the provisions of Section 2.16, the provisions of this
Section or the definition of "Required Banks", without the prior written consent
of each Bank; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Agent or the Issuing Bank hereunder
without the prior written consent of the Agent or the Issuing Bank, as the case
may be. Each Bank and each holder of a Note shall be bound by any waiver,
amendment or modification authorized by this Section regardless of whether its
Note shall have been marked to make reference thereto, and any consent by any
Bank or holder of a Note pursuant to this Section shall bind any person
subsequently acquiring a Note from it, whether or not such Note shall have been
so marked.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything
herein or in any Notes to the contrary, if at any time the applicable interest
rate, together with all fees and charges which are treated as interest under
applicable law (collectively the "Charges"), as provided for herein or in any
other document executed in connection herewith, or otherwise contracted for,
charged, received, taken or reserved by any Bank, shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by such Bank in accordance with applicable law, the rate of
interest payable under any Note held by such Bank, together with all Charges
payable to such Bank, shall be limited to the Maximum Rate.
SECTION 9.10. Entire Agreement. This Agreement and the other Loan
Documents constitute the entire contract between the parties relative to the
subject matter hereof. Any previous agreement among the parties with respect to
the
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subject matter hereof is superseded by this Agreement and the other Loan
Documents. Nothing in this Agreement or in the other Loan Documents, expressed
or implied, is intended to confer upon any party other than the parties hereto
and thereto any rights, remedies, obligations or liabilities under or by reason
of this Agreement or the other Loan Documents.
SECTION 9.11. Waiver of Jury Trial. Each party hereto hereby
waives, to the fullest extent permitted by applicable law, any right it may have
to a trial by jury in respect of any litigation directly or indirectly arising
out of, under or in connection with this Agreement or any of the other Loan
Documents. Each party hereto (a) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing
waiver and (b) acknowledges that it and the other parties hereto have been
induced to enter into this Agreement and the other Loan Documents, as
applicable, by, among other things, the mutual waivers and certifications in
this Section 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract, and shall become
effec tive as provided in Section 9.03.
SECTION 9.14. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to
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be taken into consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a)
The Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Agent, Issuing Bank or any other Bank may otherwise have to bring any action or
proceeding relating to this Agreement or the other Loan Documents against the
Borrower or its properties in the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this agreement or the other Loan
Documents in any New York State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
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WITNESS the due execution hereof as of the date first above
written.
AVISTA CORPORATION,
by
/s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and
Treasurer
TORONTO DOMINION (TEXAS),
INC., as Agent,
by
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
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THE BANK OF NEW YORK, as
Documentation Agent,
by
/s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A., as
Syndication Agent,
by
/s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
TORONTO DOMINION (TEXAS), INC.,
by
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
THE TORONTO-DOMINION BANK, as
Issuing Bank
by
/s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Mgr. Cr. Admin.
THE BANK OF NEW YORK,
by
/s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
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BANK OF AMERICA, N.A.,
by
/s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
FIRST SECURITY BANK, N.A.,
by
/s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title:
FLEET NATIONAL BANK,
by
/s/Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK,
by
/s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
U.S. BANK, NATIONAL ASSOCIATION,
by
/s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
94
95
XXXXX FARGO BANK, N.A.,
by
/s/ Xxx Xxxx
------------------------------------
Name: Xxx Xxxx
Title: Vice President
95
96
EXHIBIT A
[FORM OF]
NOTE
$__________________ June 26, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, the undersigned, AVISTA CORPORATION, a Washington
corporation (the "Borrower"), hereby promises to pay to the order of
_______________________ (the "Bank"), at the office of Toronto Dominion (Texas),
Inc., (the "Agent"), at 000 Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, (i) on
the last day of each Interest Period, as defined in the $120,000,000 Amended and
Restated Revolving Credit Agreement dated as of June 26, 2000 (the "Credit
Agreement"), among the Borrower, the Banks named therein and the Agent, the
aggregate unpaid principal amount of all Loans (as defined in the Credit
Agreement) made to the Borrower by the Bank pursuant to the Credit Agreement to
which such Interest Period applies and (ii) on the Expiration Date (as defined
in the Credit Agreement) the aggregate unpaid principal amount of all Loans made
to the Borrower by the Bank pursuant to the Credit Agreement, in lawful money of
the United States of America in immediately available funds, and to pay interest
from the date hereof on the principal amount hereof from time to time
outstanding, in like funds, at said office, at the rate or rates per annum and
payable on the dates provided in the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue
principal and, to the extent permitted by law, overdue interest from their due
dates at the rate or rates provided in the Credit Agreement.
The Borrower hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates and
maturity dates thereof shall be endorsed by
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the holder hereof on the schedule attached hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof, or
otherwise recorded by such holder in its internal records; provided, however,
that the failure of the holder hereof to make such a notation or any error in
such a notation shall not affect the obligations of the Borrower under this
Note.
This Note is one of the Notes referred to in the Credit Agreement,
which, among other things, contains provisions for the acceleration of the
maturity hereof upon the happening of certain events, for optional and mandatory
prepayment of the principal hereof prior to the maturity hereof and for the
amendment or waiver of certain provisions of the Credit Agreement, all upon the
terms and conditions therein specified. This Note shall be construed in
accordance with and governed by the laws of the State of New York and any
applicable laws of the United States of America.
AVISTA CORPORATION
by
-------------------------------------
Name:
Title:
97
98
Loans and Payments
Unpaid Name of
Amount Payments Principal Person
and Maturity ------------------- Balance of Making
Date Type/Class of Date Principal Interest Note Notation
Loan
--------------------------------------------------------------------------------
98
99
EXHIBIT B
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the $120,000,000 Amended and Restated Credit
Agreement dated as of June 26, 2000 (as in effect from time to time, the "Credit
Agreement"), among Avista Corporation, a Washington corporation (the
"Borrower"), the banks listed on Schedule 2.01 thereto (the "Banks") and Toronto
Dominion (Texas), Inc., as agent for the Banks (in such capacity, the "Agent").
Terms defined in the Credit Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the Effective Date set forth on the reverse
hereof, the interests set forth on the reverse hereof (the "Assigned Interest")
in the Assignor's rights and obligations under the Credit Agreement, including,
without limitation, the interests set forth on the reverse hereof in the
Commitment of the Assignor on the Effective Date and Revolving Loans [and
Auction Loans] owing to the Assignor which are outstanding on the Effective
Date, together with unpaid interest accrued on the assigned Revolving Loans [and
Auction Loans] to the Effective Date, together with the participations in
Letters of Credit and LC Disbursements held by the Assignor on the Effective
Date, and the amount, if any, set forth on the reverse hereof of the Fees
accrued to the Effective Date for the account of the Assignor. Each of the
Assignor and the Assignee hereby makes and agrees to be bound by all the
representations, warranties and agreements set forth in Section 9.04(c) of the
Credit Agreement, a copy of which has been received by each such party. From and
after the Effective Date (i) the Assignee shall be a party to and be bound by
the provisions of the Credit Agreement and, to the extent of the interests
assigned by this Assignment and Acceptance, have the rights and obligations of a
Bank thereunder and under the Loan Documents and (ii) the Assignor shall, to the
extent of the interests assigned by this Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Credit Agreement.
2. This Assignment and Acceptance is being
99
100
delivered to the Agent together with (i) if the Assignee is organized under the
laws of a jurisdiction outside the United States, the forms specified in Section
2.19(f) of the Credit Agreement, duly completed and executed by such Assignee,
(ii) if the Assignee is not already a Bank under the Credit Agreement, an
Administrative Questionnaire in the form of Exhibit C to the Credit Agreement
and (iii) a processing and recordation fee of $5,000.
3. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment):
100
101
Percentage
Assigned of
Facility and
Commitment
Thereunder (set
forth, to at
least 8 decimals,
Principal Amount as a percentage
Assigned (and of the Facility
identifying and the aggregate
information as to Commitments of
individual all Banks
Facility Auction Loans) thereunder)
-------- -------------- -----------
Commitment $ %
Assigned:
Revolving Loans: $ %
[Auction Loans: $ %]
Fees Assigned (if $ %
any):
The terms set forth above and on
the reverse side hereof are
hereby agreed to: Accepted:
___________________, as Assignor TORONTO DOMINION (TEXAS),
INC., as Agent
By:____________________________ By:___________________________
Name: Name:
Title: Title:
___________________, as Title:
Assignee
By:____________________________
Name:
101
102
AVISTA CORPORATION
By:____________________________
Name:
Title:
102
103
EXHIBIT C
Administrative Questionnaire
103
104
EXHIBIT D-1
Opinion of Counsel for the Borrower
104
105
EXHIBIT D-2
Opinion of Special Counsel to the Borrower
105
106
SCHEDULE 2.01
Banks
Bank Commitment
---- ----------
Toronto Dominion (Texas), Inc. $18,450,000.00
000 Xxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
With copies to:
Toronto Dominion Bank U.S.A. Division
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xx. Xxxxx Xxxx
Telecopy: (000) 000-0000
Bank of America, N.A. $18,450,000.00
000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telecopy: (000) 000-0000
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107
Bank Commitment
---- ----------
The Bank of New York $18,450,000.00
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
First Security Bank, N.A. $11,925,000.00
000 Xxxxx 0xx Xxxxxx (83702)
Xxxxx, XX 00000
Attention: Mr. Xxxxx Xxxx
Telecopy: (000) 000-0000
Fleet National Bank $11,525,000.00
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telecopy: (000) 000-0000
Xxxxxx Guaranty Trust Company of New York $11,525,000.00
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
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108
U.S. Bank $9,250,000.00
0000 Xxxxx Xxxxxx
00xx Xxxxx
XXX000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxx
Telecopy: (000) 000-0000
Xxxxx Fargo Bank, National Association $9,250,000.00
000 X. Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxx Xxxx
Telecopy: (000) 000-0000
--------------------
$108,825,000.00
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SCHEDULE 3.14
Significant Subsidiaries
Name Percent Ownership
---- -----------------
Avista Capital, Inc. 100%
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SCHEDULE 4.02(b)
Statutes and Orders of Governmental Authorities
1. Statute of Washington authorizing borrowings of one year or less without
approval and/or Order(s) of the Washington Utilities and Transportation
Commission.
2. Statute of Oregon authorizing borrowings of one year or less without approval
and/or Order(s) of the Oregon Public Utility Commission.
3. Statute of Idaho authorizing borrowings of one year or less without approval
and/or Order(s) of the Idaho Public Utilities Commission.
4. Statute of California authorizing borrowings of one year or less without
approval and/or Order(s) of the California Public Utilities Commission.
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111
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
($140,000,000)
(364 DAY)
among
AVISTA CORPORATION,
THE BANKS NAMED XXXXXX,
XXXXXXX DOMINION (TEXAS), INC.,
BANK OF AMERICA, N.A.
and
THE BANK OF NEW YORK
Dated as of June 26, 2000
112
Article Section Page
------- ------- ----
I. DEFINITIONS
SECTION 1.01. Defined Terms.............................................................6
SECTION 1.02. Terms Generally..........................................................24
II. THE CREDITS
SECTION 2.01. Commitments..............................................................25
SECTION 2.02. Loans....................................................................26
SECTION 2.03. Notice of Revolving Borrowings...........................................28
SECTION 2.04. Auction Bid Procedure....................................................29
SECTION 2.05. Repayment of Loans; Evidence of Debt.....................................32
SECTION 2.06. Fees.....................................................................33
SECTION 2.07. Interest on Loans........................................................35
SECTION 2.08. Default Interest.........................................................35
SECTION 2.09. Alternate Rate of Interest...............................................35
SECTION 2.10. Termination, Reduction and Extension of Commitments......................36
SECTION 2.11. Prepayment...............................................................37
SECTION 2.12. Reserve Requirements; Change in Circumstances............................38
SECTION 2.13. Change in Legality.......................................................39
SECTION 2.14. Indemnity................................................................40
SECTION 2.15. Pro Rata Treatment.......................................................41
SECTION 2.16. Sharing of Setoffs.......................................................41
SECTION 2.17. Payments.................................................................42
SECTION 2.18. Taxes....................................................................43
SECTION 2.19. Termination or Assignment of Commitments Under Certain Circumstances.....46
III. REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers.....................................................47
SECTION 3.02. Authorization............................................................47
SECTION 3.03. Enforceability...........................................................48
SECTION 3.04. Governmental Approvals...................................................48
SECTION 3.05. Financial Statements.....................................................48
SECTION 3.06. No Material Adverse Change...............................................49
SECTION 3.07. Litigation; Compliance with Laws.........................................49
SECTION 3.08. Federal Reserve Regulations..............................................49
SECTION 3.09. Investment Company Act; Public Utility Holding Company Act...............50
2
113
Article Section Page
------- ------- ----
SECTION 3.10. Use of Proceeds..........................................................50
SECTION 3.11. No Material Misstatements................................................50
SECTION 3.12. Employee Benefit Plans...................................................50
SECTION 3.13. Environmental and Safety Matters.........................................51
SECTION 3.14. Significant Subsidiaries.................................................52
IV. CONDITIONS OF LENDING
SECTION 4.01. All Borrowings...........................................................52
SECTION 4.02. First Borrowing..........................................................53
V. AFFIRMATIVE COVENANTS
SECTION 5.01. Existence; Businesses and Properties.....................................54
SECTION 5.02. Insurance................................................................55
SECTION 5.03. Taxes and Obligations....................................................56
SECTION 5.04. Financial Statements, Reports, etc.......................................56
SECTION 5.05. Litigation and Other Notices.............................................58
SECTION 5.06. ERISA....................................................................58
SECTION 5.07. Maintaining Records; Access to Properties and Inspections................59
SECTION 5.08. Use of Proceeds..........................................................59
SECTION 5.09. Further Assurance........................................................59
VI. NEGATIVE COVENANTS
SECTION 6.01. Liens....................................................................60
SECTION 6.02. Mergers, Consolidations and Acquisitions.................................64
SECTION 6.03. Disposition of Assets....................................................65
SECTION 6.04. Consolidated Total Debt to Consolidated Total Capitalization Ratio.......66
SECTION 6.05. Public Utility Regulatory Borrowing Limits...............................66
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114
Article Section Page
------- ------- ----
SECTION 6.06. Guarantees...............................................................66
VII. EVENTS OF DEFAULT...................................................................................66
VIII. THE AGENT...........................................................................................70
IX. MISCELLANEOUS
SECTION 9.01. Notices..................................................................74
SECTION 9.02. Survival of Agreement....................................................74
SECTION 9.03. Binding Effect...........................................................75
SECTION 9.04. Successors and Assigns...................................................75
SECTION 9.05. Expenses; Indemnity......................................................80
SECTION 9.06. Right of Setoff..........................................................81
SECTION 9.07. Applicable Law...........................................................81
SECTION 9.08. Waivers; Amendment.......................................................82
SECTION 9.09. Interest Rate Limitation.................................................83
SECTION 9.10. Entire Agreement.........................................................83
SECTION 9.11. Waiver of Jury Trial.....................................................83
SECTION 9.12. Severability.............................................................84
SECTION 9.13. Counterparts.............................................................84
SECTION 9.14. Headings.................................................................84
SECTION 9.15. Jurisdiction; Consent to Service of Process..............................84
References
Exhibit A Form of Note
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Administrative Questionnaire
Exhibit D-1 Form of Opinion of Counsel for the
Borrower
Exhibit D-2 Form of Opinion of Special Counsel for
the Borrower
4
115
Schedule 2.01 Banks
Schedule 3.14 Significant Subsidiaries
Schedule 4.02(b) Statutes and Orders of Governmental
Authorities
5
116
AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT dated as of June 26, 2000, among AVISTA
CORPORATION, a Washington corporation (herein called
the "Borrower"), the banks listed in Schedule 2.01
(the "Banks"), TORONTO DOMINION (TEXAS), INC., as
agent for the Banks (in such capacity, the "Agent"),
BANK OF AMERICA, N.A. (formerly known as "Bank of
America National Trust and Savings Association"), as
syndication agent (the "Syndication Agent") and THE
BANK OF NEW YORK, as documentation agent (the
"Documentation Agent").
Pursuant to the Pre-Restatement Credit Agreement (as defined
herein), certain banks have extended credit to the Borrower. The Borrower has
requested that the Pre- Restatement Credit Agreement be amended and restated in
the form of this Agreement and that the Banks extend credit to the Borrower in
order to enable the Borrower to borrow on a standby revolving credit basis on
and after the date hereof, at any time prior to the Expiration Date (as defined
herein) in a principal amount not in excess of $121,175,000 at any time
outstanding (subject to a possible increase to $140,000,000, as provided in
Section 2.01(b) below). The proceeds of such borrowings are to be used for
general corporate purposes. In consideration of the mutual covenants and
agreements contained herein, the parties agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Administrative Questionnaire" shall mean an
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117
Administrative Questionnaire in the form of Exhibit C.
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with the
person specified.
"Agency Fees" shall have the meaning assigned to such term in
Section 2.06(b).
"Alternate Base Rate" shall mean, for any day, a rate per
annum (rounded upwards, if necessary, to the nearest 1/16 of 1%) equal to the
greater of (a) the Prime Rate (computed on the basis of the actual number of
days elapsed over a year of 365 or 366 days, as the case may be) in effect on
such day and (b) the sum of (i) the Federal Funds Effective Rate in effect for
such day plus (ii) 1/2 of 1%. If for any reason the Agent shall have determined
(which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Federal Funds Effective Rate for any reason, the
Alternate Base Rate shall be determined without regard to clause (b) of the
first sentence of this definition until the circumstances giving rise to such
inability no longer exist.
"Applicable Percentage" shall mean, with respect to any Bank,
the percentage of the total Commitments represented by such Bank's Commitment.
If the Commitments have terminated or expired, the Applicable Percentage shall
be determined based upon the Commitments most recently in effect, giving effect
to any assignments.
"Applicable Rate" shall mean on any date, with respect to any
ABR Loan or Eurodollar Revolving Loan, or with respect to the Commitment Fees or
Utilization Fees payable hereunder, as the case may be, the applicable rate per
annum set forth below under the caption "ABR Spread," "Eurodollar Spread",
"Commitment Fee" or "Utilization Fee", as the case may be, based upon the
Ratings or the Utilization Level, as the case may be:
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118
(a) Loan Spreads and Commitment Fee
-----------------------------------------------------------------------------------------
Ratings ABR Spread Eurodollar Commitment
Spread Fee
-----------------------------------------------------------------------------------------
Xxxxx 0 0.00% .625% .10%
A- or higher by
S&P; and A3 or
higher by Xxxxx'x
-----------------------------------------------------------------------------------------
Xxxxx 0 0.00% .75% .125%
BBB+ by S&P; and
Baa1 by Xxxxx'x
-----------------------------------------------------------------------------------------
Xxxxx 0 0.00% .875% .15%
BBB by S&P; and
Baa2 by Xxxxx'x
-----------------------------------------------------------------------------------------
Xxxxx 0 0.00% 1.00% .20%
BBB- by S&P; and
Baa3 by Xxxxx'x
-----------------------------------------------------------------------------------------
Xxxxx 0 .25% 1.25% .25%
BB+ by S&P; and
Ba1 by Xxxxx'x
-----------------------------------------------------------------------------------------
Xxxxx 0 .50% 1.50% .50%
Lower than BB+ by
S&P; and lower
than Ba1 by
Xxxxx'x
-----------------------------------------------------------------------------------------
For purposes of the foregoing, (i) if the Ratings in effect on any date fall in
different Levels, the Applicable Rate shall be determined on such date by
reference to the inferior (numerically higher) Level, unless the Ratings differ
by more than one Level, in which case the applicable Level shall be the Level
next below the superior (numerically lower) of the two; (ii) if either Xxxxx'x
or S&P shall not have in effect a Rating (other than because such rating agency
shall no longer be in the business of rating corporate debt obligations), then
such rating agency will be deemed to have established a Rating in Level 5; and
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119
(iii) if any rating established or deemed to have been established by Xxxxx'x or
S&P shall be changed (other than as a result of a change in the rating system of
either Xxxxx'x or S&P), such change shall be effective as of the day after the
date on which such change is first announced by the rating agency making such
change. Each change in the Applicable Rate shall apply during the period
commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating
system of either Xxxxx'x or S&P shall change, or if either such rating agency
shall cease to be in the business of rating corporate debt obligations, the
Borrower and the Banks shall negotiate in good faith to amend the references to
specific ratings in this definition to reflect such changed rating system or the
non- availability of ratings from such rating agency.
(b) Utilization Fees
-------------------------------------------------------------------
Utilization Level Utilization Fee
-------------------------------------------------------------------
Level 1 .15%
>.33 and less than/equal to .50
-------------------------------------------------------------------
Xxxxx 0 .30%
>.50 and less than/equal to .75
-------------------------------------------------------------------
Xxxxx 0 .50%
>.75
-------------------------------------------------------------------
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Bank and an assignee, and accepted by the Agent and
the Borrower, in the form of Exhibit B or such other form as shall be approved
by the Agent.
"Auction Bid" shall mean an offer by a Bank to make an Auction
Loan in accordance with Section 2.04.
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120
"Auction Bid Rate" shall mean, with respect to any Auction
Bid, the Margin for Eurodollar Auction Loans, the Fixed Rate for Fixed Rate
Loans or the Delayed Fixed Rate for Delayed Fixed Rate Loans, as applicable,
offered by the Bank in making such Auction Bid.
"Auction Bid Request" shall mean a request by the Borrower for
Auction Bids in accordance with Section 2.04.
"Auction Facility" shall mean the facility described in
Section 2.04.
"Auction Loan" shall mean a Loan made pursuant to Section
2.04.
"Availability Period" shall mean the period from and including
the Effective Date to but excluding the earlier of the Expiration Date and the
date of the termination of the Commitments.
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States.
"Borrowing" shall mean (a) a group of Revolving Loans of the
same Type, made, converted or continued on the same date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in effect or (b) an
Auction Loan or group of Auction Loans of the same Type made on the same date
and as to which a single Interest Period is in effect.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City.
"Capital Lease Obligations" of any person shall mean the
obligations of such person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
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121
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof),
of shares representing more than 30% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Borrower; or (b)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Borrower by Persons who were neither (i) nominated by the board
of directors of the Borrower nor (ii) appointed by directors so nominated;
provided, that no event described in clause (a) or clause (b) shall constitute a
"Change in Control" if the senior secured long-term debt rating of the Borrower
shall be at least BBB or higher by S&P and Baa2 or higher by Xxxxx'x immediately
after giving effect to the transaction that would otherwise constitute a Change
in Control.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Auction Loans.
"Closing Date" shall mean the date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as the same may
be amended from time to time.
"Commitment" shall mean, with respect to each Bank, the commitment of
such Bank to make Revolving Loans hereunder as set forth in Section 2.01, as the
same may be reduced from time to time pursuant to Section 2.10.
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.06(a).
"Consolidated Total Capitalization" on any date means the sum, without
duplication, of the following with respect to the Borrower and its consolidated
subsidiaries: (a) total capitalization as of such date, as determined in
accordance with GAAP, (b) the current portion of liabilities which as of such
date would be classified in whole or part as long-term debt in accordance with
GAAP (it being understood that the noncurrent portion of such liabilities is
included in the total capitalization referred to in
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122
clause (a)), (c) all obligations as lessee which, in accordance with GAAP, are
capitalized as liabilities (including the current portion thereof), and (d) all
other liabilities which would be classified as short-term debt in accordance
with GAAP.
"Consolidated Total Debt" on any date means the sum, without
duplication, of the following with respect to the Borrower and its consolidated
subsidiaries: (a) all liabilities which as of such date would be classified in
whole or in part as long-term debt in accordance with GAAP (including the
current portion thereof), (b) all obligations as lessee which, in accordance
with GAAP, are capitalized as liabilities (including the current portion
thereof), and (c) all other liabilities which would be classified as short-term
debt in accordance with GAAP, and (d) all Guarantees of or by the Borrower.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Default" shall mean any event or condition which upon notice, lapse
of time or both would constitute an Event of Default.
"Delayed Fixed Rate" shall mean, with respect to any Auction Loan
(other than a Eurodollar Auction Loan or a Fixed Rate Loan), the fixed rate of
interest per annum specified by the Bank in making such Auction Loan in its
related Auction Bid.
"Delayed Fixed Rate Loan" shall mean an Auction Loan bearing interest
at a Delayed Fixed Rate for which an Auction Bid Request is made two Business
Days before the proposed date of borrowing.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Environmental Law" shall mean any and all applicable present and
future treaties, laws, regulations,
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enforceable requirements, binding determinations, orders, decrees, judgments,
injunctions, permits, approvals, authorizations, licenses, permissions, notices
or binding agreements issued, promulgated or entered by any Governmental
Authority, relating to the environment, preservation or reclamation of natural
resources, or to the management, release or threatened release of contaminants
or noxious odor, including the Hazardous Materials Transportation Act,
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986, Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976
and Hazardous and Solid Waste Amendments of 1984, Federal Water Pollution
Control Act, as amended by the Clean Water Act of 1977, Clean Air Act of 1970,
as amended, Toxic Substances Control Act of 1976, Occupational Safety and Health
Act of 1970, as amended, Emergency Planning and Community Right-to-Know Act of
1986, Safe Drinking Water Act of 1974, as amended, and any similar or
implementing state law, and all amendments or regulations promulgated
thereunder.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that is a member of a group of which the Borrower is a member and
which is treated as a single employer under Section 414 of the Code.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Eurodollar Rate.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate in accordance with the provisions
of Article II.
"Eurodollar Rate" shall mean, with respect to any Eurodollar Loan for
any Interest Period, an interest rate
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per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the
product of (i) the arithmetic average of rates at which dollar deposits
approximately equal to the principal amount of the portion of such Eurodollar
Loan to be made by The Toronto-Dominion Bank, and for a maturity equal to the
applicable Interest Period, are offered to The Toronto-Dominion Bank for
Eurodollars at approximately 10:00 a.m., New York City time, two Business Days
prior to the commencement of such Interest Period and (ii) Statutory Reserves.
In the event that such rate is not available at such time for any reason, then
the "Eurodollar Rate" with respect to such Eurodollar Borrowing for such
Interest Period shall be the rate at which dollar deposits of $5,000,000 and for
a maturity comparable to such Interest Period are offered by the principal
London office of the Agent in immediately available funds in the London
interbank market at approximately 10:00 a.m., New York City time, two Business
Days prior to the commencement of such Interest Period.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Expiration Date" shall mean June 25, 2001.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as reported on such
Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
reported for any day that is a Business Day, the average of the quotations for
the day of such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it.
"Fees" shall mean the Commitment Fee and the Agency Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer or Treasurer of such corporation.
"First Mortgage" shall mean the Mortgage and Deed of Trust dated as of
June 1, 1939, made by the Borrower in favor of Citibank, N.A., as successor
Trustee, as the same
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has been amended, modified or supplemented to date and as the same may be
further amended, modified or supplemented from time to time hereafter.
"Fixed Rate" shall mean, with respect to any Auction Loan (other than
a Eurodollar Auction Loan or a Delayed Fixed Rate Loan), the fixed rate of
interest per annum specified by the Bank making such Auction Loan in its related
Auction Bid.
"Fixed Rate Loan" shall mean an Auction Loan bearing interest at a
Fixed Rate for which an Auction Bid Request is made on the day of the proposed
borrowing.
"GAAP" shall mean generally accepted accounting principles, applied on
a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantee" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase property, securities or services for the purpose
of assuring the owner of such Indebtedness of the payment of such Indebtedness
or (c) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness; provided, however, that the term Guarantee
shall not include endorsements for collection or deposit, in either case in the
ordinary course of business.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all
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obligations of such person upon which interest charges are customarily paid, (d)
all obligations of such person under conditional sale or other title retention
agreements relating to property or assets purchased by such person, (e) all
obligations of such person issued or assumed as the deferred purchase price of
property or services (other than trade payables incurred in the ordinary course
of business), (f) all Indebtedness of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on property owned or acquired by such person, whether or
not the obligations secured thereby have been assumed, but limited, if such
obligations are without recourse to such person, to the lesser of the principal
amount of such Indebtedness or the fair market value of such property, (g) all
Guarantees by such person of Indebtedness of others, (h) all Capital Lease
Obligations of such person, (i) all obligations of such person in respect of
interest rate protection agreements, foreign currency exchange agreements or
other interest or exchange rate hedging arrangements (the amount of any such
obligation to be the amount that would be payable upon the acceleration,
termination or liquidation thereof) and (j) all obligations of such person as an
account party in respect of letters of credit and bankers' acceptances. The
Indebtedness of any person shall include the Indebtedness of any partnership in
which such person is a general partner.
"Interest Payment Date" shall mean, with respect to any Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurodollar Borrowing with an Interest Period of more
than three months' duration, each day that would have been an Interest Payment
Date had successive Interest Periods of three months' duration been applicable
to such Borrowing and, in addition, the date of any refinancing or conversion of
such Borrowing with or to a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the
Borrower may elect, (b) as to any
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ABR Borrowing, the period commencing on the date of such Borrowing and ending on
the earliest of (i) the next succeeding March 31, June 30, September 30 or
December 31, (ii) the Expiration Date, and (iii) the date such Borrowing shall
be repaid or prepaid in accordance with Section 2.11 and (c) with respect to any
Fixed Rate Borrowing or Delayed Fixed Rate Borrowing, the period (which shall
not be less than 7 days or more than 360 days) commencing on the date of such
Borrowing and ending on the date specified in the applicable Auction Bid
Request; provided, however, that if any Interest Period would end on a day other
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurodollar Borrowing only, such
next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset and
(c) in the case of securities, any purchase option, call or similar right of a
third party with respect to such securities.
"Loans" shall mean loans made by the Banks to the Borrower pursuant to
this Agreement.
"Loan Documents" shall mean this Agreement and any Notes.
"Margin" shall mean, with respect to any Auction Loan bearing interest
at a rate based on the Eurodollar Rate, the marginal rate of interest, if any,
to be added to or subtracted from the Eurodollar Rate to determine the rate of
interest applicable to such Loan, as specified by the Bank making such Loan in
its related Auction Bid.
"Margin Stock" shall have the meaning given such term under Regulation
U.
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"Material Adverse Effect" shall mean an effect on the business,
assets, operations or financial condition of the Borrower and the Subsidiaries
taken as a whole which could reasonably be expected to have a material adverse
effect on the creditworthiness of the Borrower.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Notes" shall mean any promissory notes of the Borrower, substantially
in the form of Exhibit A, evidencing Loans, as may be delivered pursuant to
Section 2.05.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"person" shall mean a corporation, association, partnership, trust,
organization, business, individual or government or governmental agency or
political subdivision thereof.
"Plan" shall mean any pension plan subject to the provisions of Title
IV of ERISA or Section 412 or the Code which is maintained for employees of the
Borrower or any ERISA Affiliate.
"Pre-Restatement Credit Agreement" shall mean the Amended and Restated
Revolving Credit Agreement (364 day) among the Borrower, the banks named
therein, Toronto Dominion (Texas), Inc., Bank of America National Trust and
Savings Association and The Bank of New York, dated as of June 29, 1999, and as
in effect prior to its amendment and restatement hereby.
"Prime Rate" shall mean the rate of interest per annum adopted from
time to time by The Toronto-Dominion Bank at its principal office in New York
City as its prime rate. For purposes of this Agreement, any change in the
Alternate Base Rate due to a change in the Prime Rate shall be effective on the
date such change in the Prime Rate is adopted.
"Ratings" shall refer to the ratings of Moody's and S&P applicable to
the Borrower's senior unsecured long-term debt obligations.
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"Register" shall have the meaning given to such term in Section
9.04(d).
"Regulation D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof and shall include any successor or other regulation or official
interpretation of the Board relating to reserve requirements applicable to
member banks of the Federal Reserve System.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Related Parties" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Reportable Event" shall mean any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate which is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the
Code).
"Required Banks" shall mean, at any time, Banks having Revolving
Credit Exposures representing at least 66-2/3% of the aggregate Revolving
Exposures or, if there shall be no Revolving Credit Exposure, Banks having
Commitments representing at least 66-2/3% of the aggregate Commitments. For
purposes of declaring the Loans to be due and payable pursuant to Article VII,
and for all purposes after the Loans become due and payable pursuant to Article
VII or the Commitments expire or terminate, the outstanding Auction Loans of the
Banks shall be included in their respective Revolving Credit Exposure in
determining the Required Banks.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such
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corporation and any other officer or similar official thereof responsible for
the administration of the obligations of such corporation in respect of this
Agreement.
"Revolving Credit Exposure" shall mean, with respect to any Bank at
any time, the sum of the outstanding principal amount of such Bank's Revolving
Loans at such time.
"Revolving Loan" shall mean a Loan made pursuant to Section 2.03.
"S&P" shall mean Standard & Poor's Ratings Services.
"Significant Subsidiary" shall mean a Subsidiary meeting any one of
the following conditions: (a) the investments in and advances to such Subsidiary
by the Borrower and the other Subsidiaries, if any, as at the end of the
Borrower's latest fiscal quarter exceeded 10% of the total assets of the
Borrower and its Subsidiaries at such date, computed and consolidated in
accordance with GAAP; or (b) the Borrower's and the other Subsidiaries'
proportionate share of the total assets (after intercompany eliminations) of
such Subsidiary as at the end of the Borrower's latest fiscal quarter exceeded
10% of the total assets of the Borrower and its Subsidiaries at such date,
computed and consolidated in accordance with GAAP; or (c) the equity in the
income from continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principle of such Subsidiary for the
period of four consecutive fiscal quarters ending at the end of the Borrower's
latest fiscal quarter exceeded 10% of such income of the Borrower and its
Subsidiaries for such period, computed and consolidated in accordance with GAAP;
or (d) such Subsidiary is the parent of one or more Subsidiaries and, together
with such Subsidiaries would, if considered in the aggregate, constitute a
Significant Subsidiary.
"Statutory Reserves" shall mean a fraction (expressed as a decimal)
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages
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(including, without limitation, any marginal, special, emergency or supplemental
reserves) with respect to Eurodollar funding (including with respect to
Eurocurrency Liabilities as defined in Regulation D) in an amount approximately
equal to the respective Eurodollar Loan and with a term approximately equal to
the Interest Period for such Eurodollar Loan expressed as a decimal established
by the Board or by any other United States banking authority to which the Agent
is subject. Such reserve percentages shall include, without limitation, those
imposed under Regulation D. Statutory Reserves shall be adjusted automatically
on and as of the effective date of any change in any reserve percentage.
"Structuring Fee" shall have the meaning assigned to such term in
Section 2.06(b).
"subsidiary" shall mean, for any person (the "Parent"), any
corporation, partnership or other entity of which securities or other ownership
interests having by the terms thereof ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions of such
corporation, partnership or other entity (irrespective of whether or not at the
time securities or other ownership interests of any other class or classes of
such corporation, partnership or other entity shall have or might have voting
power by reason of the happening of any contingency) are at the time directly or
indirectly owned or controlled by the Parent or one or more of its subsidiaries
or by the Parent and one or more of its subsidiaries.
"Subsidiary" shall mean a subsidiary of the Borrower.
A "Subsidiary Event" shall mean the following; provided, however, that
a Subsidiary Event shall not be deemed to have occurred if the Banks have
previously consented thereto:
(a) any Significant Subsidiary shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.01(a) as if such
section applied to such Significant Subsidiary, with all references therein
to the Borrower being deemed references to such Significant Subsidiary;
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(b) any Significant Subsidiary shall fail to observe or perform any
covenant, condition or agreement in Sections 5.01(b), 5.02, 5.03 or 5.07 as
if such sections applied to such Significant Subsidiary, with all
references therein to the Borrower being deemed references to such
Significant Subsidiary, and such default shall continue unremedied for a
period of 30 days after notice thereof from the Agent or any Bank to the
Borrower;
(c) any Significant Subsidiary shall:
(i) merge into or consolidate with any other person, or permit
any other person to merge into or consolidate with it, or purchase,
lease or otherwise acquire (in one transaction or a series of
transactions) all or substantially all of the assets of any other
person (whether directly by purchase, lease or other acquisition of
all or substantially all of the assets of such person or indirectly by
purchase or other acquisition of all or substantially all of the
capital stock of such other person) other than acquisitions in the
ordinary course of such Significant Subsidiary's business, except that
if, at the time thereof and immediately after giving effect thereto no
Event of Default or Default shall have occurred and be continuing,
then (A) such Significant Subsidiary may (i) merge with or into, or
consolidate with, any Subsidiary or (ii) merge with or into, or
consolidate with, the Borrower in a transaction in which the Borrower
is the surviving corporation, (B) such Significant Subsidiary may
purchase, lease or otherwise acquire from any Subsidiary all or
substantially all of its assets and may purchase or otherwise acquire
all or substantially all of the capital stock of any person who
immediately thereafter is a Subsidiary, (C) such Significant
Subsidiary may merge with or into, or consolidate with, any other
person so long as the assets of such person at the time of such
consolidation or merger, do not exceed 10% of the total assets of the
Borrower and its Subsidiaries, after giving effect to such merger or
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consolidation, computed and consolidated in accordance with GAAP
consistently applied, and (D) such Significant Subsidiary may
purchase, lease or otherwise acquire any or all of the assets of any
other person (and may purchase or otherwise acquire the capital stock
of any other person) so long as the assets being purchased, leased or
acquired (or the Significant Subsidiary's proportionate share of the
assets of the person whose capital stock is being acquired) do not
exceed 10% of the total assets of the Borrower and its Subsidiaries,
after giving effect to such acquisition, computed and consolidated in
accordance with GAAP consistently applied, or
(ii) sell, lease, transfer, assign or otherwise dispose of (in
one transaction or in a series of transactions), in any fiscal year,
assets (whether now owned or hereafter acquired) which, together with
the amount of all sales, leases, transfers, assignments or
dispositions by the Borrower permitted under Section 6.03 (other than
sales, leases, transfers, assignments or other dispositions permitted
under clauses (i) through (iv) of such Section), are in excess of 10%
of the assets of the Borrower and its Subsidiaries as of the end of
the most recent fiscal year, computed and consolidated in accordance
with GAAP consistently applied, except (A) a Significant Subsidiary
may sell, lease, transfer, assign or otherwise dispose of, in any
fiscal year, assets in the ordinary course of business which, together
with the amount of all sales, leases, transfers, assignments or
dispositions in the ordinary course permitted under Section 6.03(i),
do not exceed 5% of the assets of the Borrower and its Subsidiaries as
of the end of the most recent fiscal year, computed and consolidated
in accordance with GAAP consistently applied, (B) to the extent
permitted in clause (c)(i) above and (C) any Significant Subsidiary
may sell, lease, transfer, assign or otherwise dispose of, or create,
incur, assume or permit to exist Liens on, receivables and related
properties or interests therein;
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provided, however, that, notwithstanding anything in this clause (c) to the
contrary, a Subsidiary Event shall not be deemed to have occurred and shall not
constitute an Event of Default under paragraph (k) of Article VII if, after
giving effect to the consummation of any transaction contemplated by clause
(c)(i) or (c)(ii) hereof, such Significant Subsidiary shall have or shall be
deemed to have a ratio of total long-term Indebtedness to total stockholders'
equity equal to or less than 1.5 to 1.0.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, "Rate" shall mean, in the
case of a Revolving Loan or Borrowing, the Eurodollar Rate and the Alternate
Base Rate or, in the case of an Auction Loan or Borrowing, the Eurodollar Rate,
Fixed Rate or Delayed Fixed Rate.
"Utilization Fee" shall have the meaning assigned to such term in
Section 2.06.
"Utilization Level" shall mean the ratio of the outstanding principal
amount of Loans to the total Commitments.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided,
however, that, for purposes of determining compliance with any covenant set
forth in
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Article VI, such terms shall be construed in accordance with GAAP as in
effect on the date of this Agreement applied on a basis consistent with the
application used in preparing the Borrower's audited financial statements
referred to in Section 3.05.
ARTICLE II. THE CREDITS
SECTION 2.01. (a) Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Bank
agrees, severally and not jointly, to make Revolving Loans to the Borrower, at
any time and from time to time on or after the date of this Agreement, and until
the earlier of the Expiration Date and the termination of the Commitment of such
Bank in accordance with the terms hereof, in an aggregate principal amount at
any time outstanding that will not result in (i) the Revolving Credit Exposure
of any Bank exceeding the Commitment set forth opposite its name in Schedule
2.01 hereto, as the same may be reduced from time to time pursuant to Section
2.10 or (ii) the sum of the total Revolving Credit Exposure plus the aggregate
principal amount of outstanding Auction Loans exceeding the total Commitments.
Within the limits set forth in the preceding sentence, the Borrower
may borrow, pay or prepay and reborrow Revolving Loans on or after the date of
this Agreement and prior to the Expiration Date, subject to the terms,
conditions and limitations set forth herein.
(b) On not more than two occasions the Borrower may by written notice
to the Administrative Agent cause New Banks (as defined below) to assume
Commitments by an aggregate amount not in excess of $18,825,000 in the aggregate
(the "New Commitments"). Each such notice shall specify (i) the date (each a
"Transition Date") on which the Borrower proposes that New Commitments shall
become effective, which shall be not less than ten Business Days
after the date on which such notice is delivered to the Administrative Agent and
(ii) the identity of each person that has agreed to assume any portion of such
New Commitments (each a "New Bank") and the amount of such New Commitments
allocated to such New Bank. Subject only to
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there not existing any Default or Event of Default on such Transition Date
before or after giving effect to such New Commitments, such New Commitments
shall become effective as of such Transition Date and, if any Revolving Loans
are outstanding on such Transition Date, each Bank shall assign to the New
Banks, and each of the New Banks shall purchase from the Banks, at the principal
amount thereof, such interests in the Revolving Loans outstanding on such
Transition Date as shall be necessary in order that, after giving effect to all
such assignments and purchases, such Revolving Loans will be held by Banks and
New Banks ratably in accordance with their Commitments after giving effect to
the addition of such New Commitments to the Commitments. The Administrative
Agent shall notify the Banks promptly upon receipt of the Borrower's notice
thereof of each Transition Date and in respect thereof the New Commitments, the
New Banks and, in the case of each notice to any Bank, the respective interests
in such Bank's Revolving Loans subject to the assignments contemplated by the
immediately preceding sentence. In the event that any Bank shall incur any
breakage cost as a result of making any such assignment, or that any New Bank
shall incur any reverse breakage cost as a result of taking any such assignment,
the Borrower shall indemnify it for such cost, calculated as contemplated by
Section 2.14 in the case of breakage costs and calculated based upon the
difference between the Eurodollar Rate applicable to each assigned Revolving
Loan and the cost to the New Bank of funding its assigned interests in the case
of reverse breakage costs. It is expressly understood that no Bank shall have
any obligation to agree to an increase in the amount of the Commitment pursuant
to this Section.
SECTION 2.02. Loans. (a) Each Revolving Loan shall be made as part of
a Borrowing consisting of Revolving Loans made by the Banks ratably in
accordance with their Commitments. Each Auction Loan shall be made in accordance
with the procedures set forth in Section 2.04. The failure of any Bank to make
any Loan required to be made hereunder shall not in itself relieve any other
Bank of its obligation to lend hereunder (it being understood, however, that no
Bank shall be responsible for the failure of any other Bank to make any Loan
required to be made by such other Bank). The Loans comprising each Borrowing
shall be in an aggregate principal amount which is an integral multiple of
$1,000,000.
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(b) Subject to Section 2.09, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans, as the Borrower may request
pursuant to Section 2.03, and (ii) each Auction Borrowing shall be comprised
entirely of Eurodollar Loans, Fixed Rate Loans or Delayed Fixed Rate Loans as
the Borrower may request in accordance with Section 2.04. Each Bank may at its
option fulfill its Commitment with respect to any Eurodollar Loan by causing any
domestic or foreign branch or Affiliate of such Bank to make such Loan; provided
that any exercise of such option shall not affect the obligation of the Borrower
to repay such Loan in accordance with the terms of this Agreement or any
applicable Note. Borrowings of more than one Type or Class may be outstanding at
the same time; provided, however, that the Borrower shall not be entitled to
request any Borrowing which, if made, would result in an aggregate of more than
five separate Eurodollar Loans of any Bank being outstanding hereunder at any
one time. For purposes of the foregoing, Loans having different Interest
Periods, regardless of whether they commence on the same date, shall be
considered separate Loans.
(c) Subject to paragraph (e) below, each Bank shall make a Revolving
Loan in the amount of its pro rata portion, as determined under Section 2.15,
or, if an Auction Loan, in the relevant amount as determined under Section 2.04,
of each Borrowing hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Agent in Houston, Texas, not later than 2:00
p.m., New York City time, and the Agent shall by 3:00 p.m., New York City time,
make available to the Borrower in immediately available funds the amounts so
received (i) by wire transfer for credit to the account of the Borrower with
Bank of America, N.A., Account Number 12332-29152; ABA # 12100358, or (ii) as
otherwise specified by the Borrower in its notice of Borrowing or, if a
Borrowing shall not occur on such date because any condition precedent herein
specified shall not have been met, return the amounts so received to the
respective Banks. Unless the Agent shall have received notice from a Bank prior
to the date of any Borrowing that such Bank will not make available to the Agent
such Bank's portion of such Borrowing, the Agent may assume that such Bank has
made such portion available to the Agent on the date of such Borrowing in
accordance with this paragraph (c)
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and the Agent may, in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the extent that such
Bank shall not have made such portion available to the Agent, such Bank and the
Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent at (i) in the case of the Borrower the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in the
case of such Bank, the Federal Funds Effective Rate. If such Bank shall repay to
the Agent such corresponding amount, such amount shall constitute such Bank's
Loan as part of such Borrowing for purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Expiration Date.
(e) The Borrower may refinance all or any part of any Borrowing with a
Borrowing of the same or a different Type or Class, subject to the conditions
and limitations set forth in this Agreement. Any Borrowing or part thereof so
refinanced shall be deemed to be repaid or prepaid in accordance with Section
2.05 or 2.11, as applicable, with the proceeds of a new Borrowing, and the
proceeds of the new Borrowing, to the extent they do not exceed the principal
amount of the Borrowing being refinanced, shall not be paid by the Banks to the
Agent or by the Agent to the Borrower pursuant to paragraph (c) above.
SECTION 2.03. Notice of Revolving Borrowings. To request a Revolving
Borrowing, the Borrower shall give the Agent written or telecopy notice (or
telephone notice promptly confirmed in writing or by telecopy) (a) in the case
of a Eurodollar Borrowing, not later than 10:00 a.m., New York City time, three
Business Days before a proposed borrowing and (b) in the case of an ABR
Borrowing, not later than 12:00 (noon), New York City time, the day of a
proposed borrowing. Such notice shall be irrevocable and shall in each case
refer to this Agreement and specify (i) whether the Borrowing then being
requested is to be a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of
such
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Borrowing (which shall be a Business Day) and the amount thereof; and (iii)
if such Borrowing is to be a Eurodollar Borrowing, the Interest Period with
respect thereto. If no election as to the Type of Borrowing is specified in any
such notice, then the requested Borrowing shall be an ABR Borrowing. If no
Interest Period with respect to any Eurodollar Borrowing is specified in any
such notice, then the Borrower shall be deemed to have selected an Interest
Period of one month's duration. If the Borrower shall not have given notice in
accordance with this Section 2.03 of its election to refinance a Borrowing prior
to the end of the Interest Period in effect for such Borrowing, then the
Borrower shall (unless such Borrowing is repaid at the end of such Interest
Period) be deemed to have given notice of an election to refinance such
Borrowing with an ABR Borrowing. The Agent shall promptly advise the Banks of
any notice given pursuant to this Section 2.03 and of each Bank's portion of the
requested Borrowing.
SECTION 2.04. Auction Bid Procedure. (a) Subject to the terms and
conditions set forth herein, from time to time during the Availability Period
the Borrower may request Auction Bids and may (but shall not have any obligation
to) accept Auction Bids and borrow Auction Loans; provided that the sum of the
total Revolving Credit Exposure plus the aggregate principal amount of
outstanding Auction Loans at any time shall not exceed the total Commitments. To
request Auction Bids, the Borrower shall notify the Agent of such request by
telephone, in the case of a Eurodollar Borrowing, not later than 1:00 p.m., New
York City time, four Business Days before the date of the proposed Borrowing, in
the case of a Fixed Rate Borrowing, not later than 1:00 p.m., New York City
time, one Business Day before the date of the proposed Borrowing, or, in the
case of a Delayed Fixed Rate Borrowing, not later than 2:00 p.m., New York City
time, two Business Days before the date for the proposed Borrowing; provided
that the Borrower may submit up to (but not more than) (i) 1 Eurodollar Auction
Bid Request and (ii) 1 Fixed Rate Auction Bid Request or 1 Delayed Fixed Rate
Auction Bid Request on the same day. Each such telephonic Auction Bid Request
shall be confirmed promptly by hand delivery or telecopy to the Agent of a
written Auction Bid Request in a form approved by the Agent and signed by the
Borrower. Each such telephonic and written
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Auction Bid Request shall specify the following information in compliance with
Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing, a Fixed
Rate Borrowing, or a Delayed Fixed Rate Borrowing;
(iv) the Interest Period (or Interest Periods) to be applicable to
such Borrowing, which shall be a period contemplated by the definition of
the term "Interest Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.02.
(b) Following receipt of an Auction Bid Request in accordance with
this Section, the Agent shall notify the Banks of the details thereof by
telecopy, inviting the Banks to submit Auction Bids in the case of a Eurodollar
Auction Bid Request, no later than 2:00 p.m., New York City time, four Business
Days before the proposed date of the Borrowing, in the case of a Fixed Rate
Auction Bid Request, no later than 2:00 p.m., one Business Day before the
proposed date of the Borrowing, and, in the case of a Delayed Fixed Rate Bid
Request, not later than 3:00 p.m., New York City time, two Business Days before
the proposed date of the Borrowing.
(c) Each Bank may (but shall not have any obligation to) make one or
more Auction Bids to the Borrower in response to an Auction Bid Request. Each
Auction Bid by a Bank must be in a form approved by the Agent and must be
received by the Agent by telecopy, in the case of a Eurodollar Auction
Borrowing, not later than 12:00 (noon), New York City time, three Business Days
before the proposed date of such Auction Borrowing, in the
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case of a Fixed Rate Borrowing, not later than 10:30 a.m., New York City time,
on the proposed date of such Auction Borrowing, and, in the case of a Delayed
Fixed Rate Bid, not later than 12:00 (noon), New York City time, one Business
Day before the proposed date of such Auction Borrowing. Auction Bids that do not
conform substantially to the form approved by the Agent may be rejected by the
Agent, and the Agent shall notify the applicable Bank as promptly as
practicable. Each Auction Bid shall specify (i) the principal amount (which
shall be an integral multiple of $1,000,000 and which may equal the entire
principal amount of the Auction Borrowing requested by the Borrower) of the
Auction Loan or Loans that the Bank is willing to make, (ii) the Auction Bid
Rate or Rates at which the Bank is prepared to make such Loan or Loans
(expressed as a percentage rate per annum in the form of a decimal to no more
than four decimal places) and (iii) the Interest Period applicable to each such
Loan and the last day thereof in accordance with the Auction Bid Request.
(d) The Agent shall promptly notify the Borrower by telecopy of the
Auction Bid Rate and the principal amount specified in each Auction Bid and the
identity of the Bank that shall have made such Auction Bid.
(e) Subject only to the provisions of this paragraph, the Borrower may
accept or reject any Auction Bid. The Borrower shall notify the Agent by
telephone, confirmed by telecopy in a form approved by the Agent, whether and to
what extent it has decided to accept or reject each Auction Bid, in the case of
a Eurodollar Auction Borrowing, not later than 2:00 p.m., New York City time,
three Business Days before the date of the proposed Auction Borrowing, in the
case of a Fixed Rate Borrowing, not later than 11:30 a.m., New York City time,
on the proposed date of the Auction Borrowing, and, in the case of a Delayed
Fixed Rate Borrowing, not later than 1:00 p.m., New York City time, one Business
day before the date of the proposed Auction Borrowing; provided that (i) the
failure of the Borrower to give such notice shall be deemed to be a rejection of
each Auction Bid, (ii) the Borrower shall not accept an Auction Bid made at a
particular Auction Bid Rate if the Borrower rejects an Auction Bid made at a
lower Auction Bid Rate, (iii) the aggregate amount of the Auction Bids accepted
by the Borrower shall not exceed the aggregate amount of the requested Auction
Borrowing specified in the related Auction Bid Request, (iv) to the extent
necessary to
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comply with clause (iii) above, the Borrower may accept Auction Bids at the same
Auction Bid Rate in part, which acceptance, in the case of multiple Auction Bids
at such Auction Bid Rate, shall be made pro rata in accordance with the amount
of each such Auction Bid, and (v) except pursuant to clause (iv) above, no
Auction Bid shall be accepted for an Auction Loan unless such Auction Loan is in
an integral multiple of $1,000,000. A notice given by the Borrower pursuant to
this paragraph shall be irrevocable.
(f) The Agent shall notify each bidding Bank by telephone and telecopy
whether or not its Auction Bid has been accepted (and, if so, the amount and
Auction Bid Rate so accepted) in the case of Eurodollar Auction Loans, by 3:00
p.m., New York City time, three Business Days before the borrowing date, in the
case of Fixed Rate Loans, by 12:00 (noon), New York City time, on the borrowing
date, and, in the case of Delayed Fixed Rate Loans, by 3:00 p.m., New York City
time, one Business Day before the Borrowing Date. Each successful bidder will
thereupon become bound, subject to the terms and conditions hereof, to make the
Auction Loan in respect of which its Auction Bid has been accepted.
(g) If the Agent shall elect to submit an Auction Bid in its capacity
as a Bank, it shall submit such Auction Bid directly to the Borrower at least
one quarter of an hour earlier than the time by which the other Banks are
required to submit their Auction Bids to the Agent pursuant to paragraph (b) of
this Section.
SECTION 2.05. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay each Bank the then unpaid principal
amount of each Loan of such Bank on the last day of the Interest Period
applicable to such Loan and on the Expiration Date. Each Loan shall bear
interest on the outstanding principal balance thereof as set forth in Section
2.07.
(b) Each Bank shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Bank
resulting from each Loan made by such Bank, including the amounts of principal
and interest payable and paid to such Bank from time to time hereunder.
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(c) The Agent shall maintain accounts in which it shall record (i) the
amount and date of each Loan made hereunder, the Class and Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal, interest
or fees due and payable or to become due and payable from the Borrower to each
Bank hereunder and (iii) the amount of any principal, interest or fees received
by the Agent hereunder for the account of the Banks and each Bank's share
thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of
any Bank or the Agent to maintain such accounts or any error therein shall not
in any manner affect the obligation of the Borrower to repay the Loans in
accordance with the terms of this Agreement.
(e) Any Bank may request that Loans of any Class made by it be
evidenced by a Note. In such event, the Borrower shall prepare, execute and
deliver to such Bank a Note payable to the order of such Bank (or, if requested
by such Bank, to such Bank and its registered assigns). Thereafter, the Loans
evidenced by such Note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more Notes in such
form payable to the order of the payee named therein (or, if such Note is a
registered Note, to such payee and its registered assigns).
SECTION 2.06. Fees. (a) The Borrower agrees to pay to each Bank,
through the Agent, on the first Business Day of January, April, July and
October, in each year, and on the date on which the Commitment of such Bank
shall be terminated as provided herein, a commitment fee (a "Commitment Fee") on
the average daily unused amount of the Commitment of such Bank during the
preceding quarter (or shorter period commencing with the date hereof or ending
with the Expiration Date or the date on which the Commitment of such Bank shall
be terminated); provided, that, for purposes of determining the Commitment Fee,
the undrawn portion of the Commitments shall not be deemed to be reduced by the
amount of any borrowing under the Auction Facility.
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The Commitment Fees shall accrue on each day at a rate per annum equal to the
Applicable Rate in effect on such day. All Commitment Fees shall be computed on
the basis of the actual number of days elapsed in a year of 365 or 366 days, as
appropriate. The Commitment Fee due to each Bank shall commence to accrue on the
date of this Agreement and shall cease to accrue on the date on which the
Commitment of such Bank shall be terminated as provided herein.
(b) The Borrower agrees to pay to the Agent, for its own account, the
fees separately agreed between the Agent and the Borrower, at the times agreed
to (the "Agency Fees" and the "Structuring Fee").
(c) For any day on which the outstanding principal amount of Loans
shall be greater than 33% of the total Commitments (or, following the Expiration
Date, 33% of the total Commitments on the Expiration Date), the Borrower shall
pay to the Administrative Agent for the account of each Bank a utilization fee
(a "Utilization Fee") at a rate per annum equal to the Applicable Rate in effect
for such day on such Bank's Applicable Percentage of the aggregate amount of the
outstanding Loans on such day. The Utilization Fees, if any, in respect of any
fiscal quarter shall be payable in arrears on each March 31, June 30, September
30 and December 31, on the date on which the Commitments terminate and on any
later date on which the Loans are repaid in full; provided, however, that if the
Utilization Fee should be payable on a day other than a Business Day, such date
of payment shall be extended to the next succeeding Business Day. All
Utilization Fees shall be computed on the basis of a year of 365 or 366 days, as
appropriate, and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(d) The Borrower agrees to pay the Agent, for its own account, $100
for each Auction Bid Request the Borrower makes, payable the day on which the
Auction Bid Request is made.
(e) All Fees shall be paid on the dates due, in immediately available
funds, to the Agent for distribution, if and as appropriate, among the Banks.
Once paid, none of the Fees shall be refundable under any circumstances.
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SECTION 2.07. Interest on Loans. (a) Subject to the provisions of
Section 2.08, the Loans comprising each ABR Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 365
or 366 days, as the case may be) at a rate per annum equal to the Alternate Base
Rate plus the Applicable Rate.
(b) Subject to the provisions of Section 2.08, the Loans comprising
each Eurodollar Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) (i) in the case of a
Eurodollar Revolving Loan at a rate per annum equal to the Eurodollar Rate for
the Interest Period in effect for such Borrowing plus the Applicable Rate or
(ii) in the case of a Eurodollar Auction Loan, at the Eurodollar Rate for the
Interest Period in effect for such Borrowing plus the Margin applicable to such
Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan. Each Delayed Fixed Rate Loan shall bear interest at the
Delayed Fixed Rate applicable to such Loan.
(d) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Alternate Base Rate or Eurodollar Rate for each Interest Period
or day within an Interest Period, as the case may be, shall be determined by the
Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.08. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, the Borrower shall on demand from
time to time pay interest, to the extent permitted by law, on such defaulted
amount up to (but not including) the date of actual payment (after as well as
before judgment) at a rate per annum (computed on the basis of the actual number
of days elapsed over a year of 360 days) equal to the Alternate Base Rate plus
the Applicable Rate plus 2%.
SECTION 2.09. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business
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Days prior to the commencement of any Interest Period for a Eurodollar Borrowing
the Agent shall have in good faith determined that dollar deposits in the
principal amounts of the Loans comprising such Borrowing are not generally
available in the London interbank market, or that the rates at which such dollar
deposits are being offered will not adequately and fairly reflect the cost to
the majority in interest of the Banks of making or maintaining their Eurodollar
Loans during such Interest Period, or that reasonable means do not exist for
ascertaining the Eurodollar Rate, the Agent shall, as soon as practicable
thereafter, give written or telecopy notice of such determination to the
Borrower and the Banks. In the event of any such determination, (i) any request
by the Borrower for a Eurodollar Borrowing pursuant to Section 2.03 shall, until
the Agent shall have advised the Borrower and the Banks that the circumstances
giving rise to such notice no longer exist, be deemed to be a request for an ABR
Borrowing and (ii) any request by the Borrower for a Eurodollar Auction
Borrowing shall be ineffective; provided that (A) if the circumstances giving
rise to such notice do not affect all the Banks, then requests by Borrower for
Eurodollar Auction Borrowings may be made to Banks that are not affected thereby
and (B) if the circumstances giving rise to such notice affect only one Type of
Borrowings, then the other Type of Borrowings shall be permitted. Each
determination by the Agent hereunder shall be conclusive absent manifest error.
SECTION 2.10. Termination, Reduction and Extension of Commitments. (a)
The Commitments shall be automatically terminated on the Expiration Date.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Agent, the Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the unused portion
of the Commitments; provided, however, that (i) each partial reduction of the
Commitments shall be in an integral multiple of $1,000,000 and (ii) the Borrower
shall not terminate or reduce the Commitments if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.11, the sum of
the Revolving Credit Exposure plus the aggregate principal amount of outstanding
Auction Loans would exceed the total Commitments.
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(c) Each reduction in the Commitments hereunder shall be made ratably
among the Banks in accordance with their respective applicable Commitments. The
Borrower shall pay to the Agent for the account of the Banks, on the date of
each termination or reduction, the Commitment Fees on the amount of the
Commitments so terminated or reduced accrued through the date of such
termination or reduction.
(d) The Borrower may request an extension of this Agreement upon 60
days' prior written notice to the Agent; provided, that, such extension will be
at the sole option of the Banks and will require the written agreement of each
Bank in order to become effective.
SECTION 2.11. Prepayment. (a) The Borrower shall have the right at any
time and from time to time to prepay any Borrowing, in whole or in part, upon at
least three Business Days' prior written or telecopy notice (or telephone notice
promptly confirmed by written or telecopy notice) to the Agent; provided,
however, that each partial prepayment shall be in an amount which is an integral
multiple of $1,000,000, and that the Borrower shall not have the right to prepay
any Auction Loan without the prior consent of the Bank thereof.
(b) On the date of any termination or reduction of the Commitments
pursuant to Section 2.10, the Borrower shall pay or prepay so much of the
Borrowings as shall be necessary in order that the aggregate principal amount of
the Revolving Credit Exposure plus the aggregate principal amount of Auction
Loans outstanding will not exceed the aggregate Commitments after giving effect
to such termination or reduction.
(c) Each notice of prepayment shall specify the prepayment date and
the principal amount of each Borrowing (or portion thereof) to be prepaid, shall
be irrevocable and shall commit the Borrower to prepay such Borrowing by the
amount stated therein on the date stated therein. All prepayments under this
Section 2.11 shall be subject to Section 2.14 but otherwise without premium or
penalty. All prepayments under this Section 2.11 shall be accompanied by accrued
interest on the principal amount being prepaid to the date of payment.
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SECTION 2.12. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, if after the date of this Agreement
there is adopted any new law, rule or regulation or any change in applicable law
or regulation or in the interpretation or administration thereof by any
governmental authority charged with the interpretation or administration thereof
(whether or not having the force of law) which shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of or credit extended by such Bank (except
any such reserve requirement which is reflected in the Eurodollar Rate) or shall
impose on such Bank or the London interbank market any other condition affecting
this Agreement or Eurodollar Loans made by such Bank, and the result of any of
the foregoing shall be to increase the cost to such Bank of making or
maintaining any Eurodollar Loan or to reduce the amount of any sum received or
receivable by such Bank hereunder or under any Notes(whether of principal,
interest or otherwise) in respect of Eurodollar Loans by an amount deemed by
such Bank to be material, then the Borrower will pay to such Bank upon demand
such additional amount or amounts as will compensate such Bank for such
additional costs incurred or reduction suffered.
(b) If any Bank shall have determined that the applicability of any
law, rule, regulation, agreement or guideline adopted after the date hereof
regarding capital adequacy, or any change in any of the foregoing or the
adoption after the date hereof of any change in any law, rule, regulation,
agreement or guideline existing on the date hereof or in the interpretation or
administration of any of the foregoing by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or any lending office of such Bank) or any
Bank's holding company with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on such Bank's capital or on the capital of such Bank's holding company, if any,
as a consequence of this Agreement or the Loans made by such Bank pursuant
hereto to a level below that which such Bank or such Bank's holding company
could
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have achieved but for such applicability, adoption, change or compliance (taking
into consideration such Bank's policies and the policies of such Bank's holding
company with respect to capital adequacy) by an amount deemed by such Bank to be
material, then from time to time the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank or such Bank's holding
company for any such reduction suffered.
(c) A certificate of each Bank setting forth in reasonable detail such
amount or amounts as shall be necessary to compensate such Bank or its holding
company as specified in paragraph (a) or (b) above, as the case may be, and the
manner in which such Bank has determined the same, shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
each Bank the amount shown as due on any such certificate delivered by it within
10 days after its receipt of the same.
(d) Failure on the part of any Bank to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital with respect to any period shall not constitute a waiver of
such Bank's right to demand compensation with respect to such period or any
other period. The protection of this Section shall be available to each Bank
regardless of any possible contention of the invalidity or inapplicability of
the law, rule, regulation, guideline or other change or condition which shall
have occurred or been imposed.
SECTION 2.13. Change in Legality. (a) Notwithstanding any other
provision herein, if any change in, or adoption of, any law or regulation or in
the interpretation thereof by any governmental authority charged with the
administration or interpretation thereof shall make it unlawful for any Bank to
make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written notice
to the Borrower and to the Agent, such Bank may:
(i) declare that Eurodollar Loans will not thereafter be made by such
Bank hereunder, whereupon any request by the Borrower for a Eurodollar
Borrowing shall, as to such Bank only, be deemed a request for an ABR Loan
unless such declaration shall be subsequently
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withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be
automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Bank shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Bank or the
converted Eurodollar Loans of such Bank shall instead be applied to repay the
ABR Loans made by such Bank in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.13, a notice to the Borrower by any
Bank shall be effective as to each Eurodollar Loan, if lawful, on the last day
of the Interest Period currently applicable to such Eurodollar Loan.
SECTION 2.14. Indemnity. The Borrower shall indemnify each Bank
against any loss or expense which such Bank may sustain or incur as a
consequence of (a) any failure by the Borrower to fulfill on the date of any
Eurodollar Borrowing hereunder the applicable conditions set forth in Article
IV, (b) any failure by the Borrower to borrow or to refinance any Eurodollar
Loan hereunder after irrevocable notice of such borrowing or refinancing has
been given pursuant to Sections 2.03 and 2.04, (c) any payment or prepayment of
a Eurodollar Loan required by any other provision of this Agreement or otherwise
made or deemed made on a date other than the last day of the Interest Period
applicable thereto or (d) any default in payment or prepay ment of the principal
amount of any Eurodollar Loan or any part thereof or interest accrued thereon,
as and when due and payable (at the due date thereof, whether by scheduled
maturity, acceleration, irrevocable notice of prepayment or otherwise)
including, in each such case, any loss or reasonable expense sustained or
incurred or to be sustained or incurred in liquidating or employing deposits
from third parties acquired to effect or maintain such Loan or any part thereof
as a Eurodollar Loan. Such loss or reasonable expense shall include an amount
equal to the excess, if any, as reasonably determined by such Bank, of
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(i) its cost of obtaining the funds for the Eurodollar Loan being paid, prepaid,
converted or not borrowed (assumed to be the Eurodollar Rate applicable thereto)
for the period from the date of such payment, prepayment, conversion or failure
to borrow to the last day of the Interest Period for such Loan (or, in the case
of a failure to borrow, the Interest Period for such Eurodollar Loan which would
have commenced on the date of such failure) over (ii) the amount of interest (as
reasonably determined by such Bank) that would be realized by such Bank in
reemploying the funds so paid, prepaid or not borrowed for such period or
Interest Period, as the case may be. A certificate of any Bank setting forth any
amount or amounts which such Bank is entitled to receive pursuant to this
Section, and the manner in which such Bank has determined the same, shall be
delivered to the Borrower and shall be conclusive absent manifest error.
SECTION 2.15. Pro Rata Treatment. Except as required under Sections
2.04 and 2.13, each Borrowing, each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans, each payment of the Commitment
Fees, each reduction of the Commitments and each refinancing of any Borrowing
with a Borrowing of any Type shall be allocated pro rata among the Banks in
accordance with their respective applicable Commitments (or, if such Commitments
shall have expired or been terminated, in accordance with the respective
principal amounts of their outstanding Loans). Each Bank agrees that in
computing such Bank's portion of any Borrowing to be made hereunder, the Agent
may, in its discretion, round each Bank's percentage of such Borrowing, computed
in accordance with Section 2.01, to the next higher or lower whole dollar
amount.
SECTION 2.16. Sharing of Setoffs. Each Bank agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Bank under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Revolving Loan or Revolving
Loans as a result of which the unpaid principal portion of its Revolving Loans
shall be
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proportionately less than the unpaid principal portion of the Revolving Loans of
any other Bank, it shall be deemed simultaneously to have purchased from such
other Bank at face value, and shall promptly pay to such other Bank the purchase
price for, a participation in the Revolving Loans of such other Bank, so that
the aggregate unpaid principal amount of the Revolving Loans and participations
in Revolving Loans held by each Bank shall be in the same proportion to the
aggregate unpaid principal amount of all Revolving Loans then outstanding as the
principal amount of its Revolving Loans prior to such exercise of banker's lien,
setoff or counterclaim or other event was to the principal amount of all
Revolving Loans outstanding prior to such exercise of banker's lien, setoff or
counter-claim or other event; provided, however, that, if any such purchase or
purchases or adjustments shall be made pursuant to this Section and the payment
giving rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustment restored without interest. The Borrower expressly
consents to the foregoing arrangements and agrees that any Bank holding a
participation in a Revolving Loan deemed to have been so purchased may exercise
any and all rights of banker's lien, setoff or counterclaim with respect to any
and all moneys owing by the Borrower to such Bank by reason thereof as fully as
if such Bank had made a Loan directly to the Borrower in the amount of such
participation.
SECTION 2.17. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder and under any other Loan Document not later than 12:00
(noon), New York City time, on the date when due in dollars to the Agent at its
offices at 000 Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx, in immediately available
funds.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
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SECTION 2.18. Taxes. (a) Any and all payments by the Borrower
hereunder shall be made, in accordance with Section 2.17, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding taxes imposed on the net income of the Agent or any Bank (or any
transferee or assignee thereof, including a participation holder (any such
entity being called a "Transferee")) and franchise taxes imposed on the Agent or
any Bank (or Transferee) by the United States or any jurisdiction under the laws
of which the Agent or any such Bank (or such Transferee) or the applicable
lending office, is organized or any political subdivision thereof (all such
nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to the Banks (or any Transferee) or the Agent, (i) the sum payable
shall be increased by the amount necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.18) such Bank (or such Transferee) or the Agent (as the case may
be) shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxing authority or
other Governmental Authority in accordance with applicable law; provided,
however, that no Transferee of any Bank shall be entitled to receive any greater
payment under this paragraph (a) than such Bank would have been entitled to
receive with respect to the rights assigned, participated or other wise
transferred unless such assignment, participation or transfer shall have been
made at a time when the circumstances giving rise to such greater payment did
not exist.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other Taxes").
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(c) The Borrower will indemnify each Bank (or Transferee) and the
Agent for the full amount of Taxes and Other Taxes paid by such Bank (or such
Transferee)or the Agent, as the case may be, and any liability (including
penalties, interest and reasonable expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted by the relevant taxing authority or other Governmental Authority. Such
indemnification shall be made within 30 days after the date any Bank (or
Transferee) or the Agent, as the case may be, makes written demand therefor. If
a Bank (or Transferee) or the Agent shall become aware that it is entitled to
receive a refund in respect of Taxes or Other Taxes as to which it has been
indemnified by the Borrower pursuant to this Section 2.18, it shall promptly
notify the Borrower of the availability of such refund and shall, within 30 days
after receipt of a request by the Borrower, apply for such refund at the
Borrower's expense. If any Bank (or Transferee) or the Agent receives a refund
in respect of any Taxes or Other Taxes as to which it has been indemnified by
the Borrower pursuant to this Section 2.18, it shall promptly notify the
Borrower of such refund and shall repay such refund to the Borrower (to the
extent of amounts that have been paid by the Borrower under this Section 2.18
with respect to such refund) within 30 days (or promptly upon receipt, if the
Borrower has requested application for such refund pursuant hereto), net of all
reasonable out-of-pocket expenses of such Bank and without interest; provided
that the Borrower, upon the request of such Bank (or such Transferee) or the
Agent, agrees to return such refund (plus penalties, interest or other charges)
to such Bank (or such Transferee) or the Agent in the event such Bank (or such
Transferee) or the Agent is required to repay such refund. Nothing contained in
this paragraph (c) shall require any Bank (or Transferee) or the Agent to make
available any of its tax returns (or any other information relating to its taxes
which it deems to be confidential); provided that Borrower, at its expense,
shall have the right to receive an opinion from a firm of independent public
accountants of recognized national standing acceptable to the Borrower that the
amount due hereunder is correctly calculated.
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by the Borrower in respect
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of any payment to any Bank (or Transferee) or the Agent, the Borrower will
furnish to the Agent, at its address referred to in Section 9.01, the original
or a certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.18 shall
survive the payment in full of the principal of and interest on all Loans made
hereunder.
(f) On or prior to the execution of this Agreement and on or before
the transfer to a Transferee, the Agent shall notify the Borrower of each Bank's
(or Transferee's) address. On or prior to the Bank's (or Transferee's) first
Interest Payment Date, and from time to time as required by law, each Bank (or
Transferee) that is organized under the laws of a jurisdiction outside the
United States shall, if legally able to do so, deliver to the Borrower and the
Agent such certificates, documents or other evidence, as required by the Code or
Treasury Regulations issued pursuant thereto, including Internal Revenue Service
Form 1001 or Form 4224 and any other certificate or statement of exemption
required by Treasury Regulation Section 1.1441-1, 1.1441-4 or 1.1441-6(c) or any
subsequent version thereof or successors thereto, properly completed and duly
executed by such Bank (or Transferee) establishing that such payment is (i) not
subject to United States Federal withholding tax under the Code because such
payment is effectively connected with the conduct by such Bank (or Transferee)
of a trade or business in the United States or (ii) totally exempt from United
States Federal withholding tax, or subject to a reduced rate of such tax under a
provision of an applicable tax treaty. Unless the Borrower and the Agent have
received forms or other documents satisfactory to them indicating that such
payments hereunder or under any Notes are not subject to United States Federal
withholding tax or are subject to such tax at a rate reduced by an applicable
tax treaty, the Borrower shall withhold taxes from such payments at the
applicable statutory rate.
(g) The Borrower shall not be required to pay any additional amounts
to any Bank (or Transferee) in respect of United States Federal withholding tax
pursuant to
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paragraph (a) above if the obligation to pay such additional amounts would not
have arisen but for a failure by such Bank (or Transferee) to comply with the
provisions of paragraph (f) above; provided, however, that the Borrower shall be
required to pay those amounts to any Bank (or Transferee) that it was required
to pay hereunder prior to the failure of such Bank (or Transferee) to comply
with the provisions of such paragraph (f).
SECTION 2.19. Termination or Assignment of Commitments Under Certain
Circumstances. (a) Any Bank (or Transferee) claiming any additional amounts
payable pursuant to Section 2.12 or Section 2.18 or exercising its rights under
Section 2.13 shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document requested by the Borrower or
to change the jurisdiction of its applicable lending office if the making of
such a filing or change would avoid the need for or reduce the amount of any
such additional amounts which may thereafter accrue or avoid the circumstances
giving rise to such exercise and would not, in the sole determination of such
Bank, be otherwise disadvantageous to such Bank (or Transferee).
(b) In the event that any Bank shall have delivered a notice or
certificate pursuant to Section 2.12 or 2.13, or the Borrower shall be required
to make additional payments under Section 2.18 to any Bank (or Transferee) or to
the Agent with respect to any Bank (or Transferee), the Borrower shall have the
right, at its own expense, upon notice to such Bank (or Transferee) and the
Agent (a) to terminate the Commitment of such Bank (or Transferee) or (b) to
require such Bank (or Transferee) to transfer and assign without recourse (in
accordance with and subject to the restrictions contained in Section 9.04) all
its interests, rights and obligations under this Agreement (other than any
outstanding Auction Loans) to another financial institution which shall assume
such obligations; provided that (i) no such termination or assignment shall
conflict with any law, rule or regulation or order of any Governmental Authority
and (ii) the Borrower or the assignee, as the case may be, shall pay to the
affected Bank (or Transferee) in immediately available funds on the date of such
termination or assignment the principal of and interest accrued to the date of
payment on the Loans made by
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it hereunder and all other amounts accrued for its account or owed to it
hereunder.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to each of the Banks that:
SECTION 3.01. Organization; Powers. Each of the Borrower and the
Significant Subsidiaries (a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, (b)
has all requisite power and authority to own its property and assets and to
carry on its business as now conducted and as proposed to be conducted, (c) is
qualified to do business in every jurisdiction where such qualification is
required, except where the failure so to qualify would not result in a Material
Adverse Effect, and (d) in the case of the Borrower, has the corporate power and
authority to execute, deliver and perform its obligations under each of the Loan
Documents and each other agreement or instrument contemplated thereby to which
it is or will be a party and to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance
by the Borrower of each of the Loan Documents and the borrowings hereunder
(collectively, the "Transactions") (a) have been duly authorized by all
requisite corporate and, if required, stockholder action and (b) will not (i)
violate (A) any provision of law, statute, rule or regulation the violation of
which could reasonably be expected to impair the validity and enforceability of
this Agreement or any other Loan Document or materially impair the rights of or
benefits available to the Banks under the Loan Documents, or of the certificate
or articles of incorporation or other constitutive documents or by-laws of the
Borrower or any Significant Subsidiary, (B) any order of any Governmental
Authority the violation of which could reasonably be expected to impair the
validity or enforce ability of this Agreement or any other Loan Document, or
materially impair the rights of or benefits available to the Banks under the
Loan Documents, or (C) any provision of any indenture or other material
agreement or instrument evidencing or relating to borrowed money to which the
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Borrower or any Significant Subsidiary is a party or by which any of them or any
of their property is or may be bound in a manner which could reasonably be
expected to impair the validity and enforceability of this Agreement or any
other Loan Document or materially impair the rights of or benefits available to
the Banks under the Loan Documents, (ii) be in conflict with, result in a breach
of or constitute (alone or with notice or lapse of time or both) a default under
any such indenture, agreement or other instru ment in a manner which could
reasonably be expected to impair the validity and enforceability of this
Agreement or any other Loan Document or materially impair the rights of or
benefits available to the Banks under the Loan Documents or (iii) result in the
creation or imposition under any such indenture, agreement or other instrument
of any Lien upon or with respect to any property or assets now owned or
hereafter acquired by the Borrower.
SECTION 3.03. Enforceability. This Agreement has been duly executed
and delivered by the Borrower and constitutes, and each other Loan Document when
executed and delivered by the Borrower will constitute, a legal, valid and
binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms.
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except
such as have been made or obtained and are in full force and effect.
SECTION 3.05. Financial Statements. The Borrower has heretofore
furnished to the Banks its consolidated balance sheets and statements of income
and statements of cash flow as of and for the fiscal year ended December 31,
1999, audited by and accompanied by the opinion of Deloitte & Touche,
independent public accountants. Such financial statements present fairly the
financial condition and results of operations of the Borrower and its
consolidated subsidiaries as of such dates and for such periods. Such balance
sheets and the notes thereto, together with the Borrower's Annual Report on Form
10-K for the fiscal year ended December 31, 1999, reflect all liabilities,
direct or contingent, of the Borrower and its consolidated Subsidiaries as of
the dates thereof which are material on a
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consolidated basis. Such financial statements were prepared in accordance with
GAAP applied (except as noted therein) on a consistent basis.
SECTION 3.06. No Material Adverse Change. Except as disclosed in the
Borrower's Annual Report on Form 10-K for the fiscal year ended December 31,
1999, in the Borrower's Form 10-Q for the fiscal quarter ended March 31, 2000
and in any document filed prior to the date of this Agreement pursuant to
Sections 13(a), 14 or 15(d) of the Securities Exchange Act of 1934, there has
been no change in the business, assets, operations or financial condition of the
Borrower and the Subsidiaries, taken as a whole, since December 31, 1999, which
could reasonably be expected to have a material adverse effect on the
creditworthiness of the Borrower.
SECTION 3.07. Litigation; Compliance with Laws. (a) Except as set
forth in the Annual Report of the Borrower on Form 10-K for the year ended
December 31, 1999, in the Borrower's Form 10-Q for the fiscal quarter ended
March 31, 2000 or in any document filed prior to the date of this Agreement
pursuant to Sections 13(a), 14 or 15(d) of the Securities Exchange Act of 1934,
there are not any actions, suits or proceedings at law or in equity or by or
before any Governmental Authority now pending or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any Subsidiary or any
business, property or rights of any such person (i) which involve any Loan Docu
ment or the Transactions or (ii) which could reasonably be anticipated,
individually or in the aggregate, to result in a Material Adverse Effect.
(b) Neither the Borrower nor any of the Subsidiaries is in violation
of any law, rule or regulation, or in default with respect to any judgment,
writ, injunction or decree of any Governmental Authority, where such violation
or default would be reasonably likely to result in a Material Adverse Effect.
SECTION 3.08. Federal Reserve Regulations. (a) Neither the Borrower
nor any of the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying Margin Stock.
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(b) No part of the proceeds of any Loan will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, (i) to
purchase or carry Margin Stock or to extend credit to others for the purpose of
purchasing or carrying Margin Stock or to refund indebtedness originally
incurred for such purpose, or (ii) for any purpose which entails a violation of,
or which is inconsistent with, the provisions of the Regulations of the Board,
including Regulation U or X.
SECTION 3.09. Investment Company Act; Public Utility Holding Company
Act. The Borrower is not (a) an "investment company" as defined in, or subject
to regulation under, the Investment Company Act of 1940 or (b) subject to
regulation as a "holding company" under the Public Utility Holding Company Act
of 1935.
SECTION 3.10. Use of Proceeds. The Borrower will use the proceeds of
the Loans only for the purposes specified in the preamble to this Agreement.
SECTION 3.11. No Material Misstatements. No information, report,
financial statement, exhibit or schedule furnished by or on behalf of the
Borrower to the Agent or any Bank in connection with the negotiation of any Loan
Document or included therein or delivered pursuant thereto contained, contains
or will contain any material misstatement of fact or, when considered together
with all reports theretofore filed with the Securities and Exchange Commission,
omitted, omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were, are
or will be made, not misleading.
SECTION 3.12. Employee Benefit Plans. Each of the Borrower and its
ERISA Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the regulations and published interpretations
thereunder. No Reportable Event has occurred as to which the Borrower or any
ERISA Affiliate was required to file a report with the PBGC, and the present
value of all benefit liabilities under each Plan (based on those assumptions
used to fund such Plan) did not, as of the last annual valuation date applicable
thereto, exceed by more than $10,000,000 the
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value of the assets of such Plan.
SECTION 3.13. Environmental and Safety Matters. Each of the Borrower
and each Subsidiary has complied with all Federal, state, local and other
statutes, ordinances, orders, judgments, rulings and regulations relating to
environmental pollution or to environmental or nuclear regulation or control or
to employee health or safety, except where noncompliance would not be reasonably
likely to result in a Material Adverse Effect. Neither the Borrower nor any
Subsidiary has received notice of any failure so to comply, except where
noncompliance would not be reasonably likely to result in a Material Adverse
Effect. The Borrower's and the Subsidiaries' plants do not manage any hazardous
wastes, hazardous substances, hazardous materials, toxic substances, toxic
pollutants or substances similarly denominated, as those terms or similar terms
are used in the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response Compensation and Liability Act, the Hazardous Materials
Transportation Act, the Toxic Substance Control Act, the Clean Air Act, the
Clean Water Act or any other applicable law relating to environmental pollution
or employee health and safety, or any nuclear fuel or other radioactive
materials, in violation of any law or any regulations promulgated pursuant
thereto, where such violation would be reasonably likely to result in a Material
Adverse Effect. The Borrower is aware of no events, conditions or circumstances
involving environmental pollution or contamination or employee health or safety
that could reasonably be expected to result in a Material Adverse Effect. The
representations and warranties set forth in this Section 3.13 are, however,
subject to any matters, circumstances or events set forth in the Borrower's
Annual Report on Form 10-K for the fiscal year ended December 31, 1999, in the
Borrower's Form 10-Q for the fiscal quarter ended March 31, 2000 and in any
document filed prior to the date of this Agreement pursuant to Sections 13(a),
14 or 15(d) of the Securities Exchange Act of 1934; provided, however, that the
inclusion of such matters, circumstances or events as exceptions (or any other
exceptions contained in the representations and warranties which refer to the
Borrower's Annual Report on Form 10-K for the fiscal year ended December 31,
1999, in the Borrower's Form 10-Q for the fiscal quarter ended March 31, 2000 or
in any document filed prior to the date of this Agreement pursuant to
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Sections 13(a), 14 or 15(d) of the Securities Exchange Act of 1934 shall not be
construed to mean that the Borrower has concluded that any such matter,
circumstance or effect is likely to result in a Material Adverse Effect.
SECTION 3.14. Significant Subsidiaries. Schedule 3.14 sets forth as of
the date hereof a list of all Significant Subsidiaries of the Borrower and the
percentage ownership interest of the Borrower therein.
ARTICLE IV. CONDITIONS OF LENDING
The obligations of the Banks to make Loans hereunder are subject to
the satisfaction of the following conditions:
SECTION 4.01. All Borrowings. On the date of each Borrowing, including
each Borrowing in which Loans are refinanced with new Loans as contemplated by
Section 2.02(e):
(a) The Agent shall have received a notice of such Borrowing as
required by Section 2.03.
(b) The representations and warranties set forth in Article III hereof
(except, in the case of a refinancing of Loans that does not increase the
sum of the Revolving Credit Exposure and the Auction Loans of any Bank
outstanding, the representations set forth in Sections 3.06 and 3.07) shall
be true and correct in all material respects on and as of the date of such
Borrowing with the same effect as though made on and as of such date,
except to the extent such representations and warranties expressly relate
to an earlier date.
(c) The Borrower shall be in compliance with all the terms and
provisions set forth herein and in each other Loan Document on its part to
be observed or performed, and at the time of and immediately after such
Borrowing no Event of Default or Default shall have occurred and be
continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date of
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such Borrowing as to the matters specified in paragraphs (b) and (c) of this
Section 4.01.
SECTION 4.02. First Borrowing. On the date of this Agreement:
(a) The Agent shall have received favorable written opinions of (i)
Paine, Hamblen, Xxxxxx, Xxxxxx & Xxxxxx, counsel for the Borrower, and (ii)
Xxxxxx, Xxxx & Priest, special counsel to the Borrower, each dated the date
of this Agreement and addressed to the Banks, to the effect set forth in
Exhibits D-1 and D-2 hereto, and the Borrower hereby instructs such counsel
to deliver such opinions to the Agent.
(b) The Agent shall have received evidence satisfactory to it and set
forth on Schedule 4.02(b) that the Borrower shall have obtained all
consents and approvals of, and shall have made all filings and
registrations with, any Governmental Authority required in order to
consummate the Transactions, in each case without the imposition of any
condition which, in the judgment of the Banks, could adversely affect their
rights or interests hereunder.
(c) All legal matters incident to this Agreement and the borrowings
hereunder shall be satisfactory to the Banks and their counsel and to
Cravath, Swaine & Xxxxx, counsel for the Agent.
(d) The Agent shall have received (i) a copy of the certificate or
articles of incorporation, including all amendments thereto, of the
Borrower, certified as of a recent date by the Secretary of State of the
state of its organization, and a certificate as to the good standing of the
Borrower as of a recent date, from such Secretary of State; (ii) a
certificate of the Secretary or Assistant Secretary of the Borrower dated
the Closing Date and certifying (A) that attached thereto is a true and
complete copy of the by-laws of the Borrower as in effect on the Closing
Date and at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the board of directors of the
Borrower
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authorizing the execution, delivery and performance of the Loan Documents
and the borrowings hereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect, (C) that
the certificate or articles of incorporation of the Borrower have not been
amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above, and
(D) as to the incumbency and specimen signature of each officer executing
any Loan Document or any other document delivered in connection herewith on
behalf of the Borrower; (iii) a certificate of another officer as to the
incumbency and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to (ii) above; and (iv) such other
documents as the Banks or their counsel or Cravath, Swaine & Xxxxx, counsel
for the Agent, may reasonably request.
(e) The Agent shall have received a certificate, dated the Closing
Date and signed by a Financial Officer of the Borrower, confirming
compliance with the conditions precedent set forth in paragraphs (b) and
(c) of Section 4.01.
(f) The Agent shall have received all Fees and other amounts due and
payable on or prior to the date of this Agreement, including all Fees
accrued to the date hereof under the Pre-Restatement Credit Agreement, this
Agreement or the fee schedule set forth in the invitation schedule and fee
schedule dated May 12, 2000.
ARTICLE V. AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Bank that so long as this
Agreement shall remain in effect or the principal of or interest on any Loan,
any Fees or any other expenses or any amounts payable under any Loan Document
shall be unpaid, unless the Required Banks shall otherwise consent in writing,
the Borrower will:
SECTION 5.01. Existence; Businesses and Proper ties. (a) Do or cause
to be done all things
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necessary to preserve, renew and keep in full force and effect its legal
existence, except as otherwise expressly permitted under Section 6.02.
(b) Do or cause to be done all things necessary to obtain, preserve, renew,
extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
utilized in the conduct of the Borrower's business except where the failure so
to obtain, preserve, renew, extend or maintain any of the foregoing would not
result in a Material Adverse Effect; maintain and operate such business in
substantially the manner in which it is presently conducted and operated, except
as otherwise expressly permitted under this Agreement; comply in all material
respects with all applicable laws, rules, regulations and orders of any
Governmental Authority, whether now in effect or hereafter enacted if failure to
comply with such requirements would result in a Material Adverse Effect; and at
all times maintain and preserve all property material to the conduct of such
business and keep such property in good repair, working order and condition and
from time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order
that the business carried on in connection therewith may be properly conducted
at all times; provided, however, that the Borrower may cause the discontinuance
of the operation or a reduction in the capacity of any of its facilities, or any
element or unit thereof including, without limitation, real and personal
properties, facilities, machinery and equipment, (i) if, in the judgment of the
Borrower, it is no longer advisable to operate the same, or to operate the same
at its former capacity, and such discontinuance or reduction would not result in
a Material Adverse Effect, or (ii) if the Borrower intends to sell and dispose
of its interest in the same in accordance with the terms of this Agreement and
within a reasonable time shall endeavor to effectuate the same.
SECTION 5.02. Insurance. (a) Maintain insurance, to such extent and
against such risks, as is customary with companies in the same or similar
businesses and owning similar properties in the same general area in which the
Borrower operates and (b) maintain such other insurance as may be required by
law. All insurance required by this
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Section 5.02 shall be maintained with financially sound and reputable insurers
or through self-insurance; provided, however, that the portion of such insurance
constituting self-insurance shall be comparable to that usually maintained by
companies engaged in the same or similar businesses and owning similar
properties in the same general area in which the Borrower operates and the
reserves maintained with respect to such self-insured amounts are deemed
adequate by the officer or officers of the Borrower responsible for insurance
matters.
SECTION 5.03. Taxes and Obligations. Pay and discharge promptly when
due all taxes, assessments and governmental charges or levies imposed upon it or
upon its income or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise which, if unpaid, might give rise to a Lien
upon such properties or any part thereof; provided, however, that such payment
and discharge shall not be required with respect to any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and the Borrower shall, to
the extent required by GAAP, have set aside on its books adequate reserves with
respect thereto.
SECTION 5.04. Financial Statements, Reports, etc. Furnish to the Agent
and each Bank:
(a) within 105 days after the end of each fiscal year, its
consolidated and consolidating balance sheets and related statements of
income and statements of cash flow, showing the financial condition of the
Borrower and its consolidated Subsidiaries as of the close of such fiscal
year and the results of its operations and the operations of such
Subsidiaries during such year, all audited by Deloitte & Touche or other
independent public accountants of recognized national standing acceptable
to the Required Banks and accompanied by an opinion of such accountants
(which shall not be qualified in any material respect) to the effect that
such consolidated financial statements fairly present the financial
condition and results of operations of the Borrower on a consolidated basis
(except as noted therein) in accordance with GAAP consistently applied;
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(b) within 50 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated and, to the extent otherwise
available, consolidating balance sheets and related statements of income
and statements of cash flow, showing the financial condition of the
Borrower and its consolidated subsidiaries as of the close of such fiscal
quarter and the results of its operations and the operations of such
subsidiaries during such fiscal quarter and the then elapsed portion of the
fiscal year, all certified by one of its Financial Officers as fairly
presenting the financial condition and results of operations of the
Borrower on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under (a)
or (b) above, a certificate of the relevant accounting firm opining on or
certifying such statements or Financial Officer (which certificate, when
furnished by an accounting firm, may be limited to accounting matters and
disclaim responsibility for legal interpretations) certifying that to the
knowledge of the accounting firm or the Financial Officer, as the case may
be, no Event of Default or Default has occurred or, if such an Event of
Default or Default has occurred, specifying the nature and extent thereof
and any corrective action taken or proposed to be taken with respect
thereto;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
it with the Securities and Exchange Commission, or any governmental
authority succeeding to any of or all the functions of said Commission, or
with any national securities exchange, or distributed to its share holders,
as the case may be; and
(e) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Borrower or any
Significant Subsidiary, or compliance with the terms of any Loan Document,
as the Agent or any Bank may
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reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the Agent and
each Bank prompt written notice of the following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) proposed to be taken with
respect thereto;
(b) the filing or commencement of, or any written threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority, against the Borrower or any Subsidiary thereof which could
reasonably be anticipated to result in a Material Adverse Effect; and
(c) any development that has resulted in, or could reasonably be
anticipated to result in, a Material Adverse Effect.
SECTION 5.06. ERISA. (a) Comply in all material respects with the
applicable provisions of ERISA and (b) furnish to the Agent and each Bank (i) as
soon as possible, and in any event within 30 days after any Responsible Officer
of the Borrower or any ERISA Affiliate either knows or has reason to know that
any Reportable Event has occurred that alone or together with any other
Reportable Event could reasonably be expected to result in liability of the
Borrower to the PBGC in an aggregate amount exceeding $10,000,000, a statement
of a Financial Officer setting forth details as to such Reportable Event and the
action proposed to be taken with respect thereto, together with a copy of the
notice, if any, of such Reportable Event given to the PBGC, (ii) promptly after
receipt thereof, a copy of any notice the Borrower or any ERISA Affiliate may
receive from the PBGC relating to the intention of the PBGC to terminate any
Plan or Plans (other than a Plan maintained by an ERISA Affiliate which is
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section
414 of the Code) or to appoint a trustee to administer any Plan or Plans and
(iii) within 10 days after the due date for filing with the PBGC pursuant to
Section 412(n) of the Code of a notice of failure to make a required installment
or other
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payment with respect to a Plan, a statement of a Financial Officer
setting forth details as to such failure and the action proposed to be taken
with respect thereto, together with a copy of such notice given to the PBGC.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Maintain all financial records in accordance with GAAP and permit
any representatives designated by any Bank to visit and inspect the financial
records and the properties of the Borrower at reasonable times and as often as
requested and to make extracts from and copies of such financial records, and
permit any representatives designated by any Bank to discuss the affairs,
finances and condition of the Borrower with the chief financial officer of the
Borrower, or other person designated by the chief financial officer, and
independent accountants therefor.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans only for
the purposes set forth in the preamble to this Agreement.
SECTION 5.09. Further Assurance. Pledge all the capital stock
(including any warrants, options or other rights entitling the Borrower to
purchase or acquire such capital stock) of Avista Capital, Inc. to the Agent for
the benefit of the Banks by August 15, 2000. Such pledge shall be made pursuant
to a pledge agreement in a form reasonably satisfactory to the Agent. Such
pledge shall not restrict, limit or encumber the Borrower's ability to conduct
any business activities of Avista Capital, Inc. or any of its affiliates
(subject to any restrictions on Avista Capital, Inc. under this Agreement as a
result of it being a Significant Subsidiary), including, but not limited to, its
decisions related to disposition of assets in whole or in part, mergers,
acquisitions, inter-company loans, dividends or other commitments.
ARTICLE VI. NEGATIVE COVENANTS
The Borrower covenants and agrees with each Bank that, so long as this
Agreement shall remain in effect or the principal of or interest on any Loan,
any Fees or any other expenses or amounts payable under any Loan Document shall
be unpaid, unless the Required Banks shall otherwise consent in
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writing, the Borrower will not:
SECTION 6.01. Liens. Create, incur, assume or permit to exist any Lien
on any property or assets (including stock or other securities of any person,
including any Subsidiary) now owned or hereafter acquired by it or on any income
or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower created by the
documents, instruments or agreements existing on the date hereof and which
are listed as exhibits to the Borrower's Annual Report on Form 10-K for the
fiscal year ended December 31, 1999, to the extent that such Liens secure
only obligations arising under such existing documents, agreements or
instruments;
(b) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower; provided that (i) such Lien is not
created in contemplation of or in connection with such acquisition and (ii)
such Lien does not apply to any other property or assets of the Borrower;
(c) the Lien of the First Mortgage;
(d) Liens permitted under the First Mortgage (whether or not such
permitted Liens cover properties or assets subject to the Lien of the First
Mortgage) and any other Liens to which the Lien of the First Mortgage is
expressly made subject;
(e) the Lien of any collateral trust mortgage or similar instrument
which would be intended to eventually replace (in one transaction or a
series of transactions) the First Mortgage (as amended, modified or
supplemented from time to time, "Collateral Trust Mortgage") on properties
or assets of the Borrower to secure bonds, notes and other obligations of
the Borrower; provided that, so long as the First Mortgage shall constitute
a Lien on properties or assets of the Borrower, the bonds, notes or other
obligations issued under the Collateral Trust Mortgage (i) shall also be
secured by an equal principal amount of bonds issued
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under the First Mortgage or (ii) shall be issued against property additions
not subject to the Lien of the First Mortgage;
(f) Liens permitted under the Collateral Trust Mortgage (whether or
not such permitted Liens cover properties or assets subject to the Lien of
the Collateral Trust Mortgage) and any other Liens to which the Lien of the
Collateral Trust Mortgage is subject;
(g) Liens for taxes, assessments or governmental charges not yet due
or which are being contested in compliance with Section 5.03;
(h) carriers', warehousemen's, mechanic's, materialmen's, repairmen's
or other like Liens arising in the ordinary course of business and securing
obligations that are not due or which are being contested in compliance
with Section 5.03;
(i) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other
social security laws or regulations;
(j) Liens incurred or created in connection with or to secure the
performance of bids, tenders, trade contracts (other than for
Indebtedness), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(k) zoning restrictions, easements, rights-of-way, restrictions on use
of real property and other similar encumbrances incurred in the ordinary
course of business which, in the aggregate, are not substantial in amount
and do not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(l) Liens (i) which secure obligations not assumed by the Borrower,
(ii) on account of which the Borrower has not and does not expect to pay
interest directly or indirectly and (iii) which exist upon real estate or
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rights in or relating to real estate in respect of which the Borrower has a
right-of-way or other easement for purposes of substations or transmission
or distribution facilities;
(m) rights reserved to or vested in any federal, state or local
governmental body or agency by the terms of any right, power, franchise,
grant, license, contract or permit, or by any provision of law, to
recapture or to purchase, or designate a purchase of or order the sale of,
any property of the Borrower or to terminate any such right, power,
franchise, grant, license, contract or permit before the expiration
thereof;
(n) Liens of judgments covered by insurance, or upon appeal and
covered by bond, or to the extent not so covered not exceeding at one time
$10,000,000 in aggregate amount;
(o) any Liens, moneys sufficient for the discharge of which shall have
been deposited in trust with the trustee or mortgagee under the instrument
evidencing such Lien, with irrevocable authority of such trustee or
mortgagee to apply such moneys to the discharge of such Lien to the extent
required for such purpose;
(p) rights reserved to or vested in any federal, state or local
governmental body or agency or other public authority to control or
regulate the business or property of the Borrower;
(q) any obligations or duties, affecting the property of the Borrower
to any federal, state or local governmental body or agency or other public
authority with respect to any authorization, permit, consent or license of
such body, agency or authority, given in connection with the purchase,
construction, equipping, testing and operation of the Borrower's utility
property;
(r) with respect to any property which the Borrower may hereafter
acquire, any exceptions or reservations therefrom existing at the time of
such acquisition or any terms, conditions, agreements,
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covenants, exceptions and reservations expressed or provided in the deeds
of other instruments, respectively, under and by virtue of which the
Borrower shall hereafter acquire the same, none of which materially impairs
the use of such property for the purposes for which it is acquired by the
Borrower;
(s) leases and subleases entered into in the ordinary course of
business;
(t) banker's Liens and other Liens in the nature of a right of setoff;
(u) Liens resulting from any transaction permitted
under Section 6.03(v);
(v) renewals, replacements, amendments, modifications, supplements,
refinancings or extensions of Liens set forth above to the extent that the
principal amount of Indebtedness secured by such Lien immediately prior
thereto is not increased and such Lien is not extended to other property
(it being understood that such limitation does not apply to the Liens
described in subsection (c), (e) or (u) above);
(w) security deposits or amounts paid into trust funds for the
reclamation of mining properties;
(x) restrictions on transfer or use of properties and assets, first
rights of refusal, and rights to acquire properties and assets granted to
others;
(y) non-consensual equitable Liens on the Borrower's tenant-in-common
or other interest in joint projects;
(z) Liens on the Borrower's tenant-in-common or other interest in
joint projects incurred by the project sponsor without the express consent
of the Borrower to such incurrence;
(aa) cash collateral contemplated under Section 2.06(i) and the pledge
of Avista Capital, Inc. stock contemplated under Section 5.09 of this
Agreement and under Section 5.09 of the $120,000,000 Amended and
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Restated Credit Agreement dated as of June 26, 2000 among the Borrower, the
banks named therein and Toronto-Dominion (Texas), Inc., as agent; and
(ab) Liens not expressly permitted in clauses (a) through (aa) of this
Section 6.01 to secure Indebtedness of the Borrower, provided that the
aggregate outstanding principal amount of the Indebtedness so secured does
not at any one time exceed 5% of the total assets of the Borrower and its
Subsidiaries, computed and consolidated in accordance with GAAP
consistently applied.
SECTION 6.02. Mergers, Consolidations and Acquisitions. Merge into or
consolidate with any other person, or permit any other person to merge into or
consolidate with it, or purchase, lease or otherwise acquire (in one transaction
or a series of transactions) all or substantially all of the assets of any other
person (whether directly by purchase, lease or other acquisition of all or
substantially all of the assets of such person or indirectly by purchase or
other acquisition of all or substantially all of the capital stock of such other
person) other than acquisitions in the ordinary course of the Borrower's
business, except that if (A) at the time thereof and immediately after giving
effect thereto no Event of Default or Default shall have occurred and be
continuing and (B) in the case of any merger or consolidation involving the
Borrower in which the Borrower is not the surviving corporation, the surviving
corporation shall assume in writing the obligations of the Borrower under this
Agreement and any other Loan Documents, then (a) the Borrower may merge or
consolidate with any Subsidiary in a transaction in which the Borrower is the
surviving corporation, (b) the Borrower may purchase, lease or otherwise acquire
from any Subsidiary all or substantially all of its assets and may purchase or
otherwise acquire all or substantially all of the capital stock of any person
who immediately thereafter is a Subsidiary,(c) the Borrower may merge with or
into, or consolidate with, any other person so long as (i) in the case where the
business of such other person, or an Affiliate of such other person, entirely or
primarily consists of an electric or gas utility business, the senior secured
long-term debt rating of the Borrower shall be at least BBB or higher by S&P and
Baa2 or higher by Xxxxx'x
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immediately after such merger or consolidation, or in the case of a merger or
consolidation in which the Borrower is not the surviving entity, the senior
secured long-term debt rating of the surviving entity or an Affiliate thereof
shall be at least BBB+ or higher by S&P and Baa1 or higher by Xxxxx'x
immediately after such merger or consolidation, or (ii) in the case where such
other person's business does not entirely or primarily consist of an electric or
gas utility business, the assets of such person at the time of such
consolidation or merger do not exceed 10% of the total assets of the Borrower
and its Subsidiaries after giving effect to such merger or consolidation,
computed and consolidated in accordance with GAAP consistently applied, and (d)
the Borrower may purchase, lease or otherwise acquire any or all of the assets
of any other person (and may purchase or otherwise acquire the capital stock of
any other person) so long as (i) the assets being purchased, leased or acquired
(or the assets of the person whose capital stock is being acquired) entirely or
primarily consist of electric or gas utility assets or (ii) in the case where
the assets being purchased, leased or acquired (or the assets of the person
whose capital stock is being acquired) do not entirely or primarily consist of
electric or gas utility assets, the assets being acquired (or the Borrower's
proportionate share of the assets of the person whose capital stock is being
acquired) do not exceed 10% of the total assets of the Borrower and its
Subsidiaries, after giving effect to such acquisition, computed and consolidated
in accordance with GAAP consistently applied.
SECTION 6.03. Disposition of Assets. Sell, lease, transfer, assign or
otherwise dispose of (in one transaction or in a series of transactions), in any
fiscal year, assets (whether now owned or hereafter acquired) which, together
with the amount of all sales, leases, transfers, assignments or other
dispositions permitted under clause (c)(ii) of the definition of Subsidiary
Event in Article I (other than sales, leases, transfers, assignments or other
dispositions permitted under clauses (c)(ii) (A) through (C) in such
definition), exceed 10% of the assets of the Borrower and its Subsidiaries as of
the end of the most recent fiscal year, computed and consolidated in accordance
with GAAP consistently applied, except (i) the Borrower may, in any fiscal year,
sell, lease, transfer, assign or otherwise dispose of assets in the ordinary
course of
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business which, together with the amount of all sales, leases, transfers,
assignments or other dispositions in the ordinary course permitted under clause
(c)(ii)(A) of the definition of Subsidiary Event in Article I, do not exceed 5%
of the assets of the Borrower and its Subsidiaries as of the end of the most
recent fiscal year, computed and consolidated in accordance with GAAP
consistently applied, (ii) to the extent permitted under Section 5.03, 6.01 or
Section 6.02, (iii) the Borrower may sell, lease, transfer, assign or otherwise
dispose of its interest in the Washington Public Power Supply System Nuclear
Project No. 3 in accordance with the settlement agreement among the Borrower,
the Washington Public Power Supply System and Bonneville Power Administration,
as the same may be amended, modified or supplemented from time to time, (iv) the
Borrower may sell, lease, transfer, assign or otherwise dispose of its interests
in the Colstrip and Centralia Projects and related assets and (v) the Borrower
may sell, lease, transfer, assign or otherwise dispose (including by way of
capital contribution) of, or create, incur, assume or permit to exist Liens on,
receivables and related properties or interests therein.
SECTION 6.04. Consolidated Total Debt to Consolidated Total
Capitalization Ratio. Permit the ratio of Consolidated Total Debt to
Consolidated Total Capitalization to be, at the end of any fiscal quarter,
greater than 0.60 to 1.00 for the preceding twelve-month period, and to remain
greater than 0.60 to 1.00 for a period of 30 days.
SECTION 6.05. Public Utility Regulatory Borrowing Limits. Incur actual
borrowings or commitments or issued and outstanding debt of the Borrower in
excess of the amount authorized (i) by statute without necessity of public
utility commission approval and/or (ii) by orders of public utility commissions,
as in effect from time to time.
SECTION 6.06. Guarantees. Incur Guarantees of or by the Borrower with
respect to Avista Energy, Inc. in excess of $50,000,000 in the aggregate or
Guarantees of or by the Borrower with respect to Avista Energy, Inc. with a
duration of one year or longer.
ARTICLE VII. EVENTS OF DEFAULT
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In case of the happening (and during the continuance) of any of the
following events ("Events of Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings hereunder, or any
representation, warranty, statement or information contained in any report,
certificate, financial statement or other instrument furnished in
connection with or pursuant to any Loan Document, shall prove to have been
false or misleading in any material respect when so made, deemed made or
furnished;
(b) default shall be made in the payment of any principal of any Loan
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan
or any Fee or any other amount (other than an amount referred to in (b)
above) due under any Loan Document, when and as the same shall become due
and payable, and such default shall continue unremedied for a period of
five Business Days;
(d) default shall be made in the due observance or performance by the
Borrower of any covenant, condition or agreement contained in Section
5.01(a) or 5.05 or in Article VI;
(e) default shall be made in the due observance or performance by the
Borrower of any covenant, condition or agreement contained in any Loan
Document (other than those specified in (b), (c) or (d) above) and such
default shall continue unremedied for a period of 30 days after notice
thereof from the Agent or any Bank to the Borrower;
(f) the Borrower or any Significant Subsidiary shall (i) fail to pay
any principal or interest, regardless of amount, due in respect of any
Indebtedness when the aggregate unpaid principal amount
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is in excess of $25,000,000, when and as the same shall become due and
payable (after expiration of any applicable grace period), or (ii) fail to
observe or perform any other term, covenant, condition or agreement (after
expiration of any applicable grace period) contained in any agreement or
instrument evidencing or governing any such Indebtedness if the effect of
any failure referred to in this clause (ii) is to cause, or to permit the
holder or holders of such Indebtedness or a trustee on its or their behalf
(with or without the giving of notice, the lapse of time or both) to cause,
such Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of the Borrower or any Significant Subsidiary, or of a
substantial part of the property or assets of the Borrower or a Significant
Subsidiary, under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal or state bankruptcy, insolvency,
receivership or similar law, (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower
or any Significant Subsidiary or for a substantial part of the property or
assets of the Borrower or a Significant Subsidiary or (iii) the winding-up
or liquidation of the Borrower or any Significant Subsidiary; and such
proceeding or petition shall continue undismissed, or an order or decree
approving or ordering any of the foregoing shall be entered and continue
unstayed and in effect, for a period of 60 or more days;
(h) the Borrower or any Significant Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11
of the United States Code, as now constituted or hereafter amended, or any
other Federal or state bankruptcy, insolvency, receivership or similar law,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition described
in (g) above, (iii) apply for or consent to the appointment of a receiver,
trustee,
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custodian, sequestrator, conservator or similar official for the Borrower
or any Significant Subsidiary or for a substantial part of the property or
assets of the Borrower or any Significant Subsidiary, (iv) file an answer
admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of
creditors, (vi) become unable, admit in writing its inability or fail
generally to pay its debts as they become due or (vii) take any action for
the purpose of effecting any of the foregoing;
(i) a final judgment or judgments shall be rendered against the
Borrower, any Significant Subsidiary or any combination thereof for the
payment of money with respect to which an aggregate amount in excess of
$25,000,000 is not covered by insurance and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to levy upon assets or properties of the Borrower or any
Significant Subsidiary to enforce any such judgment;
(j) a Reportable Event or Reportable Events, or a failure to make a
required installment or other payment (within the meaning of Section
412(n)(l) of the Code), shall have occurred with respect to any Plan or
Plans that reasonably could be expected to result in liability of the
Borrower to the PBGC or to a Plan in an aggregate amount exceeding
$25,000,000 and, within 30 days after the reporting of any such Reportable
Event to the Agent or after the receipt by the Agent of the statement
required pursuant to Section 5.06, the Agent shall have notified the
Borrower in writing that (i) the Required Banks have made a determination
that, on the basis of such Reportable Event or Reportable Events or the
failure to make a required payment, there are reasonable grounds (A) for
the termination of such Plan or Plans by the PBGC, (B) for the appointment
by the appropriate United States District Court of a trustee to administer
such Plan or Plans or (C) for the imposition of a lien in favor of a Plan
and (ii) as a result thereof an Event of Default exists hereunder; or a
trustee shall be appointed by a United States
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Xxxxxxxx Xxxxx to administer any such Plan or Plans; or the PBGC shall
institute proceedings to terminate any Plan or Plans;
(k) there shall occur a Subsidiary Event; or
(l) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Agent, at the request of the Required Banks,
shall, by notice to the Borrower, take either or both of the following actions,
at the same or different times: (i) terminate forthwith the Commitments and (ii)
declare the Loans then outstanding to be forthwith due and payable in whole or
in part, whereupon (A) the Commitments will automatically be terminated and (B)
the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and any unpaid accrued Fees and all other liabilities
of the Borrower accrued hereunder and under any other Loan Document, shall
become forthwith due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding; and in any event with respect to the Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
ARTICLE VIII. THE AGENT
In order to expedite the various transactions contemplated by this
Agreement, Toronto Dominion (Texas), Inc. is hereby appointed to act as Agent on
behalf of the Banks. Each of the Banks hereby irrevocably authorizes and
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directs the Agent to take such action on behalf of such Bank under the terms and
provisions of this Agreement, and to exercise such powers hereunder as are
specifically delegated to or required of the Agent by the terms and provisions
hereof, together with such powers as are reasonably incidental thereto. The
Agent is hereby expressly authorized on behalf of the Banks, without hereby
limiting any implied authority, (a) to receive on behalf of each of the Banks
any payment of principal of or interest on the Loans outstanding hereunder and
all other amounts accrued hereunder paid to the Agent, and to distribute to each
Bank its proper share of all payments so received as soon as practicable; (b) to
give notice promptly on behalf of each of the Banks to the Borrower of any event
of default specified in this Agreement of which the Agent has actual knowledge
acquired in connection with its agency hereunder; and (c) to distribute promptly
to each Bank copies of all notices, agreements and other material as provided
for in this Agreement as received by such Agent.
Neither the Agent nor any of its directors, officers, employees or
agents shall be liable to any Bank as such for any action taken or omitted by
any of them hereunder except for its or his own gross negligence or wilful
misconduct, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in connection herewith or be
required to ascertain or to make any inquiry concerning the performance or
observance by the Borrower of any of the terms, conditions, covenants or
agreements of this Agreement. The Agent shall not be responsible to the Banks
for the due execution, genuineness, validity, enforceability or effectiveness of
this Agreement or any other instrument to which reference is made herein. The
Agent shall in all cases be fully protected in acting, or refraining from
acting, in accordance with written instructions signed by the Required Banks,
and, except as otherwise specifically provided herein, such instructions and any
action taken or failure to act pursuant thereto shall be binding on all the
Banks. The Agent shall, in the absence of knowledge to the contrary, be entitled
to rely on any paper or document believed by it in good faith to be genuine and
correct and to have been signed or sent by the proper person or persons. Neither
the Agent nor any of its directors, officers, employees or agents shall have any
responsibility to the
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Borrower on account of the failure or delay in performance or breach by any Bank
of any of its obligations hereunder or to any Bank on account of the failure of
or delay in performance or breach by any other Bank or the Borrower of any of
their respective obligations hereunder or in connection herewith. The Agent may
execute any and all duties hereunder by or through agents or employees and shall
be entitled to advice of legal counsel selected by it with respect to all
matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Agent and its affiliates may accept deposits from, lend money to
and generally engage in any kind of business with the Borrower or other
affiliate thereof as if it were not the Agent.
Each Bank recognizes that applicable laws, rules, regulations or
guidelines of governmental authorities may require the Agent to determine
whether the transactions contemplated hereby should be classified as "highly
lever aged" or assigned any similar or successor classification, and that such
determination may be binding upon the other Banks. Each Bank understands that
any such determination shall be made solely by the Agent based upon such factors
(which may include, without limitation, the Agent's internal policies and
prevailing market practices) as the Agent shall deem relevant and agrees that
the Agent shall have no liability for the consequences of any such
determination.
Each Bank agrees (i) to reimburse the Agent in the amount of such
Bank's pro rata share (based on its Commitment hereunder) of any expenses
incurred for the benefit of the Banks by the Agent, including reasonable counsel
fees and compensation of agents and employees paid for services rendered on
behalf of the Banks, not reimbursed by the Borrower and (ii) to indemnify and
hold harmless the Agent and any of its directors, officers, employees or agents,
on demand, in the amount of its pro rata share, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against it in its capacity as the Agent or
any of them in any way relating to or arising out of this Agreement or any
action
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taken or omitted by it or any of them under this Agreement, to the extent not
reimbursed by the Borrower; provided, however, that no Bank shall be liable to
the Agent for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the gross negligence or wilful misconduct of the Agent or any of its
directors, officers, employees or agents.
Each Bank acknowledges that it has, independently and without reliance
upon the Agent or any other Bank and based on such documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Bank also acknowledges that it will, independently and
without reliance upon the Agent or any other Bank based on such documents and
information as it shall deem appropriate at the time, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any
related agreement or any document furnished hereunder.
The Agent may execute any of its duties under this Agreement by or
through agents or attorneys selected by them using reasonable care and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
The Agent shall not be responsible for the negligence or misconduct of any
agents or attorneys selected and authorized to act by it with reasonable care
unless the damage complained of directly results from an act or failure to act
on part of the Agent which constitutes gross negligence or wilful misconduct.
Delegation to an attorney or agent shall not release the Agent from its
obligation to perform or cause to be performed the delegated duty.
The Documentation Agent and the Syndication Agent shall not have any
rights, powers, obligations, liabilities, responsibilities or duties under this
Agreement other than those applicable to all Banks as such. Without limiting the
foregoing, none of the Banks identified as "Documentation Agent" or "Syndication
Agent" shall have or be deemed to have any fiduciary relationship with any Bank.
Each Bank acknowledges that it has not relied, and will not rely, on any of the
Banks so identified in deciding to enter into this Agreement or in taking or not
taking action hereunder.
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ARTICLE IX. MISCELLANEOUS
SECTION 9.01. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed or sent by telecopy, graphic scanning or other telegraphic
communications equipment of the sending party, as follows:
(a) if to the Borrower, to it at East 0000 Xxxxxxx Xxxxxx (99202),
X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxxx 00000, Attention of the Senior Vice
President and Chief Financial Officer (Telecopy No. 509-482-4879);
(b) if to the Agent, to it at 000 Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000, Attention of Xxxxxxxx Xxxxxxxx (Telecopy No. 713-951-9921); and
(c) if to a Bank, to it at its address (or telecopy number) set forth
in Schedule 2.01 or in the Assignment and Acceptance pursuant to which such
Bank shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or other telegraphic communications equipment of the sender, or on the
date five Business Days after dispatch by certified or registered mail if
mailed, in each case delivered, sent or mailed (properly addressed) to such
party as provided in this Section 9.01 or in accordance with the latest
unrevoked direction from such party given in accordance with this Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties, including, without limitation, any indemnities
and reimbursement obligations, made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Banks and shall survive the making by the
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Banks of the Loans, and the execution and delivery to the Banks of any Notes
evidencing such Loans, regardless of any investigation made by the Banks, or on
their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any Fee or any other amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid and so long as the Commitments have not been terminated.
SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Agent and when the
Agent shall have received copies hereof which, when taken together, bear the
signatures of each Bank, and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Agent and each Bank and their respective successors
and assigns, except that the Borrower shall not have the right to assign its
rights hereunder or any interest herein without the prior consent of all the
Banks.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and permitted assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrower, the Agent or the Banks
that are contained in this Agreement shall bind and inure to the benefit of
their respective successors and permitted assigns.
(b) Each Bank (including the Agent when acting as a Bank) may assign
to one or more assignees all or a portion of its interests, rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Revolving Credit Commitment and the same portion of the
applicable Loan or Loans at the time owing to it other than any Auction Loans,
which may, but need not, be assigned); provided, however, that (i) except in the
case of an assignment to a Bank or an Affiliate of such Bank, the Borrower and
the Agent must give their prior written consent to such assignment (which
consent shall not be unreasonably withheld), (ii) that no assignee of any Bank
shall be entitled to receive any greater payment or protection under Sections
2.12, 2.13(a), 2.14 or 2.18 than such Bank would have been entitled to receive
with respect to the rights assigned or otherwise transferred unless such
assignment or
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transfer shall have been made at a time when the circumstances giving rise to
such greater payment did not exist, (iii) each such assignment shall be of a
constant, and not a varying, percentage of all the assigning Bank's rights and
obligations under this Agreement, except that this clause (iii) shall not apply
to rights in respect of outstanding Auction Loans, (iv) the amount of the
Commitment of the assigning Bank subject to each such assignment (determined as
of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Agent) shall not be less than $5,000,000 (or, if less, the
total amount of their Commitments), (v) the parties to each such assignment
shall execute and deliver to the Agent an Assignment and Acceptance and a
processing and recordation fee of $5,000 and (vi) the assignee, if it shall not
be a Bank, shall deliver to the Agent an Administrative Questionnaire. Upon
acceptance and recording pursuant to paragraph (e) of this Section 9.04, from
and after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five Business Days after the execution thereof,
(A) the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Bank under this Agreement and (B) the assigning Bank thereunder
shall, to the extent of the interest assigned by such Assignment and Acceptance,
be released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Bank's rights and obligations under this Agreement, such Bank shall cease to be
a party hereto but shall continue to be entitled to the benefits of Sections
2.12, 2.14, 2.18 and 9.05, as well as to any Fees accrued for its account and
not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Bank thereunder and the assignee thereunder shall be deemed to confirm
to and agree with each other and the other parties hereto as follows: (i) such
assigning Bank warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and that its
Commitment, and the outstanding balances of its Loans, in each case without
giving effect to assignments thereof which have not become effective, are as set
forth in such Assignment and Acceptance; (ii) except as set forth in (i) above,
such
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assigning Bank makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of the Borrower or any Subsidiary or the
performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 5.04 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (v) such assignee will independently and
without reliance upon the Agent, such assigning Bank or any other Bank and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (vi) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Agent by the terms hereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees that
it will perform in accordance with their terms all the obligations which by the
terms of this Agreement are required to be performed by it as a Bank.
(d) The Agent shall maintain a copy of each Assignment and Acceptance
delivered to it including the recordation of the names and addresses of the
Banks, and the Commitment of, and principal amount of the Loans owing to,
each Bank pursuant to the terms hereof from time to time (the "Register"). The
Agent and the Banks may treat each person whose name is recorded in the Register
pursuant to the terms hereof as a Bank hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower and
any Bank, at any reasonable time and from time to time upon reasonable prior
notice.
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(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Bank and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Bank hereunder), the processing and recordation fee referred to in paragraph (b)
above and, if required, the written consent of the Borrower and the Agent to
such assignment, the Agent shall (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Banks. Upon the request of the assignee, the Borrower, at
its own expense, shall execute and deliver to the Agent, a new Note or Notes to
the order of such assignee in a principal amount equal to the applicable
Commitment assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Bank has retained a Commitment, upon the request of the assigning
bank, the Borrower shall execute and deliver a new Note to the order of such
assigning Bank in a principal amount equal to the applicable Commitment retained
by it. Canceled Notes shall be returned to the Borrower.
(f) Each Bank may without the consent of the Borrower or the Agent
sell participations to one or more banks or other entities in all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans owing to it and any Notes held by it); provided,
however, that (i) such Bank's obligations under this Agreement shall remain
unchanged, (ii) such Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the participating banks or
other entities shall be entitled to the benefit of the cost protection
provisions contained in Sections 2.12, 2.14 and 2.18 to the same extent as if
they were Banks (provided, that the amount of such benefit shall be limited to
the amount in respect of the interest sold to which the seller of such
participation would have been entitled had it not sold such interest) and (iv)
the Borrower, the Agent and the other Banks shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement, and such Bank shall retain the sole right to enforce the
obligations of the Borrower relating to the Loans and to approve any amendment,
modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers decreasing any fees payable
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hereunder or the amount of principal of or the rate at which interest is payable
on the Loans, extending any scheduled principal payment date or date fixed for
the payment of interest on the Loans or changing or extending the Commitments).
(g) Any Bank or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Bank by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information.
(h) Notwithstanding anything to the contrary contained herein, any
Bank (a "Granting Bank") may grant to a special purpose funding vehicle (an
"SPC") the option to fund all or any part of any Loan that such Granting Bank
would otherwise be obligated to fund pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to fund any Loan,
and (ii) if an SPC elects not to exercise such option or otherwise fails to fund
all or any part of such Loan, the Granting Bank shall be obligated to fund such
Loan pursuant to the terms hereof. The funding of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Bank to the same extent, and as if,
such Loan were funded by such Granting Bank. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or payment under this Agreement
for which a Bank would otherwise be liable for so long as, and to the extent,
the Granting Bank provides such indemnity or makes such payment. Notwithstanding
anything to the contrary contained in this Agreement, any SPC may disclose on a
confidential basis any non-public information relating to its funding of Loans
to any rating agency, commercial paper dealer or provider of any surety or
guarantee to such SPC. This paragraph may not be amended without the prior
written consent of each Granting Bank, all or any part of whose Loan is being
funded by an SPC at the time of such amendment.
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(i) Any Bank may at any time assign for security purposes all or any
portion of its rights under this Agreement and any Notes issued to it to a
Federal Reserve Bank; provided that no such assignment shall release a Bank from
any of its obligations hereunder.
(j) Subject to Section 6.02, the Borrower shall not assign or delegate
any of its rights or duties hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to pay all
reasonable out-of-pocket expenses incurred by the Agent in connection with the
preparation of this Agreement and the other Loan Documents or in connection with
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions hereby contemplated shall be consummated) or
incurred by the Agent or any Bank in connection with the enforcement or
protection of their rights in connection with this Agreement and the other Loan
Documents or in connection with the Loans made or the Notes issued hereunder,
including the fees, charges and disbursements of Cravath, Swaine & Xxxxx,
counsel for the Agent, and, in connection with any such amendment, modification
or waiver or any such enforcement or protection, the fees, charges and
disbursements of any other internal or external counsel for the Agent or any
Bank. The Borrower further agrees that it shall indemnify the Banks from and
hold them harmless against any documentary taxes, assessments or charges made by
any Governmental Authority by reason of the execution and delivery of this
Agreement or any of the other Loan Documents.
(b) The Borrower agrees to indemnify the Agent and each Bank and each
of their respective directors, officers, employees and agents (each such person
being called an "Indemnitee") against, and to hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel fees, charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or as
a result of (i) the execution or delivery of this Agreement or any other Loan
Document or any agreement or instrument contemplated thereby, the
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performance by the parties thereto of their respective obligations thereunder or
the consummation of the Transactions and the other transactions contemplated
thereby, (ii) the use of the proceeds of the Loans or (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are deter mined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the Agent or any Bank. All amounts due under this
Section 9.05 shall be payable on written demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing and the Loans shall have been accelerated as set
forth in Article VII, each Bank is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Bank (or bank
Controlling such Bank) to or for the credit or the account of the Borrower
against any of and all the obligations of the Borrower now or hereafter existing
under this Agreement and other Loan Documents held by such Bank. The rights of
each Bank under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Bank may have. Any Bank shall
provide the Borrower with written notice promptly after exercising its rights
under this Section.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
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SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the Agent
or any Bank in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agent and the Banks hereunder and
under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies which they would otherwise have. No waiver of any provision
of this Agreement or any other Loan Document or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on the Borrower in any case shall entitle the Borrower to any
other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Banks; provided, however, that no
such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan, or waive or excuse any such payment or any part
thereof, or decrease the rate of interest on any Loan, without the prior written
consent of each Bank affected thereby, (ii) change or extend the Commitment or
decrease the Commitment Fees of any Bank without the prior written consent of
such Bank, or (iii) amend or modify the provisions of Section 2.15, the
provisions of this Section or the definition of "Required Banks", without the
prior written consent of each Bank; provided further that no such agreement
shall amend, modify or otherwise affect the rights or duties of the Agent
hereunder without the prior written consent of the Agent. Each Bank and each
holder of a Note shall be bound by any waiver, amendment or modification
authorized by this Section regardless of whether its Note shall have been marked
to make reference thereto, and any consent by any Bank or holder of a Note
pursuant to this Section shall bind any
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person subsequently acquiring a Note from it, whether or not such Note shall
have been so marked.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything
herein or in any Notes to the contrary, if at any time the applicable interest
rate, together with all fees and charges which are treated as interest under
applicable law (collectively the "Charges"), as provided for herein or in any
other document executed in connection herewith, or otherwise contracted for,
charged, received, taken or reserved by any Bank, shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by such Bank in accordance with applicable law, the rate of
interest payable under any Note held by such Bank, together with all Charges
payable to such Bank, shall be limited to the Maximum Rate.
SECTION 9.10. Entire Agreement. This Agreement and the other Loan
Documents constitute the entire contract between the parties relative to the
subject matter hereof. Any previous agreement among the parties with respect to
the subject matter hereof is superseded by this Agreement and the other Loan
Documents. Nothing in this Agreement or in the other Loan Documents, expressed
or implied, is intended to confer upon any party other than the parties hereto
and thereto any rights, remedies, obligations or liabilities under or by reason
of this Agreement or the other Loan Documents.
SECTION 9.11. Waiver of Jury Trial. Each party hereto hereby waives,
to the fullest extent permitted by applicable law, any right it may have to a
trial by jury in respect of any litigation directly or indirectly arising out
of, under or in connection with this Agreement or any of the other Loan
Documents. Each party hereto (a) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing
waiver and (b) acknowledges that it and the other parties hereto have been
induced to enter into this Agreement and the other Loan Documents, as
applicable, by, among other things, the mutual waivers and certifications in
this Section 9.11.
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SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become effec
tive as provided in Section 9.03.
SECTION 9.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the Agent
or any Bank may otherwise have to bring any action or proceeding relating to
this Agreement or the other Loan Documents against the Borrower or its
properties in the courts of any
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jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this agreement or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
WITNESS the due execution hereof as of the date first above written.
AVISTA CORPORATION,
by /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President and
Treasurer
TORONTO DOMINION (TEXAS),
INC., as Agent,
by /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
THE BANK OF NEW YORK, as
Documentation Agent,
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by /s/ Xxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A, as
Syndication Agent,
by /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
TORONTO DOMINION (TEXAS), INC.,
by /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
THE BANK OF NEW YORK,
by /s/ Xxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.,
by /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
FIRST SECURITY BANK, N.A.,
by /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title:
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FLEET NATIONAL BANK,
by /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice
President
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK,
by /s/ Xxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
U.S. BANK, NATIONAL ASSOCIATION,
by /s/ Xxxxxxx X. Xxxx
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
XXXXX FARGO BANK, N.A.,
by /s/ Xxx Xxxx
--------------------------------
Name: Xxx Xxxx
Title: Vice President
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EXHIBIT A
[FORM OF]
NOTE
$__________________ June 26, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, the undersigned, AVISTA CORPORATION, a Washington
corporation (the "Borrower"), hereby promises to pay to the order of
_______________________ (the "Bank"), at the office of Toronto Dominion (Texas),
Inc., (the "Agent"), at 000 Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, (i) on
the last day of each Interest Period, as defined in the $140,000,000 Amended and
Restated Revolving Credit Agreement dated as of June 26, 2000 (the "Credit
Agreement"), among the Borrower, the Banks named therein and the Agent, the
aggregate unpaid principal amount of all Loans (as defined in the Credit
Agreement) made to the Borrower by the Bank pursuant to the Credit Agreement to
which such Interest Period applies and (ii) on the Expiration Date (as defined
in the Credit Agreement) the aggregate unpaid principal amount of all Loans made
to the Borrower by the Bank pursuant to the Credit Agreement, in lawful money of
the United States of America in immediately available funds, and to pay interest
from the date hereof on the principal amount hereof from time to time
outstanding, in like funds, at said office, at the rate or rates per annum and
payable on the dates provided in the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue
principal and, to the extent permitted by law, overdue interest from their due
dates at the rate or rates provided in the Credit Agreement.
The Borrower hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
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All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates and
maturity dates thereof shall be endorsed by the holder hereof on the schedule
attached hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof, or otherwise recorded by such holder
in its internal records; provided, however, that the failure of the holder
hereof to make such a notation or any error in such a notation shall not affect
the obligations of the Borrower under this Note.
This Note is one of the Notes referred to in the Credit Agreement,
which, among other things, contains provisions for the acceleration of the
maturity hereof upon the happening of certain events, for optional and mandatory
prepayment of the principal hereof prior to the maturity hereof and for the
amendment or waiver of certain provisions of the Credit Agreement, all upon the
terms and conditions therein specified. This Note shall be construed in
accordance with and governed by the laws of the State of New York and any
applicable laws of the United States of America.
AVISTA CORPORATION
by
----------------------------
Name:
Title:
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Loans and Payments
Amount Unpaid Name of
and Payments Principal Person
Type/Class Maturity ------------------- Balance of Making
Date of Loan Date Principal Interest Note Notation
----- ----------- -------- ------------------- ---------- ---------
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201
EXHIBIT B
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the $140,000,000 Amended and Restated Credit
Agreement dated as of June 26, 2000 (as in effect from time to time, the "Credit
Agreement"), among Avista Corporation, a Washington corporation (the
"Borrower"), the banks listed on Schedule 2.01 thereto (the "Banks") and Toronto
Dominion (Texas), Inc., as agent for the Banks (in such capacity, the "Agent").
Terms defined in the Credit Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the Effective Date set forth on the reverse
hereof, the interests set forth on the reverse hereof (the "Assigned Interest")
in the Assignor's rights and obligations under the Credit Agreement, including,
without limitation, the interests set forth on the reverse hereof in the
Commitment of the Assignor on the Effective Date and Revolving Loans [and
Auction Loans] owing to the Assignor which are outstanding on the Effective
Date, together with unpaid interest accrued on the assigned Revolving Loans [and
Auction Loans] to the Effective Date, and the amount, if any, set forth on the
reverse hereof of the Fees accrued to the Effective Date for the account of the
Assignor. Each of the Assignor and the Assignee hereby makes and agrees to be
bound by all the representations, warranties and agreements set forth in Section
9.04(c) of the Credit Agreement, a copy of which has been received by each such
party. From and after the Effective Date (i) the Assignee shall be a party to
and be bound by the provisions of the Credit Agreement and, to the extent of the
interests assigned by this Assignment and Acceptance, have the rights and
obligations of a Bank thereunder and under the Loan Documents and (ii) the
Assignor shall, to the extent of the interests assigned by this Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Credit Agreement.
2. This Assignment and Acceptance is being delivered to the Agent
together with (i) if the Assignee is
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organized under the laws of a jurisdiction outside the United States, the forms
specified in Section 2.18(f) of the Credit Agreement, duly completed and
executed by such Assignee, (ii) if the Assignee is not already a Bank under the
Credit Agreement, an Administrative Questionnaire in the form of Exhibit C to
the Credit Agreement and (iii) a processing and recordation fee of $5,000.
3. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment):
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Percentage
Assigned of
Facility and
Commitment
Thereunder (set
forth, to at
least 8 decimals,
Principal Amount as a percentage
Assigned (and of the Facility
identifying and the aggregate
information as Commitments of
to individual all Banks
Facility Auction Loans) thereunder)
---------------- ----------------- ------------------
Commitment Assigned: $ %
Revolving Loans: $ %
Auction Loans: $ %
Fees Assigned (if any): $ %
The terms set forth above and on
the reverse side hereof are
hereby agreed to: Accepted:
_________________________, as Assignor TORONTO DOMINION (TEXAS),
INC., as Agent
By:____________________________ By:_________________________
Name: Name:
Title: Title:
________________________, as Assignee Title:
By:____________________________
Name:
93
000
XXXXXX XXXXXXXXXXX
By:_________________________
Name:
Title:
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205
EXHIBIT C
Administrative Questionnaire
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206
EXHIBIT D-1
Opinion of Counsel for the Borrower
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207
EXHIBIT D-2
Opinion of Special Counsel to the Borrower
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SCHEDULE 2.01
Banks
Bank Commitment
---- ----------
Toronto Dominion (Texas), Inc. $21,550,000.00
000 Xxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
With copies to:
Toronto-Dominion Bank U.S.A. Division
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xx. Xxxxx Xxxx
Telecopy: (000) 000-0000
Bank of America, N.A. $21,550,000.00
000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telecopy: (000) 000-0000
The Bank of New York $21,550,000.00
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
First Security Bank, N.A. $8,075,000.00
000 Xxxxx 0xx Xxxxxx
Xxxxx, XX 00000
Attention: Mr. Xxxxx Xxxx
Telecopy: (000) 000-0000
Fleet National Bank $13,475,000.00
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
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Attention: Xxxxx Xxxxx
Telecopy: (000) 000-0000
Xxxxxx Guaranty Trust Company of New York $13,475,000.00
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
U.S. Bank $10,750,000.00
0000 Xxxxx Xxxxxx
00xx Xxxxx
XXX000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxx
Telecopy: (000) 000-0000
Xxxxx Fargo Bank, National Association $10,750,000.00
000 X. Xxxxxxxxx Xxxxxx
Xxxxx 000
0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxx Xxxx
Telecopy: (000) 000-0000
---------------
$121,175,000.00
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SCHEDULE 3.14
Significant Subsidiaries
Name Percent Ownership
---- -----------------
Avista Capital, Inc. 100%
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SCHEDULE 4.02(b)
Statutes and Orders of Governmental Authorities
1. Statute of Washington authorizing borrowings of one year or less without
approval and/or Order(s) of the Washington Utilities and Transportation
Commission.
2. Statute of Oregon authorizing borrowings of one year or less without approval
and/or Order(s) of the Oregon Public Utility Commission.
3. Statute of Idaho authorizing borrowings of one year or less without approval
and/or Order(s) of the Idaho Public Utilities Commission.
4. Statute of California authorizing borrowings of one year or less without
approval and/or Order(s) of the California Public Utilities Commission.
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